United States v. Charles

                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                        November 3, 2006
                            FOR THE FIFTH CIRCUIT
                            _____________________                   Charles R. Fulbruge III
                                                                            Clerk
                                 No. 06-30324
                            _____________________

UNITED STATES OF AMERICA,

                                                        Plaintiff - Appellee,

                                      versus

BERNARD ALLEN CHARLES, also known as Bernard Charles,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
________________________________________________________________

Before JOLLY, DAVIS, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Bernard Allen Charles (“Charles”) was indicted for possession

with intent to distribute more than 50 grams of cocaine base

(“crack”) in violation of 21 U.S.C. § 841(a)(1), possession of a

firearm   by   a    convicted     felon,   in    violation   of   18    U.S.C.     §

922(g)(1),     possession    of   a   firearm    in   furtherance      of   a   drug

trafficking crime, in violation of 18 U.S.C. §§ 924 (c)(1)(A) and

(c)(1)(B)(ii), and two counts of forfeiture pursuant to 21 U.S.C.

§ 853 and 18 U.S.C. § 924(d)(1).                Subsequently, the government

filed a superseding indictment that added additional charges for

possession of an unregistered silencer in violation of 26 U.S.C. §

5861(d) and possession of a silencer without a serial number in

violation of 26 U.S.C. § 5861(i).
       Prior to trial, Charles moved to suppress all the physical

evidence discovered at the time of his arrest and subsequently

seized pursuant to a search warrant.    This motion was denied and he

was convicted by a jury on all counts.      After the trial, Charles

filed a written motion for a judgment of acquittal, which the

district court also denied. Charles was sentenced to 620 months of

imprisonment.    On appeal, Charles challenges the denial of both

motions. Because we find no error, we affirm his conviction on all

counts.

                                 I.

       On September 15, 2003, Chief Brannon Decou of the Broussard

Police Department received an anonymous tip that Bernard Charles

was storing narcotics in a storage facility on Louisiana Highway

182.    The tipster also informed Chief Decou that Charles drove a

white four-door Dodge pick-up truck.      Chief Decou contacted the

facility to verify the tip and was given a list of tenants, which

indicated that unit F-19 was leased by Paula Charles.    Chief Decou

then confirmed that Paula and Bernard Charles shared the same

address, that Paula Charles was the registered owner of a white

Dodge pick-up, and that Bernard Charles was the subject of several

outstanding warrants, most for traffic offenses, both in Broussard

and in neighboring jurisdictions.     With the consent of the storage

facility owner, Chief Decou brought a drug dog to sweep the F

building and the dog alerted on unit F-19, the unit rented to Paula

Charles.

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       Chief Decou did not attempt to obtain an arrest warrant for

Charles.      On the morning of September 17, 2003, Chief Decou,

Sergeant Darryl Vernon, and Chief Deputy Timothy Picard began

conducting surveillance on the Charles’s storage unit.            Just after

8:00 a.m., the officers saw a white four-door Dodge pick-up enter

the storage facility. Deputy Picard observed through binoculars as

the driver opened the unit, entered it, brought some envelopes back

to the truck, and reentered the unit.           At this point, the officers

decided to arrest Charles.

       Picard and Vernon approached the unit with their guns drawn.

When they reached the entrance, Charles was standing between the

left   wall   of   the   storage   unit   and    the   driver’s   door   of   a

convertible parked inside the unit.         When the officers identified

themselves, Charles dropped an envelope into the open convertible.

Charles was ordered out of the unit onto the ground, where he was

arrested and cuffed without incident.            As Charles was being read

his Miranda rights and escorted to a police cruiser, Picard entered

the unit and checked inside, under, and around the convertible to

ensure that there were not other occupants in the unit.                  While

inside the unit, Picard noticed that the envelope Charles had

dropped into the convertible, now open on the front seat, contained

a substance he recognized as crack cocaine.                 He also saw a

partially disassembled firearm on top of a cardboard box in the

corner of the storage unit.



                                     3
       Once the preliminary sweep was complete, Picard “froze” the

scene and the officers obtained a search warrant based in part upon

Picard’s observations while in the unit.              Upon executing the

warrant, officers seized (1) a partially disassembled SWD model M12

.380   caliber   semi-automatic   pistol,   (2)   a    homemade   silencer

threaded to match that weapon, (3) a total quantity of 447.18 grams

of crack cocaine, and (4) approximately $3,000 in currency.

                                  II.

                                  A.

       Charles contends on appeal that the district court erred in

denying his motion to suppress the evidence obtained from the

storage unit because, he argues, the initial warrantless entry into

the unit was unconstitutional and the results of that entry led the

officers to seek a search warrant.      In reviewing the denial of a

motion to suppress, “the district court’s findings of facts are

reviewed for clear error, viewing the evidence in the light most

favorable to the government.”     United States v. Waldrop, 404 F.3d

365, 368 (5th Cir. 2005) (citing United States v. Cantu, 230 F.3d

148, 150 (5th Cir. 2000)).   The district court’s conclusions of law

are reviewed de novo. United States v. Lopez-Moreno, 420 F.3d 420,

429 (5th Cir. 2005) (citing United States v. Hicks, 389 F.3d 514,

526 (5th Cir. 2004)).    The panel may affirm the district court’s

decision on any basis established by the record.         United States v.

Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999) (citing United

States v. McSween, 53 F.3d 684, 687 n.3 (5th Cir. 1995)).

                                   4
                                     B.

      Warrantless searches “are per se unreasonable under the Fourth

Amendment - subject only to a few specifically established and well

delineated exceptions.”       United States v. Paige, 136 F.3d 1012,

1022 (5th Cir. 1998) (quoting Minnesota v. Dickerson, 508 U.S. 366,

372    (1993))   (internal    quotations      and    citations     omitted   in

original).    An arrest may be accompanied by a search incident to

that arrest, to prevent the arrestee from accessing a weapon or

destroying evidence.     United States v. Green, 324 F.3d 375, 378

(5th Cir. 2003) (citing Chimel v. California, 395 U.S. 752, 763

(1969)).    This type of search is limited to the arrestee’s person

and to the area within his immediate control.                 Id.     In some

circumstances, police may also conduct a protective sweep of the

area around an arrest scene, which may be “no more than a cursory

inspection of those spaces where a person may be found” and “may

last[] no    longer   than   is   necessary   to    dispel   the    reasonable

suspicion of danger” nor “longer than the police are justified in

remaining on the premises.”       United States v. Gould, 364 F.3d 578,

587 (5th Cir.) (en banc) (quoting Maryland v. Buie, 494 U.S. 325,

335-36 (1990)) (alteration in original), cert. denied, 543 U.S. 955

(2004). Charles argues that the search performed by Officer Picard

falls under neither of these exceptions.            He asserts that because

he was arrested outside of the storage unit, no area inside the

unit was within his immediate control at the time of arrest.                 He

also maintains that, because the officers on the scene could have

                                     5
had no “reasonable suspicion” that any other individuals were

present in the storage unit, a protective sweep was not justified.

     Charles fails to recognize, however, that under the Supreme

Court’s   holding   in   Maryland   v.   Buie,   the   police   may,   “as   a

precautionary matter and without probable cause or reasonable

suspicion, look in closets or other spaces immediately adjoining

the place of arrest from which an attack could be launched.”             494

U.S. at 334 (emphasis added). Testimony offered at trial indicated

that Charles was arrested just at the entrance to the open storage

unit, which measured approximately 10 feet wide and 25 feet deep.

Officer Picard entered the storage unit to ensure that no other

person was hiding in, under, or around the convertible.                Under

Buie, Officer Picard’s cursory sweep of the unit immediately

adjacent to the site of the arrest was permissible, even without

probable cause or reasonable suspicion.1         Because Officer Picard’s

entrance into the storage unit was lawful, the district court did

not err in denying the motion to suppress.2




     1
        The government argued, and the district court found, that
Picard’s survey of the storage unit was based on his concern that
another individual might be there.
     2
        We note that although “[t]he seizure of obviously
incriminating evidence found during a protective sweep is
constitutionally permissible pursuant to the plain view doctrine,”
the arresting officers in this case took the additional precaution
of sealing the scene and obtaining a search warrant before removing
any evidence. Waldrop, 404 F.3d at 369 (citing United States v.
Munoz, 150 F.3d 401, 411 (5th Cir. 1998)).

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                                 III.

                                  A.

     Charles also argues on appeal that the district court erred in

denying his motion for acquittal.       He maintains that the evidence

at trial was insufficient to show that he possessed the firearm

found in the storage unit in furtherance of a drug trafficking

offense as required by 18 U.S.C. § 924(c)(1)(A).           Secondly, he

argues -- in a one-sentence footnote -- that because the silencer

was not attached to the firearm when it was found, the jury’s

finding that the firearm was “equipped with a silencer” pursuant to

18 U.S.C. § 924(c)(1)(B) was not supported by the evidence.              We

review each issue in turn.

     The district court’s denial of a motion for judgment of

acquittal is reviewed de novo.    United States v. Delgado, 256 F.3d

264, 273 (5th Cir. 2001) (citing United States v. Myers, 104 F.3d

76, 78 (5th Cir. 1997)).     The jury’s verdict will be affirmed if

any rational trier of fact could have found that the evidence

established   the   essential   elements   of   the   offense   beyond    a

reasonable doubt.     Jackson v. Virginia, 443 U.S. 307, 318-19

(1979).   In conducting this inquiry, we must examine the evidence

as a whole and construe it in the light most favorable to the

verdict, drawing all reasonable inferences to support the verdict.

Delgado, 256 F.3d at 273-74.




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                                         B.

