United States v. Khondaker , 263 F. App'x 693 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS February 5, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 06-5172
v. (D.C. No. 05-CR-134-CVE)
(N.D. Okla.)
MOSTAFA MOHD KHONDAKER,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, BALDOCK, and GORSUCH, Circuit Judges.
Mostafa Mohd Khondaker appeals his conviction on four counts of
possession of a controlled substance with intent to distribute in violation of 21
U.S.C. § 841(a)(1) and one count of possession of a firearm in furtherance of a
drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). He focuses his
appeal on the sufficiency of the evidence presented by the government to support
his conviction on each of the five counts. He also challenges his sentence with an
argument since foreclosed by Supreme Court precedent. Exercising jurisdiction
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
pursuant to 28 U.S.C. § 1291, we hold that the evidence was sufficient for a
reasonable jury to find Khondaker guilty beyond a reasonable doubt on all counts
and therefore AFFIRM.
I
A
Officers from the Tulsa Police Department (“TPD”) first began to suspect
criminal activity at the Seven Days Food Corner convenience store when a
confidential informant (“CI”) indicated to TPD Officer Mike Helton that crack
cocaine was available for purchase at the store. According to the CI, the drugs
could be purchased from either a father or a son who were employed there. Based
on this tip, Helton organized a “controlled buy” in which he planned to send the
CI to purchase narcotics at the store under the supervision of the Special
Investigations Division (“SID”) of TPD. Thereafter, in late July 2005, the CI
successfully executed the plan, carrying out the first of two controlled buys.
According to the CI, “a younger Middle-Eastern male,” someone other than
Khondaker, 1 was working behind the store counter, and agreed to sell a small
amount of crack cocaine. To compile additional evidentiary support for a
potential search warrant, TPD later sent the same CI to attempt another controlled
buy. The results of the second purchase were identical to the first—the CI
purchased more crack cocaine from the same “younger Middle-Eastern male.”
1
Khondaker is in his late fifties and is of Bangladeshi descent.
-2-
On July 29, 2005, Helton obtained a search warrant for the store from a
state court. Helton’s partner, Officer Nicholas DeBruin, organized a SID team to
execute the warrant on Thursday, August 4, 2005. The officers’ operation began
at approximately 2:00 p.m. that day, when the SID team began to monitor the
store. From the vantage point of an unmarked car, they first noticed that
Khondaker, rather than a “younger Middle-Eastern male,” was the sole employee
working behind the store counter that day.
Notwithstanding their awareness that the clerk working at the store was not
the same individual who had previously sold drugs to the CI, the officers
continued to monitor the store. The team intended to observe all of the customer
traffic entering and exiting the store that afternoon to determine whether any
customers purchased a controlled substance while inside. They were unable,
however, to position themselves for a direct view into the store, and thus did not
observe any illegal transactions take place. Nevertheless, they noted that of the
six to eight customers entering the store that afternoon, none exited the building
with shopping bags or any obvious purchases. 2 In the officers’ judgment, these
customers likely left the store without any merchandise because they had
purchased only drugs.
2
Two other officers who monitored the store on previous dates also
observed customer traffic entering and exiting the store, and each testified that
they saw no purchases made from the store’s regular inventory.
-3-
After approximately five hours of monitoring the store, the officers
prepared to execute the search warrant. 3 Around 7:30 p.m., Sergeant Sam
McCullough, a plainclothes officer, entered the store to secure it for the
impending raid. While inside, McCullough observed a man enter the store and
walk up to the counter where Khondaker was standing, apparently to make a
purchase. Khondaker asked the man what he needed and the man responded with
an answer inaudible to McCullough. Then, just as Khondaker was reaching under
the counter, the remainder of the SID team pulled into the parking lot. Observing
this arrival, Khondaker immediately said to the customer, “Uh-oh, it’s Five-O,” 4
to which the customer responded, “Hold that thought; I’ll be back later.” The
customer then promptly left the store before the police entered.
3
The surveillance team was not at the store continuously during the
afternoon. DeBruin testified that each time the team observed what they thought
might be a suspicious purchase, they followed the purchaser’s vehicle. This
practice caused significant time gaps in their surveillance of the store. According
to DeBruin, the team planned to follow each customer until they could have a
marked patrol car pull that individual over for a traffic violation that would
support a search for drugs. Of the six to eight people the officers followed, none
committed any traffic infractions, and the officers were therefore unable to
determine whether any of them had purchased drugs from Khondaker.
