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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10650
Non-Argument Calendar
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D.C. Docket No. 5:16-cr-00003-MTT-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILLIP POWELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(December 4, 2017)
Before MARCUS, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Phillip Powell appeals his 52-month sentence, imposed after he pled guilty
to possession with intent to distribute methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C). On appeal, Powell argues that the district court erred by
applying a two-level enhancement for possession of a firearm during a drug
offense under United States Sentencing Guidelines (“USSG”) § 2D1.1(b)(1). After
careful review, we affirm.
I.
In April 2015, a government narcotics task force executed a search warrant
at Powell’s home. As police approached the door, they saw Powell and Joshua
James seated at a table. A search found 34.16 grams of methamphetamine and
$450 in cash on Powell’s person. On the table, the officers found four handguns,
four bags of ammunition, four magazines for the handguns, one set of digital
scales, and a bag containing 2.1 grams of marijuana. During his post-arrest
interview, Powell said James owned the guns and had brought them over. 1 He
claimed James was showing him the guns when the police arrived. Powell
admitted he touched more than one gun. He also said he had the
methamphetamine and cash on him because he sold the drug to make money.
Based on this information, Powell’s presentence report (“PSR”) applied a
two-level enhancement for possession of a dangerous weapon in connection with a
1
Only one gun was registered to James.
2
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drug offense under USSG § 2D1.1(b)(1). Powell objected, arguing that he did not
possess any weapon and the guns found on the table were not clearly connected to
his drug offense. At sentencing, the district court overruled the objection, finding
that the government had met its burden for applying the enhancement based on the
evidence found at Powell’s home as well as his admissions in his post-arrest
interview. The court also determined that Powell had failed to meet his burden in
response.
II.
We review a district court’s factual findings under USSG § 2D1.1(b)(1) for
clear error and the application of the Guidelines to those facts de novo. United
States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006) (per curiam). “Commentary
and Application Notes to the Sentencing Guidelines are binding on the courts
unless they contradict the plain meaning of the text of the Guidelines.” United
States v. Murrell, 368 F.3d 1283, 1288 n.4 (11th Cir. 2004).
III.
Sentencing Guideline § 2D1.1(b)(1) adds a two-point enhancement if (1) a
dangerous weapon, including a firearm, is (2) possessed (3) in connection with a
drug offense. USSG § 2D1.1(b)(1). Application Note 11 states, “The
enhancement should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” Id. cmt. n.11(A).
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Powell primarily contends that Application Note 11 is a “plainly erroneous
interpretation” of the enhancement’s text because “presence” is not coextensive
with “possession,” and thus is not binding on this Court. He argues possession
only encompasses actual or constructive possession, and the government did not
show by a preponderance of the evidence that he possessed the guns. He also
argues he showed any connection between the guns and drug offense was “clearly
improbable.”
Here, the district court did not err by applying the two-level enhancement.
We do not disagree with Powell’s argument that the Guidelines require the
government to show he “possessed” the firearm, whether actually or
constructively. See United States v. Villarreal, 613 F.3d 1344, 1359 (11th Cir.
2010). But we have consistently held that constructive possession exists when the
defendant has control over the premises where the gun is found. See id. (finding
constructive possession when “a fellow drug dealer[] attested to the presence of
two semiautomatic firearms on a table in a marijuana stash house ‘controlled’ by
Villarreal”); see also United States v. Hall, 46 F.3d 62, 63–64 (11th Cir. 1995) (per
curiam) (noting “constructive possession suffices to support [the § 2D1.1(b)(1)]
enhancement” and affirming enhancement’s application when firearm was found in
defendant’s bedroom along with “scales, a ziplock bag containing cocaine residue,
and a large amount of cash”). Given the guns were found at Powell’s house, on
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top of the table at which he was sitting, and he admitted to touching them, there
was enough evidence to support the district court’s finding, by a preponderance of
the evidence, that Powell constructively possessed the firearms. 2 See Villarreal,
613 F.3d at 1359.
The government also established that the guns were connected to the
offense. “[C]onduct that meets the § 2D1.1(b)(1) possession standard will not, in
all cases, show a ‘connection’ between the firearm and the additional felony
offense.” United States v. Carillo-Ayala, 713 F.3d 82, 90 (11th Cir. 2013).
However, “proximity between guns and drugs, without more, is sufficient to meet
the government’s initial burden under § 2D1.1(b)(1).” Id. at 91. In response to
this type of proximity evidence, a defendant must show that a connection between
the weapon and the offense is “clearly improbable.” United States v. Stallings, 463
F.3d 1218, 1220 (11th Cir. 2006). As the district court noted here, Powell and
James were “sitting around a table with all of the tools of the trade[:] the drugs, the
scales, the money, the guns.” This was sufficient to shift the burden to Powell to
show the connection between the firearms and his offense was “clearly
improbable.” See Carillo-Ayala, 713 F.3d at 90–91. The district court did not err
in finding he failed to make this showing.
AFFIRMED.
2
Because we conclude there was sufficient evidence to support constructive possession,
we do not address whether there was also sufficient evidence to support actual possession.
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