United States v. James Franklin Perry, Sr. , 345 F. App'x 494 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 21, 2009
No. 09-11172 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00373-CR-4-IPJ-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES FRANKLIN PERRY, SR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(September 21, 2009)
Before TJOFLAT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
James Franklin Perry, Sr. appeals his conviction and sentence after a jury
found him guilty of being a felon in possession of a firearm. On appeal, he raises
the following two arguments: (1) the district court erred under Fed.R.Evid. 404(b)
by allowing the government to elicit testimony that narcotics were found in his
residence; and (2) the district court erred by applying a four-level enhancement
under U.S.S.G. § 2K2.1(b)(6) because there was no showing that his firearms
facilitated, or had the potential to facilitate, his possession of methamphetamine.
For the reasons set forth below, we affirm Perry’s conviction and sentence.
I.
A federal grand jury returned an indictment against Perry, charging him with
being a felon in possession of eight specific firearms, in violation of 18 U.S.C.
§ 922(g)(1). The indictment also alleged that Perry had been convicted in January
2007 in Alabama for the unlawful possession of marijuana and the unlawful
possession of a controlled substance.
Before trial, Perry filed a motion in limine, requesting the district court to
instruct the government not to comment on, or present evidence about, any illegal
drugs found in Perry’s residence, where the firearms were discovered. Perry
argued that any reference to drugs would constitute “evidence of criminal acts that
are not related to [his] possession of the weapons” and would therefore be unduly
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prejudicial. Perry also offered to stipulate that he was previously convicted of the
felonies referred to in the indictment. In response, the government agreed to the
stipulation, but argued that, although it did not anticipate doing so, it could refer to
drugs found at Perry’s residence during trial, as this evidence was “intrinsic” to the
charged offense and therefore fell outside the scope of Fed.R.Evid. 404(b). The
district court accepted the stipulation and denied Perry’s motion in limine.
At trial, the government called Officer Gary Ward with the St. Clair County
Sheriff’s Office (“SCCSO”), who testified that, on September 6, 2007, he led a
team of approximately 10 to 15 officers in executing a search warrant at Perry’s
residence. Upon conducting the search, Ward and the officers found several guns
in the guest bedroom, office, and master bedroom. Ward stated that he and the
officers also found a large Safari safe in the office, in which they later discovered
ammunition and numerous firearms, eight of which were the firearms referenced in
the indictment.
During the government’s case in chief, the government twice elicited
testimony regarding narcotics found in Perry’s residence. First, the government
asked Ward what was found in the safe, and Ward responded: “Handguns, long
guns, illegal narcotics.” Second, the government posed the same question to Joe
Sweatt, chief investigator and evidence custodian for the CCSCO, who testified
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that they found ammunition, “a host of guns and some other drugs, paraphernalia,
and some personal items . . . .”
Defense counsel called Perry, who admitted that the firearms found in the
safe belonged to him. However, he denied having access to the safe and testified
that only two of his guns, neither of which were operational, were not locked in the
safe. He also testified that, following the execution of the warrant in September
2007, he pled guilty in state court to both possession and distribution of
methamphetamine, and, with respect to the possession offense, he admitted that
there was some methamphetamine found in his house. After the district court
instructed the jury – including that Perry was “not on trial for any other act or any
other conduct or any other offense that is not alleged in the indictment” – the jury
returned a guilty verdict.
The probation officer prepared a pre-sentence investigation report (“PSI”).
In setting out Perry’s offense conduct, the probation officer first noted that an
unspecified amount of methamphetamine was found in the master bedroom and in
other unspecified areas of the house. In calculating Perry’s applicable guideline
range, the probation officer gave Perry a base offense level of 14, pursuant to
U.S.S.G. § 2K2.1(a)(6)(A), applied a 6-level enhancement based on the number of
firearms, pursuant to § 2K2.1(b)(1)(C), and applied a 2-level enhancement based
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on the fact that two of the firearms were reported stolen, pursuant to
§ 2K2.1(b)(4)(A). The probation officer also applied a four-level enhancement
under § 2K2.1(b)(6) because Perry possessed the firearms in connection with
another felony offense, namely, possession of methamphetamine. In discussing
Perry’s criminal history, the probation officer noted that Perry pled guilty to both
distribution and possession of methamphetamine. It was noted that the
distribution offense occurred on August 1, 2007, while the possession offense
occurred on September 6, 2007, the date of the search that uncovered the firearms.
Perry’s offense level of 26, combined with his criminal history category of IV,
produced an applicable guideline range of 92 to 115 months’ imprisonment.
Perry objected to the four-level enhancement under § 2K2.1(b)(6), arguing
that “there was not sufficient evidence shown at the time of trial that [he] possessed
drugs in connection with the firearms for which he was charged and convicted.”
The court overruled the objection, stating: “I’m going to overrule based on the
evidence I heard in open court regarding where the guns were located, where the
ammunition was located, where the son’s guns were located, and where the drugs
were located.” The court thereafter adopted the factual statements and guideline
calculations in the PSI and, although it sentenced Perry to the low end of the
guideline range, the court credited him with time served for an unrelated offense,
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thus resulting in a total sentence of 74 months and 16 days’ imprisonment. This
appeal followed.
