United States v. Angela Michele Poindexter , 176 F. App'x 957 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-16393 April 19, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-60139-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGELA MICHELE POINDEXTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 19, 2006)
Before BLACK, BARKETT and COX, Circuit Judges.
PER CURIAM:
Appellant Angela Michele Poindexter appeals her conviction and 96-month
sentence for possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). Poindexter argues the district court (1) erred by denying her motion
for judgment of acquittal; (2) erred by denying her motion to suppress evidence;
and (3) committed constitutional and statutory error under United States v. Booker,
125 S. Ct. 738 (2005). We affirm.
I. ANALYSIS
A. Denial of Poindexter’s Motion for Judgment of Acquittal
Poindexter argues the district court erred when it found the evidence was
sufficient to convict her under § 922(g)(1), and, therefore, denied her motion for
judgment of acquittal. “When evaluating a sufficiency-of-the-evidence claim, we
must view the evidence in the light most favorable to the government, drawing all
reasonable inferences in favor of the jury’s verdict.” United States v. Church, 955
F.2d 688, 693 (11th Cir. 1992).
A defendant violates § 922(g)(1) when (1) she was a convicted felon;
(2) she knowingly possessed a firearm or ammunition; and (3) such firearm or
ammunition was in or affected interstate commerce. United States v. Jernigan,
341 F.3d 1273, 1279 (11th Cir. 2003). Under the second prong of the § 922(g)(1)
analysis, the Government must show the defendant knowingly exercised either
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“actual” or “constructive” possession over a firearm or ammunition. See United
States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998). “To prove actual
possession the evidence must show that the defendant either had physical
possession of or personal dominion over the thing allegedly possessed.
Constructive possession exists when a defendant has ownership, dominion, or
control over an object itself or dominion or control over the premises or the
vehicle in which the object is concealed.” Id. at 909 (citations omitted).
Poindexter repeatedly asserts the Government based its case on her mere
proximity to the firearms, and she argues proximity alone cannot, as a matter of
law, give rise to a conviction under § 922(g)(1). This argument overlooks the
Government’s most damaging evidence: ATF Special Agent Patrick Kelly’s
testimony about Poindexter’s statements to him during the search of her home.
First, she admitted to Special Agent Kelly that she had possessed every firearm in
the home at one time or another. Second, she told Special Agent Kelly that she
and her husband were concerned about her safety at the self-storage unit where she
worked. Although they knew she could not legally possess a firearm, she asserted,
they nevertheless decided to place a handgun in the glove compartment of an
Isuzu Rodeo. Poindexter identified the Isuzu Rodeo as belonging to her and
produced the keys from her purse when requested to do so. Third, she also
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admitted handling the gun when she moved items in and out of the Isuzu Rodeo’s
glove compartment, and documents belonging to her were found resting beneath
the gun. The jury thus had sufficient evidence to find Poindexter knowingly
exercised physical possession of or personal dominion over one or more firearms
(i.e., actual possession) and/or knowingly exercised dominion or control over the
vehicle in which the handgun was concealed (i.e., constructive possession).
Accordingly, the district court did not err in denying her motion for judgment of
acquittal.
B. Denial of Motion to Suppress Evidence
Poindexter next contends the district court erred by denying her motion to
suppress evidence. “We review findings of fact on a motion to suppress evidence
for clear error; the district court’s application of the law to those facts is subject to
de novo review.” United States v. Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996).
All facts are construed in the light most favorable to the prevailing party. United
States v. Goddard, 312 F.3d 1360, 1362 (11th Cir. 2002).
Specifically, Poindexter argues the search warrant was not supported by
probable cause because the underlying affidavit (1) did not describe conduct that
was criminal in nature; (2) did not indicate Poindexter’s home contained evidence
of the alleged crime; (3) relied on stale information; and (4) did not establish the
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veracity of the individuals on whose information the search warrant relied. In our
Circuit, “probable cause exists if facts within the magistrate’s knowledge and of
which he had reasonably trustworthy information would warrant a man of
reasonable caution in the belief that a crime was committed and that evidence is at
the place to be searched. A magistrate’s decision that probable cause exists is
conclusive absent arbitrariness.” United States v. Betancourt, 734 F.2d 750, 754
(11th Cir. 1984) (quotations and citations omitted).
After carefully reviewing the record, we conclude the search warrant
affidavit sets forth ample facts—each of which is based on reasonably trustworthy
information—to warrant the magistrate judge’s finding of probable cause.
Poindexter’s arguments on this issue therefore must fail.1
C. Booker Error
Finally, Poindexter asserts the district court erred under Booker by applying
the Sentencing Guidelines as mandatory and enhancing Poindexter’s offense level
based upon facts that were not submitted to the jury. As the Government
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Poindexter also argues the district court abused its discretion when it denied her motion
for an evidentiary hearing pursuant to Franks v. Delaware, 98 S. Ct. 2674 (1978). See United
States v. Gay, 251 F.3d 950, 951 (11th Cir. 2001) (stating our circuit reviews the denial of an
evidentiary hearing for abuse of discretion). After carefully reviewing the record, we determine
the district court did not abuse its discretion when it denied Poindexter’s Franks evidentiary
hearing; thus, Poindexter’s contentions on this issue lack merit.
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concedes, the district court committed constitutional and statutory error under
Booker. (Red Brief at 45). A district court’s error under Booker is harmless
beyond a reasonable doubt, however, where the district court stated it would
impose the same sentence in an advisory Guidelines system. See United States v.
Robles, 408 F.3d 1324, 1327 (11th Cir. 2005). At sentencing in this case, the
district court made such a statement: “If the United States Supreme Court decides
that the federal Sentencing Guidelines are unconstitutional . . . I want the minutes
to note . . . that it is the court’s intention to impose the exact same sentence under
the statute as I have imposed here today.” Thus, our precedent squarely precludes
Poindexter’s arguments on this issue.
II. CONCLUSION
For the foregoing reasons, we affirm Poindexter’s conviction and 96-month
sentence for possessing a firearm as a convicted felon, in violation of § 922(g)(1).
AFFIRMED.
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