     In deciding whether Charles possessed the gun in furtherance

of his drug trafficking, we first note that the “mere presence” of

a firearm at the scene of drug activity does not alone amount to

possession in furtherance of that activity. Rather, the government

must present “evidence more specific to the criminal defendant,

showing that his or her possession actually furthered the drug

trafficking offense.”          United States v. Ceballos-Torres, 218 F.3d

409, 414 (5th Cir. 2000).         This court considers a list of factors

in   determining whether a firearm is used “in furtherance” of a

drug-trafficking offense:             (1) the type of drug activity being

conducted; (2) the accessibility of the firearm; (3) the type of

weapon;   (4)    whether   the     weapon     is   stolen;     (5)   whether   the

possession is lawful; (6) whether the gun is loaded; (7) the

weapon’s proximity to drugs or drug profits; and (8) the time and

circumstances under which the gun is found.              Id. at 414-15.

     The evidence introduced at Charles’s trial showed that the

weapon discovered in the storage unit was a .380 caliber semi-

automatic “Mack” pistol. Although disassembled, it could have been

made ready for use in short order.            The weapon was found in close

proximity to over 400 grams of crack cocaine and a large amount of

currency.       The   weapon    was    also   located   near    an   unregistered

silencer modified to fit it.            Furthermore, as a convicted felon,

Charles was not permitted to possess any firearm for any purpose.

Considering the evidence presented, the jury reasonably could have

                                         8
found that Charles possessed the weapon in furtherance of a drug

trafficking offense.

     Charles’s arguments to the contrary are not persuasive.    He

advocates at length for the application of the Sixth Circuit rule

in United States v. Mackey, which requires that for a firearm to be

possessed in furtherance of a drug crime, it “must be strategically

located so that it is quickly and easily available for use.”   265

F.3d 457, 462 (6th Cir. 2001).   Because the firearm at issue was

found unloaded and partially disassembled, Charles maintains that

it could not have been quickly and easily available for use.   Even

if we were to adopt the Mackey rule as binding on this court,

however, the fact that the firearm at issue was not ready for

immediate use does not mean that it was not “quickly and easily

available for use.”    The record shows that the semi-automatic

pistol was operable and that a person familiar with the weapon

could have quickly reassembled it for use. Even under his proposed

test, therefore, Charles’s argument fails.

     Charles also maintains that the circumstances surrounding the

discovery of the firearm cannot support his conviction because the

firearm was found in a locked storage unit leased to someone other

than Charles (i.e. Paula Charles); furthermore no evidence was

presented that he ever sold drugs out of the storage unit or that

he expected anyone to be present the day the firearm was seized.

Charles notes that most of the drugs were found in the convertible,

which was not registered to him and that none of his prints were

                                 9
lifted off the gun or silencer.     Although Charles is correct that

the evidence presented at trial did not rule out any theory of

innocence, the evidence is certainly enough that a reasonable trier

of fact could have concluded that the elements of the offense were

established beyond a reasonable doubt. See United States v. Resio-

Trejo, 45 F.3d 907, 911 (5th Cir. 1995) (en banc) (“It is not

necessary that the evidence exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except

that of guilt.”) (quoting United States v. Bell, 678 F.2d 547, 549

(5th Cir. 1982)), aff’d on other grounds, 462 U.S. 356 (1983).          We

have upheld convictions under this statute on the basis of similar

factual scenarios.    See Ceballos-Torres, 218 F.3d at 415 (9 mm

Glock handgun found together with 569.8 grams of cocaine and $1,360

in cash in defendant’s bedroom); United States v. Starks, 145 Fed.

Appx. 939, 941 (5th Cir. 2005) (loaded .38 revolver and 200 grams

of cocaine base were found in a locked bedroom to which defendant

had a key) (per curiam) (unpublished opinion); United States v.

Coleman, 145 Fed. Appx. 859, 860 (5th Cir. 2005) (a firearm, drugs,

and two magazines loaded with ammunition were found in defendant’s

dresser) (per curiam) (unpublished opinion).        In short, the sum of

the relevant evidence presented at trial, as outlined in the

Ceballos-Torres   factors,   is   sufficient   to   support   the   jury’s

finding that Charles possessed the firearm in furtherance of a drug

trafficking crime.

                                   C.

                                   10
     With respect to the silencer, Charles contends that because it

was not attached to the firearm when it was found, the jury’s

finding that the firearm was “equipped with a silencer” pursuant to

18 U.S.C. § 924(c)(1)(B)(ii) is not supported by the evidence.

Charles   raises   this   argument   in    a   one-sentence   footnote   and

provides no authority for the proposition.           Inadequately briefed

issues are deemed abandoned.     Dardar v. LaFourche Realty Co., 985

F.2d 824, 831 (5th Cir. 1993) (citing Friou v. Phillips Petroleum

Co., 948 F.2d 972, 974 (5th Cir. 1991)); Harris v. Plastics Mfg.

Co., 617 F.2d 438, 440 (5th Cir. 1980).              A single conclusory

sentence in a footnote is insufficient to raise an issue for

review. See Beazley v. Johnson, 242 F.3d 248, 270 (5th Cir. 2001).

However, we do note that the record shows that the unregistered

silencer was found in close proximity to the firearm for which it

was specially threaded.     Thus, the evidence appears sufficient to

support the jury’s finding that the firearm was equipped with the

silencer.

                                     IV.

     For all of the foregoing reasons, the district court’s denial

of the motion to suppress and its denial of               the motion for

acquittal are

                                                                 AFFIRMED.




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