4
According to McCullough, “Five-O” is a commonly used slang phrase in
north Tulsa that means “police.” The slang term was likely initially popularized
by the 1970’s hit television series “Hawaii Five-O” in which Jack Lord portrayed
the head of an elite state police unit responsible for investigating suspected
international secret agents, organized crime, and assassins. However, the term
may also have originated with the popular use of police interceptor vehicles
having 5.0 liter engines.
-4-
Upon exiting their vehicles, the officers knocked on the store’s glass door
and announced that they had a warrant. They then entered the store with their
weapons drawn and sought to detain the building’s two occupants: Khondaker
and a deliveryman for a local distributor of convenience store merchandise.
DeBruin immediately told Khondaker to put his hands up. Although Khondaker,
who primarily speaks Bengali, appeared to understand the command, he did not
immediately comply with it. He instead hesitated and raised his hands repeatedly
up and down between the level of the counter, approximately at his waist, and his
chest. In response, Officer First, among the first officers inside the store, climbed
behind the counter to where Khondaker was standing and handcuffed him. First
then escorted Khondaker from behind the counter—a space of less than two and
one-half feet wide—and discovered two handguns in plain view under the
counter, directly in front of where Khondaker had been standing. First seized the
firearms, a .38 caliber revolver and a .38 caliber semiautomatic pistol. He noted
that the guns were both loaded and ready to fire. 5 Near the guns, First also
discovered a box of .38 caliber bullets, a bullet carrier, and an extra magazine of
ammunition for the semiautomatic weapon.
5
First testified that the semiautomatic weapon was not only loaded, but
also “chamber loaded.” He explained to the jury that a semiautomatic weapon is
chamber loaded when “there is a bullet in the chamber ready to be fired as soon
as the trigger is pulled,” rather than merely a round in the weapon’s magazine.
-5-
Once the officers secured the interior of the store, they began a search of
the premises. According to the CI, drugs were located behind the counter near the
register, and so the officers focused on that area first. There, they found a
substantial amount of controlled substances within easy reach of the spot where
Khondaker stood, including: (1) 44.38 grams of cocaine base (commonly known
as “crack cocaine”), (2) 16.46 grams of cocaine powder, (3) 7.24 grams of
methamphetamine, (4) 1.07 grams of marijuana, and (5) 77 tablets of MDMA
(commonly known as “Ecstasy”). 6 All of the drugs were hidden either below the
counter or next to the cash register in an assortment of cigar and cigarette boxes,
and most of the drugs were packaged in small quantities. Near the drugs and also
under the counter, the officers uncovered $2,359 in cash denominated in small
bills, a loaded 12-gauge shotgun, 7 a bulletproof vest, binoculars, and drug
paraphernalia. That paraphernalia, some of which was on open display, included
6
Officers also found 2,124 tablets of pseudoephedrine in the area behind
where Khondaker was standing. DeBruin testified that, based on his expertise, he
believed that these tablets were intended to be sold for use in the manufacture of
methamphetamine. Khondaker, however, was not charged in relation to the
pseudoephedrine discovered at the store.
7
DeBruin testified that the handle of the shotgun protruded from under the
counter and that it was located approximately four feet from where Khondaker
had been standing when the officers arrived at the store.
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small plastic bags, glass pipes, 8 scouring pads, 9 rolling papers, single- and double-
edged razor blades, digital scales, and a large quantity of baking soda. 10 In
searching the remainder of the premises, officers also noted some unusual
features of the store’s interior. They observed a large quantity of out-dated
merchandise on the shelves, a thick layer of dust on items in the store’s inventory,
and a number of inventory boxes faded by the sun. According to one officer, only
the beer, candy bars, and ice cream had recently been restocked.
While other officers proceeded with the search, Officer David Wamsley
advised Khondaker of his Miranda rights and placed him under arrest. According
to Wamsley, Khondaker appeared to understand his rights as well as what the
officers were saying to him. Wamsley then questioned Khondaker about his
knowledge of the items found in the store, including the guns and drugs.
