PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 23 2001
THOMAS K. KAHN
No. 99-12367 CLERK
________________________
D. C. Docket No. 98-08105 CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BYRON KEITH THOMAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 23, 2001)
Before CARNES and MARCUS, Circuit Judges, and HAND*, District Judge.
_______________________
*
Honorable William B. Hand, U.S. District Judge for the Southern District of Alabama,
sitting by designation.
CARNES, Circuit Judge:
On June 29, 1998, a confidential informant met with Byron Keith Thomas at
his residence and bought one rock of crack cocaine from him for $20.00. The same
informant met with Thomas again on July 8 of that same year at or near his
residence, and again purchased a rock of crack cocaine for $20.00. On July 15,
1998, an officer engaged in surveillance of Thomas’ residence observed Thomas
exchange money for what appeared to be a rock of crack cocaine. A search
warrant was executed on Thomas’ residence two days later. The search turned up a
rifle wrapped inside a comforter located in a closet near the front door of the house.
A second weapon, another rifle, was found inside Thomas’ pickup truck which was
parked in the driveway of the residence. As for cash, $110.00 was found in a
wallet containing Thomas’ driver’s license, and $1,200.00 in cash was found on
the top of a dresser in the living room. No cocaine was found at Thomas’
residence, and no fingerprints were recovered from the weapons.
Thomas was charged in an indictment with one count of unlawful possession
of firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2),
and two counts of possession with intent to distribute crack cocaine, in violation of
21 U.S.C. § 841(a)(1). The possession with intent to distribute counts arose from
the June 29 and July 8, 1998 transactions with the confidential informant. After a
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jury panel had been selected, Thomas pleaded guilty to the two drug counts, but
proceeded to trial on the firearms count.
Before opening statements, Thomas moved the court to exclude certain
testimony relating to the drug transactions in which he had been involved, because
he had pleaded guilty to the counts stemming from those transactions. The district
court, however, denied the motion and admitted that testimony at trial on the
grounds that it was relevant to prove Thomas had knowingly possessed the
firearms. The court found that the probative value of that evidence outweighed any
prejudice. The court gave the jury a limiting instruction, stating: “[T]he testimony
regarding drug activity may be admitted simply for the limited purpose of looking
at whether the government is able to establish that these guns were knowingly
possessed.”
Thomas presented as his sole witness his wife. She testified that after
finding the two rifles in her son’s room she placed one in the closet and the other in
the truck without ever telling her husband about them. She also claimed that the
cash found during the search belonged to her. Notwithstanding the testimony of
Thomas’ wife, the jury convicted him of the firearms count.
At sentencing, Thomas sought a two-level downward adjustment for
acceptance of responsibility based on his guilty plea to the two drug counts. The
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district court indicated that it would grant such a reduction if it were authorized to
do so, but the court concluded that under the law of this circuit it lacked the
authority to grant the reduction because Thomas had failed to accept responsibility
for all three of the crimes charged against him in the indictment. In this appeal,
Thomas raises four issues.
I.
First, Thomas contends that the district court erred in admitting at his trial on
the firearms count evidence of the drug transactions in which he had engaged, the
transactions that had led to the two counts to which he had pleaded guilty before
the trial on the firearms count began. One of the elements of the crime of being a
felon in possession of a firearm, and the only element that was in dispute at the
trial of this case, is that the felon was knowingly in possession of the firearm. See
United States v. Billue, 994 F.2d 1562, 1565 n.2 (11th Cir. 1993). At trial Thomas
took the position that the rifles were not his and that he had not been aware of their
presence. We review evidentiary rulings for an abuse of discretion. See United
States v. Walker, 59 F.3d 1196, 1198 (11th Cir. 1995).
