United States v. Dwight Herschel Green ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12451 DECEMBER 9, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 4:09-cr-00034-RLV-WEJ-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
DWIGHT HERSCHEL GREEN,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 9, 2011)
Before WILSON, PRYOR, and KRAVITCH, Circuit Judges.
PER CURIAM:
Dwight Herschel Green appeals his convictions for interstate travel and
attempted possession of a destructive device in furtherance of a crime of violence,
in violation of 18 U.S.C. § 924(g) (Count One), and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count Two).
He also appeals his 108-month sentence on the grounds that the district court
erroneously applied a four-level sentencing enhancement pursuant to U.S.S.G.
§ 2K2.1(b)(6) for possession of a firearm in connection with another felony
offense. After thorough review of the briefs and record, we affirm.
I.
On February 22, 2011, the government filed a third superseding indictment
charging Green with Count One and Count Two. Green pled not guilty to both
counts and was tried by a jury. At trial, the government presented evidence
consisting of the testimony of numerous law enforcement agents; the testimony of
a cooperating witness, Brian Moses; and video and audio tapes of meetings that
Moses had with Green. At the conclusion of the government’s case, Green moved
for judgment of acquittal on Count One, arguing that he had not attempted to
purchase grenades with the intent to commit a crime of violence. The district
court denied this motion.
The defense then presented its case. After offering the testimony of three
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witnesses, Green took the stand. At the close of all the evidence, Green did not
move for judgment of acquittal. After hearing closing arguments, the jury found
Green guilty on both counts.
At sentencing, Green received a four-level enhancement for possessing a
firearm in connection with another felony offense pursuant to U.S.S.G.
§ 2K2.1(b)(6). The felony offense alleged was possession of methamphetamine,
which officers testified they had found during a search of his home. This
enhancement resulted in a total offense level of 26, and Green’s guideline range
was calculated to be 63 to 78 months. The district court sentenced Green to 72
months of imprisonment for each of Count One and Count Two, with 36 of the
months of the Count Two sentence to run concurrently with Count One and the
remaining 36 months running consecutive to Count One. The result was a 108-
month total sentence. Green now appeals his convictions and the four-level
enhancement under § 2K2.1(b)(6).
II.
We typically review de novo whether sufficient evidence supported the
jury’s guilty verdict. See United States v. Klopf, 423 F.3d 1228, 1236 (11th Cir.
2005). However, if a defendant fails to renew a motion for judgment of acquittal
at the close of all the evidence, then we will reverse a conviction only to prevent a
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“manifest miscarriage of justice.” United States v. Edwards, 526 F.3d 747,
755–56 (11th Cir. 2008). This standard is met when “the evidence on a key
element of the offense is so tenuous that a conviction would be shocking.” United
States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir. 1998) (per curiam) (quotation
omitted).
A.
To establish a violation of 18 U.S.C. § 924(g), the government must prove
that the defendant, with intent to engage in conduct that constitutes a crime of
violence, traveled from one state into another and acquired, transferred, or
attempted to acquire or transfer a firearm1 in furtherance of the crime of violence.
18 U.S.C. § 924(g).
Green contends that the evidence does not establish that he intended to
engage in a crime of violence. At trial, the government offered the testimony of
Brian Moses, who met with Green on multiple occasions to discuss a murder-for-
hire scheme. Two of these meetings were recorded, and the government played
the audio for the jury during Moses’s testimony. Moses explained that in April
2009, he and Green discussed the scheme and identified seven potential victims.
Moses further testified that he and Green had discussed obtaining grenades for
1
The definition of firearm includes a grenade. 18 U.S.C. § 821(a)(3)(D), (a)(4)(A)(ii).
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Green to throw through the window of a home in order to kill five people. Moses
also testified that Green exchanged $200 for the grenades, and the government
produced pictures from an ATM camera to corroborate the withdrawal of this
money. Moses and Green arranged for delivery of the grenades at a location in
Alabama, and Green left his home and drove toward the arranged meeting spot
upon receiving a call from Moses on April 16, 2009.
Green testified in his own defense at trial and admitted that his voice was on
the recordings. He testified that he was intoxicated during the conversations and
never intended to obtain the grenades in order to kill the alleged targets of the
scheme. Green could not, however, identify any point in the recorded
conversation between himself and Moses where he said he did not want the
grenades.
The jury was entitled to credit Moses’s testimony and base its verdict on his
recollections. See Craig v. Singletary, 127 F.3d 1030, 1044–45 (11th Cir. 1997)
(en banc) (“[U]ncorroborated testimony of a co-conspirator or accomplice is
sufficient to prove guilt beyond a reasonable doubt.”). We find no “manifest
miscarriage of justice” is present here because the record evidence plainly
supports the jury’s verdict on Count One. Edwards, 526 F.3d at 755–56.
B.