Khondaker admitted knowing where the two handguns and pseudoephedrine were
located, but said he was unaware of any illegal drugs in the store.
B
8
McCullough testified that the glass pipes recovered from the scene are
commonly used to inhale crack cocaine.
9
According to McCullough, drug users utilize scouring pads as filters to
hold crack cocaine in place while it is being consumed in the end of glass pipes.
10
Baking soda, or sodium bicarbonate, is a principal ingredient used in the
process of converting powdered cocaine into crack cocaine. See Kimbrough v.
United States, 128 S. Ct. 558, 556 (2007) (citations omitted). Both the baking
soda and the boxes of small plastic bags were located in areas not accessible to
customers.
-7-
On September 8, 2005, a federal grand jury returned a five-count
indictment against Khondaker, alleging that he knowingly possessed, with the
intent to distribute, crack cocaine, cocaine, MDMA, and methamphetamine in
violation of 21 U.S.C. § 841(a)(1), and that he knowingly possessed three
firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A). 11 Khondaker pleaded not guilty to the indictment and his case
proceeded to trial in late November 2005.
During a three-day jury trial, the government introduced the testimony of
several officers present at the store when the search warrant was executed. 12 The
government also called Corporal Harold Wells, a TPD narcotics expert present
during the search, to the stand. Wells testified that an individual possessing the
amount of drugs recovered at the Seven Days Food Corner would not have left the
drugs in the custody of an individual who was not involved in the distribution
ring. Such an individual, according to Wells, would attempt to maintain tight
control over the drugs in his possession, particularly given their high monetary
value and their significance to that individual’s income.
For his part, Khondaker called two witnesses in his defense: Muhammad
Sohail, the deliveryman present at the store when the search warrant was
11
No other store employees, including the “younger Middle-Eastern male”
who had previously sold crack cocaine to the CI, were indicted in connection with
the raid.
12
Officers DeBruin, First, Wamsley, and McCullough testified.
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executed, and Rasel Khondaker (“Rasel”), Khondaker’s son. Sohail told the jury
that he was at the convenience store on the evening of August 4, 2005, to deliver
a limited amount of merchandise. As a part of the delivery, he gave Khondaker
an invoice for which he expected immediate payment.
Rasel took the witness stand next. He explained that there was a large
amount of cash at the store that evening because the Khondaker family usually
paid cash for merchandise deliveries. He stated that approximately $400 to $500
of the $2,359 recovered from under the counter was on hand to pay for Sohail’s
delivery, and that an additional $1,500 was to pay for another merchandise
delivery expected either that evening or the following day. Rasel also testified
that his brother Sohel Khondaker (“Sohel”), Khondaker’s other son and the
primary owner of the store, was originally scheduled to replace Khondaker as the
store clerk at 7:00 p.m. on August 4, but that he did not arrive before the police
executed the warrant. On cross-examination and after admitting knowledge of the
two handguns recovered from the store, Rasel then explained that the store had
been robbed at gunpoint the year before Khondaker was arrested.
At the close of the government’s case in chief and again at the close of all
the evidence, Khondaker moved for a judgment of acquittal on the four counts of
possession with intent to distribute. See Fed. R. Crim. P. 29. He argued that, as a
matter of law, there was insufficient evidence for a jury to find that he had the
intent to distribute the drugs recovered at the store. Finding “substantial evidence
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from which a reasonable jury could infer that [Khondaker] possessed with the
intent to distribute the narcotics” identified in the indictment, the district court
denied his motions.
Khondaker’s defense to the jury was based largely on the argument that he
was the wrong person for the government to put on trial for these particular drugs.
As a mere employee of the store, he was simply in the wrong place at the wrong
time. Had he not been at the convenience store when the officers executed the
search warrant, he never would have been arrested and charged. Moreover,
according to Khondaker, the government never put forth any direct evidence that
he was involved in any specific drug sales. Neither the CI, nor any of the officers
who testified, ever observed Khondaker take part in a drug transaction.
Unpersuaded by these arguments, the jury found Khondaker guilty on all
five counts, and the district court later sentenced Khondaker to 97 months’
imprisonment on the four drug counts and 60 months’ imprisonment on the
firearms count, with the sentences to run consecutively. Khondaker now timely
appeals both his jury conviction and his resulting sentence.