In a similar situation, the Court of Appeals for the Ninth Circuit held that
evidence of possession of illegal drugs is relevant to determining whether a
defendant knowingly possessed a weapon found in close proximity to drugs. See
4
United States v. Butcher, 926 F.2d 811, 815 (9th Cir. 1991). In that case, drugs
found in the truck the defendant was driving at the time of his arrest were held to
be relevant to proving that he knowingly possessed, in violation of § 922(g)(1), a
weapon found in the same vehicle.1 Id. The Court noted the strong correlation
between narcotics sales and the possession of firearms and held that the presence
of the illegal drugs was “inextricably intertwined” with the possession of the
weapon found in the defendant’s truck. Id. at 816. In this type of situation, the
Court held that the policies underlying Rule 404(b) are inapplicable where some of
the offenses committed in a single criminal episode become “other acts” merely
because the defendant is not indicted for all possible crimes. Id.2
Similarly, the Court of Appeals for the Eighth Circuit has held that evidence
of drugs and “drug paraphernalia” (electronic scales, a razor blade, a sifter, one-
gram vials, and a funnel) is admissible to prove possession by a convicted felon of
firearms found in the same room, in violation of 18 U.S.C. App. § 1202(a)(1).3 See
United States v. Simon, 767 F.2d 524, 527 (8th Cir. 1985). The Court reasoned
1
Similar to Thomas’ trial, Butcher’s defense was that he was unaware of the presence of
the gun and his wife testified that the gun belonged to her, she placed it in the truck, and she
never told him it was there.
2
Those policies would similarly be inapplicable here, where the defendant pleaded guilty
to some, but not all, of the charges stemming from a single criminal episode.
3
Section 1202 was the statutory forerunner of § 922(g). See United States v. Buggs, 904
F.2d 1070, 1075 n.8 (7th Cir. 1990).
5
that because of the known correlation between drug dealing and weapons, evidence
the defendant was engaged in packaging drugs at the time of his arrest tended to
prove that the guns found in the room were knowingly in his possession. Id.4
The Court of Appeals for the Eighth Circuit in United States v. Fuller, 887
F.2d 144, 147 (8th Cir. 1989), again held that the district court did not abuse its
discretion in admitting “drug paraphernalia” (which is not further defined) into
evidence, this time in order to show the motive of a defendant charged with
violating 18 U.S.C. § 922(g)(1). The district court in that case excluded several
capsules of heroin found in the apartment where the defendant was arrested for
possession of a sawed-off shotgun, ruling that the prejudice outweighed the
probative value. Id. The Eighth Circuit, however, cited its earlier decision in
Simon for the proposition that there is a “close and well-known connection
between firearms and drugs” and, with little discussion, held that the drug
4
The Court of Appeals for the First Circuit has held that portions of a tape-recorded
conversation between a defendant, charged with unlawful firearm possession by a convicted
felon, and an informant in which the defendant offered to sell Valium were improperly admitted
because the prejudicial value of that evidence outweighed its probative value under Rule 403.
See United States v. Currier, 821 F.2d 52, 56 (1st Cir. 1987). Central to that conclusion in
Currier was the fact that “the government presented ample other proof that the defendant in fact
possessed the gun,” including a recorded conversation in which the defendant negotiated with an
undercover agent about the sale of the gun and touted its use, id. at 54-56, and in that case “the
defendant did not argue that the gun he was charged with possessing could have belonged to
someone else in his apartment,” id. at 56 n.6. By contrast, that is precisely what the defendant in
this case argued, and the evidence against him was not nearly as ample as that against the
defendant in Currier.
6
paraphernalia was not inadmissible evidence of other crimes under Rule 404(b).
Id.
Thomas points out that his situation is distinguishable because no drugs
were found during the July 17 search of his residence during which the weapons
were found. We hold, however, that the evidence of his drug trafficking was in
sufficiently close proximity, temporally and physically, to be relevant to proving
that he knowingly possessed the weapons. The fact that Thomas was engaged in
selling crack from his home is relevant evidence from which to infer that he
knowingly possessed rifles found in the closet of that home and in his truck parked
in the driveway of that home.5 Indeed, although the drugs in Butcher were found at
the same time and in the same place as the handgun found in that defendant’s
truck, weapons later found in his apartment were also admitted to prove knowing
possession of the handgun. Butcher, 926 F.2d at 816.