II.
“We review evidentiary rulings for abuse of discretion.” United States v.
Gunn, 369 F.3d 1229, 1236 (11th Cir. 2004). However, and despite filing a motion
in limine to exclude evidence at trial relating to narcotics, Perry did not object on
this ground at trial, and, therefore, we review the Rule 404(b) issue for plain error.
United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003); see United States
v. Khoury, 901 F.2d 948, 966 (11th Cir. 1990) (“A defendant must object at trial to
preserve an objection on appeal; the overruling of a motion in limine does not
suffice.”). Under this standard, Perry must show that: “(1) an error occurred; (2)
the error was plain; (3) it affected his substantial rights; and (4) it seriously
affected the fairness of the judicial proceedings.” United States v. Gresham, 325
F.3d 1262, 1265 (11th Cir. 2003).
Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, knowledge, identity, or absence of mistake
or accident . . . .” Fed.R.Evid. 404(b). Thus, to be admissible under Rule 404(b),
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extrinsic evidence of other crimes or acts must “(1) be relevant to one of the
enumerated issues and not to the defendant’s character; (2) the prior act must be
proved sufficiently to permit a jury determination that the defendant committed the
act; and (3) . . . the evidence must satisfy Rule 403.” United States v. Chavez, 204
F.3d 1305, 1317 (11th Cir. 2000).
In this case, Perry challenges the government’s elicitation of testimony about
narcotics found in his residence. In response to questions about what was found in
Perry’s safe, both Officer Ward and Investigator Sweatt briefly mentioned that they
found narcotics there. This testimony, however, was not “extrinsic” evidence
subject to Rule 404(b) because, since the firearms listed in the indictment were also
found in the safe, this testimony was “inextricably intertwined with the evidence
regarding the charged offense” and was “necessary to complete the story of the
crime of trial.” United States v. Weeks, 716 F.2d 830, 832 (11th Cir. 1983); see
United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (“[E]vidence is
inextricably intertwined with the evidence regarding the charged offense if it forms
an integral and natural part of the witness’s accounts of the circumstances
surrounding the offenses for which the defendant was indicted.”) (quotation
omitted). Thus, Perry has not shown that the district court plainly erred in
allowing this testimony.
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In any event, this testimony did not substantially influence the jury’s verdict.
Gunn, 369 F.3d at 1236. This is so because the government elicited only two
isolated and in-passing references to narcotics found in Perry’s safe. Moreover,
and even if this limited testimony had some impact on the jury, it was rendered
harmless by Perry’s own admission that methamphetamine was found in his
residence and that he pled guilty to possession and distribution of
methamphetamine. Finally, the district court instructed the jury that Perry was
“not on trial for any other act or any other conduct or any other offense that is not
alleged in the indictment.” See Edouard, 485 F.3d at 1345 (“[A]ny unfair
prejudice possibly caused by admitting evidence . . . was mitigated by the district
court’s limiting instruction to the jury.”); Gunn, 369 F.3d at 1236 (holding that any
error in admitting extrinsic evidence was harmless in part because the court issued
a limiting instruction). Thus, even if it was error to allow this testimony, it did not
affect Perry’s substantial rights. Accordingly, we affirm Perry’s conviction.
III.
“This [C]ourt reviews the district court’s application and interpretation of
the sentencing guidelines under the de novo standard of review, but reviews its
findings of fact for clear error.” United States v. Rhind, 289 F.3d 690, 693 (11th
Cir. 2002). Under U.S.S.G. § 2K2.1(b)(6), a defendant is subject to a four-level
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enhancement if he “used or possessed any firearm or ammunition in connection
with another felony offense . . . .” U.S.S.G. § 2K2.1(b)(6). Application Note 14 of
the commentary to § 2K2.1, added in 2006, clarifies that the enhancement applies
“if the firearm or ammunition facilitated, or had the potential of facilitating,
another felony offense . . . .” Id., comment. (n.14(A)). As a result, when that other
felony offense is a “drug trafficking offense,” the commentary instructs the court to
apply the enhancement when a firearm is found in “close proximity” to drugs. Id.,
comment. (n.14(B)).
In this case, the district court applied the enhancement because it found that
Perry possessed firearms in connection with another felony offense. The record
fully supports this conclusion. Perry testified and confirmed that he had pled
guilty to both possession and distribution of methamphetamine. He also admitted
that methamphetamine had been found in his house. It is a given fact that there is a
close relationship between guns and drugs. This is true whether or not the criminal
conduct is possession of illegal drugs or when the criminal conduct is both
possession and distribution of illegal drugs. There is no question that the guns
involved in this case were found in close proximity to the drugs. Thus, the four-
level enhancement imposed by the district court is in full accord with Application
Note 14(B) and we affirm the sentence.
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IV
For the reasons set forth above, we affirm Perry’s conviction and sentence.
AFFIRMED.
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