II
Khondaker primarily contends on appeal that the evidence adduced at trial
was insufficient to convict him of any of the five counts charged. “We review
sufficiency of the evidence claims de novo, asking only whether, taking the
evidence—both direct and circumstantial, together with the reasonable inferences
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to be drawn therefrom—in the light most favorable to the government, a
reasonable jury could find [defendant] guilty beyond a reasonable doubt.” 13
United States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000) (quotations omitted).
In reviewing the evidence in this light, we do not inquire into the jury’s
credibility determinations or its conclusions regarding the weight of the evidence.
Id. Moreover, the evidence presented “need not conclusively exclude every other
reasonable hypothesis and need not negate all possibilities except guilt.” United
States v. Bowen, 437 F.3d 1009, 1014 (10th Cir. 2006) (quotations omitted). It
need only reasonably support the jury’s finding that the defendant is guilty of the
crimes charged beyond a reasonable doubt. Id.A
We begin by reviewing the evidence adduced in support of the four counts
of possession of a controlled substance with intent to distribute. On this score,
the government bore the burden of proving that Khondaker: “(1) possessed the
controlled substance; (2) knew he possessed the controlled substance; and (3)
13
Although Khondaker did not move for a judgment of acquittal with
respect to the firearms count of the indictment, his failure does not in practice
affect our standard of review with respect to the sufficiency of the evidence on
that count. When reviewing a claim of insufficient evidence that was not properly
raised at trial, we technically review the claim for plain error. United States v.
Cox, 929 F.2d 1511, 1514 (10th Cir. 1991). Nevertheless, because “a conviction
in the absence of sufficient evidence of guilt is plainly an error, clearly prejudiced
the defendant, and almost always creates manifest injustice,” United States v.
Goode, 483 F.3d 676, 681 n.1 (10th Cir. 2007), the two standards are functionally
equivalent, Cox, 929 F.2d at 1514.
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intended to distribute or dispense the controlled substance.” United States v.
McKissick, 204 F.3d 1282, 1291 (10th Cir. 2000); see 21 U.S.C. § 841(a)(1).
According to Khondaker, the evidence adduced at trial was insufficient to support
any of the three elements. We cannot agree. Although the jurors were required to
draw several inferences from the evidence presented, the evidence was
sufficient—when considered in combination—for a reasonable jury to find
Khondaker guilty beyond a reasonable doubt on each of the four drug counts.
1
As to the possession element, Khondaker contends that the government
failed to prove that he had either actual or constructive possession of the drugs
recovered. Specifically, he argues that because other employees worked at the
convenience store, the jury could not reasonably infer that he, rather than another
employee, possessed the drugs.
Possession of a controlled substance may be either actual or constructive.
United States v. Reece, 86 F.3d 994, 996 (10th Cir. 1996). Actual possession of
an item exists when a person has direct physical control over that item. United
States v. Jameson, 478 F.3d 1204, 1209 (10th Cir. 2007). Constructive possession
exists when a person “knowingly holds the power and ability to exercise
dominion and control over it.” United States v. Lopez, 372 F.3d 1207, 1211 (10th
Cir. 2004) (citations omitted). Dominion, control, and knowledge may all
generally be inferred when the defendant has exclusive possession of the premises
-12-
where the item is located. Bowen, 437 F.3d at 1014 (citation omitted). When
contraband may be attributed to more than one person, however, as in a case of
joint occupancy of a premises, the government bears a higher burden of proof.
United States v. Michel, 446 F.3d 1122, 1128 (10th Cir. 2006). It must show
“some nexus, link, or other connection between the defendant and the
contraband.” Reece, 86 F.3d at 996. That nexus cannot be based on proximity
alone, and requires either direct or circumstantial evidence that the defendant had
knowledge of, and access to, the contraband. Jameson, 478 F.3d at 1209-10.
Although the government failed to present evidence that the drugs were in
Khondaker’s actual possession, it did present circumstantial evidence
cumulatively sufficient to show that Khondaker constructively possessed them.
The vast majority of the drugs discovered were located in extremely close
proximity to Khondaker’s post, either directly below the cash register or
concealed in cigarette boxes above the counter. Other testimony showed that
although Khondaker was not the only employee who worked at the store, he had
the ability to exercise control over the drugs as he was the sole employee serving
customers on the day he was arrested. In addition, Khondaker reached under the
counter, where the drugs were later located, immediately before the raid occurred.