5
The evidence of drug sales by Thomas at his residence, coupled with (1) Thomas’ 1997
conviction for discharging a firearm from a vehicle in connection with a robbery during drug-
related transactions, and (2) the large amount of cash found at Thomas’ residence during the July
17 search, supports the inference that Thomas was using the weapons found at his residence to
protect the drug business he was conducting there. See Butcher, 926 F.2d at 816 (noting “nexus
between guns and narcotics, and between guns and other guns”); Simon, 767 F.2d at 527
(“Firearms are known ‘tools of the trade’ of narcotics dealing because of the dangers inherent in
that line of work.”) (citation omitted); see also United States v. Martinez, 938 F.2d 1078, 1083
(10th Cir. 1991) (“in admitting firearms and large amounts of cash, courts have recognized the
high level of violence that is not uncommonly associated with the drug distribution business and
the prevalence in this business of large-scale cash transactions”) (citations omitted).
7
Moreover, we have previously held, like the Ninth Circuit, that the policies
underlying Rule 404(b)6 are inapplicable when some of the offenses committed as
part of a single criminal episode become “other acts” merely because the defendant
is not indicted for all of his actions, see United States v. Aleman, 592 F.2d 881,
885 (5th Cir. 1979), or, as here, where the defendant pleads guilty to some of the
charges. The evidence of Thomas’ drug trafficking at his residence did not amount
to the use of bad character evidence to convict Thomas of being a felon in
possession of firearms because the two offenses were not “wholly separate and
independent crimes.” See id. The evidence of Thomas’ drug trafficking was
admitted to prove knowing possession of the firearms, not character.
We note also that the district court gave the jury an appropriate limiting
instruction that the testimony of drug sales by Thomas was only to be used for the
purpose of determining knowing possession of the firearms. Considering all the
circumstances, we hold that the district court did not abuse its discretion by finding
6
Rule 404(b) is intended to prevent use of a defendant’s bad character to convict him of
the charged offense. See United States v. Aleman, 592 F.2d 881, 885 (5th Cir. 1979) (“The
extrinsic acts rule is based on the fear that the jury will use evidence that the defendant has, at
other times, committed bad acts to convict him of the charged offense.”).
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that the probative value of the evidence was not substantially outweighed by unfair
prejudice.7
II.
The second issue Thomas raises involves admission into evidence over his
objection of his 1997 conviction for discharging a firearm from a vehicle, the facts
of which arose in connection with a robbery during drug-related transactions.
Thomas did not raise this issue in his initial brief to us, and only mentions it in a
cursory fashion in his reply brief. Accordingly, Thomas has abandoned the issue.
See United States v. Stinson, 97 F.3d 466, 470 n.2 (11th Cir. 1996) (“Issues that
clearly are not designated in the initial brief ordinarily are considered abandoned.”)
(citation and quotation marks omitted); Hartsfield v. Lemacks, 50 F.3d 950, 953
(11th Cir. 1995) (same); United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir.
7
Thomas also argues that the district court improperly admitted evidence of his drug
dealing to prove his motive for possessing the firearms (i.e., that he possessed his firearms to
protect his drug dealing). He points out that we have held that § 922(g) is a strict liability
offense, see United States v. Deleveaux, 205 F.3d 1292, 1298 (11th Cir. 2000), and concludes
that evidence as to his motive for possessing the firearms is improper.
Although the crime of being a felon in possession of a firearm does not require any
specific intent, see United States v. Jones, 143 F.3d 1417, 1419 (11th Cir. 1998), the evidence
relating to Thomas’ drug dealing proves not only his motive for possessing the firearms, but also
that he knowingly possessed the firearms. As such, it was properly admitted to prove one of the
elements of the offense. See Deleveaux, 205 F.3d at 1298 (“The prosecution need show only
that the defendant consciously possessed what he knew to be a firearm.”).
9
1984) (arguments made for the first time in a reply brief are not properly before the
Court).
III.
The third issue Thomas raises concerns the district court’s denial of his
request for a U.S.S.G. § 3E1.1(a) two-level reduction in his offense level for
acceptance of responsibility. Although sympathetic to Thomas’ request, the
district court denied it based on United States v. Bourne, 130 F.3d 1444 (11th Cir.