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Green next argues that he was not in possession of any firearms and
therefore could not have been found guilty on Count Two. “To establish a
violation of 18 U.S.C. § 922(g)(1), the government must prove three elements: (1)
that the defendant was a convicted felon, (2) that the defendant was in knowing
possession of a firearm, and (3) that the firearm was in or affecting interstate
commerce.” United States v. Beckles, 565 F.3d 832, 841 (11th Cir. 2009)
(quotation omitted). The element of knowing possession can be established if the
government shows constructive possession through either direct or circumstantial
evidence. Id. “Constructive possession exists when the defendant exercises
ownership, dominion, or control over the item or has the power and intent to
exercise dominion or control.” Id. (quotation omitted).
Count Two was based on the three firearms that police found in Green’s
home after he was arrested. At trial, Moses testified that he saw firearms in
Green’s house during one of their April, 2009 visits. He provided law
enforcement with a sketch of the home and indicated the location of the weapons,
and at trial Agent Meadows, who participated in the search of Green’s house,
testified that the weapons were found almost exactly where Moses had indicated.
Agent Meadows further explained that his search of the house indicated that Green
was the only person living there at the time.
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Green contends that the element of knowing possession is not satisfied. He
testified at trial that the weapons did not belong to him. He argues on appeal that
his brothers-in-law had ample time to plant the weapons in his home prior to its
being searched by police. Furthermore, he points out that he did not possess any
weapons on his person at the time of his arrest.
The jury was entitled to disbelieve Green’s explanations at trial that the
weapons did not belong to him. See United States v. Thompson, 473 F.3d 1137,
1143 (11th Cir. 2006). The record contains sufficient evidence of Green’s
knowing possession of a firearm, and upholding the jury verdict on this count does
not result in a “manifest miscarriage of justice.” Edwards, 526 F.3d at 755–56.
III.
Next, Green challenges the calculation of his total offense level of 26 at
sentencing. When calculating the guideline range for a firearm possession offense
under 18 U.S.C. § 922(g), a four-level enhancement to the base offense level is
required “[i]f the defendant used or possessed any firearm or ammunition in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6). We give the
phrase “in connection with” its ordinary meaning and interpret it expansively. See
United States v. Rhind, 289 F.3d 690, 695 (11th Cir. 2002).
We have held that “in certain circumstances, mere possession of a firearm
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can be enough to apply a sentencing enhancement.” United States v. Jackson, 276
F.3d 1231, 1234 (11th Cir. 2001). This enhancement can be appropriate even
where there is no proof that the firearm actually facilitated the felony offense. See
Rhind, 289 F.3d at 695–96 (holding that the firearms were connected with
defendants’ counterfeiting offenses where it was reasonable to conclude that the
presence of a firearm protected the counterfeit money); U.S.S.G. § 2K2.1 cmt.
14(A); see also United States v. Wooten, 253 F. App’x 854, 858 (11th Cir. 2007)
(per curiam).
We review a district court’s application and interpretation of the guidelines
de novo and its factual findings for clear error. Rhind, 289 F.3d at 693. The
district court’s determination that the defendant used a firearm in connection with
another felony offense is a factual finding that we review for clear error. See
United States v. Whitfield, 50 F.3d 947, 949 (11th Cir. 1995) (per curiam).
Green avers that no evidence established that the firearms found in his home
were connected to another felony. He explains that he was not charged in federal
court with possession of methamphetamine—the underlying felony for the
sentencing enhancement—and that there is no evidence that he distributed any
controlled substance. He further argues that the purported methamphetamine
found in his home was never tested in a laboratory and therefore its possession
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cannot serve as the underlying felony.
We conclude that the district court did not clearly err in determining that
Green possessed a firearm in connection with his possession of methamphetamine.
Contrary to Green’s argument, this four-level enhancement may be appropriate
even if the defendant is not charged with or convicted of the underlying felony
offense. See U.S.S.G. § 2K2.1 cmt. 14(C). Numerous witnesses testified at trial to
seeing methamphetamine in Green’s house. Moses testified that he saw the
substance during a meeting with Green at Green’s home. At trial, two agents
testified to finding methamphetamine during the search of Green’s home, and
Agent Meadows specifically elaborated that he found methamphetamine in a
sandwich bag at the bottom of a glass. This testimony is sufficient to establish by
a preponderance of the evidence that Green in fact possessed methamphetamine.
See United States v. Smith, 480 F.3d 1277, 1280–81 (11th Cir. 2007) (upholding
the district court’s sentencing enhancement where allegations that the defendant
possessed cocaine were based on an officer’s testimony that he saw the defendant
hide a bag containing a white powdery substance in his sock, even though cocaine
was never recovered).
Moreover, it was reasonable for the district court to conclude that the
firearms found in Green’s home had the potential to facilitate the felony offense of
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possession of methamphetamine. A reasonable factfinder could infer that the
firearms were intended to protect Green while he possessed methamphetamine and
to prevent the methamphetamine from being stolen. See Rhind, 289 F.3d at695–96. As a result, the district court did not err in applying the four-level
enhancement for possessing a firearm in connection with a felony offense.
AFFIRMED.
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