This action tends to show Khondaker’s ability to access the drugs, provides an
inference of his knowledge of their presence, and proves his ability to exercise
control over them. From these facts, the jury could have inferred a link between
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Khondaker and the drugs seized sufficient to find that Khondaker had
constructive possession of them.
2
A jury could also have reasonably concluded that Khondaker knowingly
possessed the drugs. First, DeBruin testified that the CI initially told him that
drugs could be purchased from either a father or son employed at the store, and
the jury could have reasonably inferred that the CI’s description of a “father” was
actually a reference to Khondaker. Further, as an employee that worked at the
store regularly, including on the day of his arrest, Khondaker had a substantial
amount of time to be exposed to the items under the counter. As Officer First
noted, the area behind the counter was extremely small, such that only one
individual could reasonably fit there. Khondaker was thus often alone behind the
counter near where the drugs were eventually discovered, and the jury could have
reasonably inferred that he was aware and had knowledge of the items that were
later recovered.
Next, McCullough testified that he saw Khondaker reaching under the
counter in the moments before the uniformed SID team entered the store.
Khondaker was also extremely reluctant to put his hands up and instead
repeatedly appeared to put his hands below the counter level when officers first
sought to detain him. Both of these actions give rise to an inference that
Khondaker knew about the contraband below the counter. Finally, the jury also
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heard Wells testify that a drug dealer would normally not entrust a substantial
amount of drugs to someone not involved in the distribution ring. Coupled with
the circumstantial testimony presented by the other officers, this testimony
provided the jury with a sufficient basis upon which it could conclude that
Khondaker knowingly possessed the drugs recovered from the store.
3
As for the intent to distribute element, Khondaker asserts that the
government failed to introduce direct evidence that he was involved in any
specific drugs sales. He points to the following gaps in the government’s direct
proof of his intent to distribute: (1) The CI made the controlled purchases from a
store employee other than Khondaker; (2) No eyewitnesses testified that
Khondaker sold them drugs; and (3) No officers testified that they observed
Khondaker make any specific drug sales. Although our review of the record
reveals that Khondaker is correct in his characterization of the government’s lack
of direct evidence, we cannot agree that these gaps have any effect on
Khondaker’s conviction. It is not the evidence that the government failed to
introduce that governs our inquiry; rather, it is the evidence that was introduced,
direct or circumstantial, that we must consider. Reviewing that evidence on the
record before us, as well as the reasonable inferences derived therefrom, we
conclude that a reasonable jury could have found that Khondaker intended to
distribute the drugs recovered at the convenience store.
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In Allen, we recognized four factors that will often support a conclusion
that a defendant possessing drugs does so with the intent to distribute them: “(1)
the amount of the drugs; (2) the way they are packaged; (3) the presence of cash;
and (4) the presence of firearms.” 235 F.3d at 492. We have also noted a fifth
relevant factor: The presence of drug paraphernalia in close proximity to drugs.
See, e.g., United States v. Verners, 53 F.3d 291, 294 (10th Cir. 1995). In this
case, the government put forth evidence as to each of these five factors.
First, officers found a large quantity of drugs at the Seven Days Food
Corner. They discovered 44.38 grams of cocaine base, 16.46 grams of cocaine
powder, 7.24 grams of methamphetamine, and 77 tablets of MDMA. These
quantities, coupled with the variety of controlled substances recovered, gave the
jury a substantial basis for concluding that the drugs were for retail distribution,
rather than personal use. See United States v. Pulido-Jacobo, 377 F.3d 1124,
1131 (10th Cir. 2004) (“[A] jury may infer intent to distribute from the possession
of large quantities of drugs.”); see also United States v. McIntyre, 997 F.2d 687,
708 (10th Cir. 1993).
Second, Wells testified that many of the drugs found under the counter or
on top of it were packaged for resale. He stated that some of the crack-cocaine
rocks and MDMA tablets recovered were individually packaged inside small
plastic bags located in cigarette boxes, and that the amount found inside each bag
was consistent with a quantity that would normally be sold to an individual
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customer. He also testified as to the presence of additional plastic bags, each of
approximately two square inches, that are frequently used by drug dealers for
packaging or repackaging drugs for distribution.