1997). That case involved a defendant who had pleaded guilty to three counts of
bank robbery, and had been awarded the two-level reduction authorized by §
3E1.1(a). Id. at 1446. However, the defendant had been denied the additional
level of reduction authorized by § 3E1.1(b) when the guilty plea evidencing an
acceptance of responsibility is provided in a timely enough fashion to be of extra
benefit and value to the government. Id. at 1446-47. The guilty plea to one of the
three robberies charged in the indictments in Bourne had been sufficiently timely,
but not so the guilty plea to the other two robberies. Id. Rejecting the defendant’s
argument that one out of three was good enough, we held that: “[t]o be entitled to
an adjustment a defendant must accept responsibility for each crime to which he is
being sentenced,” and explained the rationale was that otherwise a defendant
would receive a benefit on the sentence for all the crimes for which he was
10
convicted even though he had not accepted responsibility for all of them. Id. at
1447 (citations omitted).
Although Bourne dealt with the additional one-level reduction under §
3E1.1(b), its reasoning is equally applicable to the basic two-level reduction under
subsection (a) of the same provision. Other circuits that have addressed this and
similar issues have reached the same conclusion. See United States v. Chambers,
195 F.3d 274, 277-79 (6th Cir. 1999) (defendant not entitled to sentence reduction
under § 3E1.1 where he stipulated at trial to only one of the three counts of which
he was convicted); United States v. Ginn, 87 F.3d 367, 370-71 (9th Cir. 1996)
(defendant not entitled to three-point downward adjustment under § 3E1.1 when he
does not accept responsibility for all of the counts of which he is convicted);
United States v. Kleinebreil, 966 F.2d 945, 952-53 (5th Cir. 1992) (defendant not
entitled to two-level reduction under § 3E1.1(a) where he only accepted
responsibility for two of the three counts of which he was convicted); United States
v. McDowell, 888 F.2d 285, 292-93 (3d Cir. 1989) (downward adjustment under §
3E1.1 is made only after all counts are combined and no adjustment is available
where defendant obstructed justice as to one of the three counts to which he
pleaded guilty).
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The decision line of the other circuits makes good sense. When a defendant
indicted on multiple counts goes to trial on any of those counts, the systemic costs
of trial are not obviated although they may be reduced to some extent. In the same
vein, a defendant who is unwilling to accept responsibility for some of the charges
against him has not really “come clean” and faced up to the full measure of his
criminal culpability. We align ourselves with the other circuits that have addressed
the issue and hold that acceptance of responsibility is all or nothing under § 3E1.1.
A defendant who fails to accept responsibility for all of the crimes he has
committed and with which he has been charged is entitled to nothing under §
3E1.1.
IV.
The fourth and final issue Thomas raises concerns the decision in Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Ordinarily, the maximum
sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g), is ten years. 18 U.S.C. § 924(a)(2). However, § 924(e)(1) authorizes a
punishment of not less than fifteen years (which means up to life imprisonment,
see United States v. Brame, 997 F.2d 1426, 1428 (11th Cir. 1993)) for violation of
§ 922(g) where the defendant has previously been convicted of three violent
felonies or serious drug offenses. That provision authorized the district court to
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sentence Thomas to 295-months.8 But, Thomas says, the indictment in the case did
not charge him with having been convicted of the necessary three prior offenses,
and the jury did not find beyond a reasonable doubt that he had been convicted of
those offenses. Thomas contends that absent inclusion in the indictment and
reflection in the jury verdict, his prior convictions cannot affect the maximum
sentence to which he is exposed.
Thomas recognizes that his contention is inconsistent with Almendarez-
Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), but he argues that
the Supreme Court indicated in Apprendi that it may overrule Almendarez-Torres
on some future occasion. Thomas’ urging that we should get ahead of the Supreme
Court and beat it to the punch by overruling Almendarez-Torres ourselves
overlooks the very basic fact that we cannot overrule Supreme Court decisions. As
we explained in United States v. Guadamuz-Solis, 232 F.3d 1363 (11th Cir. 2000),
we are bound to follow Almendarez-Torres unless and until the Supreme Court
itself overrules that decision.
AFFIRMED.
8
Thomas also pleaded guilty to two counts of possession with intent to distribute cocaine
base, in violation of 21 U.S.C. § 841(a)(1). He received a sentence of 240 months as to each of
those counts, which he does not challenge here. The sentences as to all three counts are to be
served concurrently.
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