United States v. Perry Johnson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 17, 2005
No. 04-12742 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-00031-CR-FTM-29DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PERRY JOHNSON,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 17, 2005)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
A jury convicted appellant, and the district court sentenced him, on two
counts of armed bank robbery (Counts One and Three), in violation of 18 U.S.C.
§§ 2113(a) and 2113(d) ; one count (Count Two) of using and carrying a firearm
during and in relation to a crime of violence and possessing a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A); one
count (Count Five) of possessing explosive pipe bombs in furtherance of a crime
of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(1)C)(ii); and one
count (Count Six) of possessing unregistered explosives, in violation of 26 U.S.C.
§§ 5861(d) and 5871. In this appeal, appellant contends that the district court
should have granted his Fed. R. Crim. P. 29(a) motion for judgment of acquittal on
Count Five. This is so, he says, because no reasonable jury could have found that
he participated in the detonation of pipe bombs behind a Publix supermarket and
near a Walgreens pharmacy for the purpose of detracting the police while he
robbed an AmSouth Bank and that such conduct was “in furtherance of” that bank
robbery within the meaning of 18 U.S.C. § 924(c)(1).
Section 924(c)(1)(A) states:
Except to the extent that a greater minimum sentence is otherwise
provided by this subsection or by any other provision of law, any
person who, during and in relation to any crime of violence or drug
trafficking crime (including a crime of violence or drug trafficking
crime that provides for an enhanced punishment if committed by the
use of a deadly or dangerous weapon or device) for which the person
may be prosecuted in a court of the United States, uses or carries a
firearm, or who, in furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such crime of
violence or drug trafficking crime–
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(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.
18 U.S.C. § 924(c)(1)(A). By definition, the term “firearm” includes a bomb. See
18 U.S.C. § 921(a)(3)(D) and (4)(A)(i), and a bank robbery is a “crime of
violence.” See e.g., United States v. Hunt, 187 F.3d 1269, 1270 (11th Cir. 1999).
In United States v. Timmons, 283 F.3d 1246 (11th Cir. 2002), we
“analyze[d] . . . , for the first time, the sufficiency of the evidence required to
support a conviction for possession of a firearm in ‘furtherance of’ a drug
trafficking crime.” Id, at 1252. Noting that “furtherance” means “a helping
forward,” we concluded that “a conviction under this portion of § 924(c) requires
that the prosecution establish that the firearm helped, furthered, promoted, or
advanced the drug trafficking.” Id. (citation omitted). We explained that
Congress intended that the government be required to “illustrate through specific
facts, which tie the defendant to the firearm, that the firearm was possessed to
advance or promote the criminal activity.” Id. Explaining further that “there must
be ‘a showing of some nexus between the firearm and the drug selling operation,’”
we concluded that “the evidence against Timmons (bullet proof vest, crack
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cocaine on the stove and under the cushions of the couch, two fully loaded
firearms on top of the oven and ammunition inside the oven in the living room of
his apartment) was sufficient for the jury to have concluded that Timmons was
guilty of possessing the firearms ‘in furtherance of’ drug trafficking.” Id. at 1253
(citation omitted).
In this case, the Government’s case established (1) that the destructive
devices were possessed in order to advance the bank robbery, and (2) connected
appellant to the destructive devices, such that a reasonable jury could have
concluded that the evidence established his guilt beyond a reasonable doubt.
AFFIRMED.
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