Third, over $2,300 in cash was stored inside a cigar box underneath the
cash register and near the vast majority of the drugs recovered. See Verners, 53
F.3d at 294 (reasoning that the presence of “large amounts of cash” in close
proximity to drugs, drug paraphernalia, and firearms provides an inference of
intent to distribute). That currency was mostly in small bills, including ones,
fives, tens, and twenties; denominations that give rise to an inference that the
currency represented proceeds from the retail sale of drugs. 14 See, e.g., United
States v. Lauder, 409 F.3d 1254, 1260 (10th Cir. 2005).
Finally, all of the drugs were discovered within several feet of three
firearms and a substantial amount of drug paraphernalia frequently used in the
manufacture, distribution, and consumption of drugs. These “tools of the drug
trade,” most of which were located behind the counter where Khondaker was
working, included rolling papers, razor blades, digital scales, glass pipes,
scouring pads, baking soda, a large quantity of small bags, and pseudoephedrine.
United States v. Triana, 477 F.3d 1189, 1195 (10th Cir. 2007) (concluding that a
14
Although Rasel Khondaker testified that the cash was on hand to pay
distributors for expected deliveries of merchandise, the jury was entitled to find
his testimony not credible or otherwise accord it little weight in reaching its
verdict. See Allen, 235 F.3d at 492.
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jury could infer an intent to distribute drugs from the presence of “scales, glass
pipes, and ziploc baggies”).
In addition to presenting evidence on each of these five factors, the
government also introduced several other kernels of circumstantial evidence
furthering its showing of an intent to distribute. For example, DeBruin testified
that he observed six to eight individuals walk into the store during the hours
immediately preceding the execution of the search warrant, and that none carried
any normal convenience store purchases when they left the store. Relatedly,
several officers also testified that many of the items on the store shelves appeared
to be outdated and were covered in dust, and that several boxes of merchandise
appeared to be faded from the sun. The jury reasonably could have inferred from
this testimony that the convenience store was in the business of selling drugs to
the exclusion of conventional merchandise. Furthermore, McCullough, who was
in the store immediately prior to execution of the search warrant, testified that he
observed a customer come to the counter, presumably to make a purchase. He
noted that Khondaker began reaching under the counter and that the observed
transaction only ceased when the SID team arrived. The jury could have inferred
from this testimony that Khondaker was reaching for the drugs that police later
found directly under the counter to sell some to the customer. Although
individually insufficient to prove this element, each of these additional pieces of
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evidence strengthened the government’s assertion that Khondaker intended to
distribute the drugs at issue.
In sum, we conclude that, when assembled together, the pieces of evidence
presented were sufficient to form a picture from which the jury could have
reasonably concluded that Khondaker possessed the drugs at issue, that he did so
knowingly, and that he had the intent to distribute them.
B
As to the final count of conviction, Khondaker asserts that the evidence
presented at trial was insufficient to support either the “in furtherance” element of
18 U.S.C. § 924(c), or the underlying drug trafficking crime required for
conviction. As explained above, we have already concluded that the evidence
adduced at trial was sufficient to convict Khondaker under the first four counts of
the indictment. Consequently, we need only inquire whether the evidence was
sufficient to satisfy the “in furtherance” element of the § 924(c)(1) violation for
which he was convicted.
To establish that a firearm has been used in furtherance of a drug
trafficking crime, the government must prove some nexus between the possession
of the firearm and the drug trafficking activity. United States v. Avery, 295 F.3d
1158, 1179-80 (10th Cir. 2002). That nexus can be shown if the government
introduces evidence that the firearm “furthered, promoted or advanced” the
underlying drug crime. United States v. Robinson, 435 F.3d 1244, 1251 (10th
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Cir. 2006) (quoting United States v. Iiland, 254 F.3d 1264, 1274 (10th Cir.
2001)). This burden can be met by introducing evidence that the defendant
intended to keep the firearm available for use during a drug transaction. United
States v. Basham, 268 F.3d 1199, 1208 (10th Cir. 2001). “Such intent would
necessarily be subject to proof by circumstantial evidence . . . .” Id. Several
factors may facilitate circumstantial proof of this intent, including: “(1) the type
of drug activity being conducted, (2) the accessibility of the firearm, (3) the type
of firearm, (4) the legal status of the firearm, (5) whether the firearm is loaded,
(6) the proximity of the firearm to drugs or drug profits, and (7) the time and
circumstances under which the firearm is found.” Robinson, 435 F.3d at 1251(citation omitted).
In the case before us, each of the seven factors, save the fourth, 15 tends to
show that the firearms in the store were kept available for use during a drug
transaction. The evidence presented showed the existence of an apparently large
scale drug operation. Officers uncovered at least four distinct types of controlled
substances, packaged for retail sale, as well as paraphernalia consistent with both
the manufacture and distribution of the drugs recovered. All three of the firearms
seized were located within four feet of where Khondaker was standing when he
was apprehended and in close proximity to the drugs; the two handguns were
15
The record is silent on the legal status of the three firearms recovered
during the raid.
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found lying in the open directly below the cash register at roughly waist level,
and the shotgun was found underneath a nearby counter. The shotgun handle was
protruding out from under the counter and was pointed directly towards
Khondaker so that he, or another store employee, could easily access it. Each of
the firearms was also loaded with ammunition, and the .38 semiautomatic
handgun was chamber loaded, meaning that it was ready to be fired immediately.
Moreover, all three of the firearms were found in close proximity to the drugs and
to the $2,359 in cash that officers recovered. Taken together, these facts provide
sufficient circumstantial evidence to prove that Khondaker intended to have the
firearms available for use during potential drug transactions, and that they were
thus possessed in furtherance of a drug trafficking crime. 16 See, e.g., United
States v. Brooks, 438 F.3d 1231, 1238 (10th Cir. 2006) (upholding a § 924(c)(1)
conviction where a “loaded revolver was found within ten feet of the recovered
evidence of an active methamphetamine laboratory”); Robinson, 435 F.3d at 1251(affirming a § 924(c)(1) conviction where “the firearm was a fully loaded and
16
Khondaker contends that he, together with the other employees of the
store, possessed these firearms as a means of protection from the threat of
robbery. He points to Rasel’s testimony that a robbery occurred at the Seven
Days Food Corner the year prior to Khondaker’s arrest. He also notes that the
guns behind the counter were there to abate the threat of any future robberies, and
that the store was located in a high-crime area. Plausible as these arguments may
be, we are obliged to view the evidence in the light most favorable to the
government. See Allen, 235 F.3d at 492. Seeing the evidence in that light, we
conclude, as discussed above, that the totality of the evidence presented is
sufficient for a reasonable jury to find that Khondaker possessed the weapons at
issue in furtherance of drug-trafficking activities.
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chambered high-powered rifle easily within reach” and was located “in close
proximity to drug paraphernalia”); United States v. Lott, 310 F.3d 1231, 1247
(10th Cir. 2002) (“[T]he placement of a loaded, semi-automatic weapon on the
driver’s seat of a car in which the instrumentalities of methamphetamine
manufacturing were also found is sufficient evidence from which a jury could
conclude that the purpose of the gun was to provide defense or deterrence in
furtherance of attempting to manufacture methamphetamine.”); Avery, 295 F.3d
at 1180 (upholding a § 924(c)(1) conviction where “five weapons were found in a
home from which [the defendant] admitted that he had sold cocaine” in close
proximity to cash and cocaine).
III
Finally, Khondaker raises a Sixth Amendment challenge to our circuit’s use
of an appellate presumption of reasonableness for those sentences falling within a
properly calculated United States Sentencing Guidelines range. See United States
v. Kristl, 437 F.3d 1050 (10th Cir. 2006). He does not, however, raise any
specific objection to the reasonableness of his within-Guidelines sentence.
In Rita v. United States, 127 S. Ct. 2456, 2463-68 (2007), decided
subsequent to briefing in this case, the Supreme Court explicitly sanctioned our
circuit’s adoption of an appellate presumption of reasonableness for sentences
falling within a correctly calculated Guidelines range. That decision, when read
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together with our opinion in Kristl, necessarily forecloses Khondaker’s sentencing
argument.
IV
Because we hold that there was sufficient evidence for a reasonable jury to
find Khondaker guilty beyond a reasonable doubt on all five counts, we AFFIRM
the judgment of the district court.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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