The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14914 APRIL 24, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00251-CR-J-20-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG NARRAM WILLIAMS, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 24, 2006)
Before BIRCH and WILSON, Circuit Judges, and ROYAL*, District Judge.
PER CURIAM:
The appellant, Craig Narram Williams, appeals from his January 16, 2004,
conviction on three counts from a seven-count indictment. Williams was found
*
Honorable C. Ashley Royal, United States District Judge for the Middle District of
Georgia, sitting by designation.
guilty of Possession of a Firearm by a Convicted Felon (18 U.S.C. §§ 922(g)(1),
924(a)(2)), Possession of Crack Cocaine (less than 5g) with Intent to Distribute (21
U.S.C. §§ 841(a)(1), 841(b)(1)(B)), and Possession of Cocaine with Intent to
Distribute (21 U.S.C. §§ 841(a)(1), 841(b)(1)(C)). The jury acquitted him of
counts for Possession of a Firearm in Furtherance of a Drug Trafficking Offense,
and Distribution of Cocaine. Prior to trial, the Government had dismissed counts
for Possession of Body Armor by a Convicted Felon and Possession of a Firearm in
Furtherance of a Drug Trafficking Offense.
The charges against Williams resulted from the execution of a search warrant
on May 10, 2003, at a house on 4521 Friden Road in Jacksonville, Florida. Inside
the house at the time of the search were Williams and his girlfriend, Stephanie
Boardingham. Boardingham testified for the Government at trial. During the
search the officers found a Leinad 9mm firearm, a Taurus 9mm handgun, a box
containing 31.7 grams of crack cocaine, and baggies containing powder cocaine.
The Leinad firearm was concealed in a hole in the wall behind a washing machine.
The Taurus handgun and the cocaine were concealed in a hole in the floor
underneath a bed in the bedroom, covered by a rug.
On appeal, Mr. Williams raises six claims of error:
(1) That the district court erroneously denied his motion to suppress;
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(2) That there was insufficient evidence to support his conviction;
(3) That the district court erroneously denied his motion to sever
Count Three of the indictment, for Possession of a Firearm by a
Convicted Felon;
(4) That the district court erroneously admitted into evidence two
photographs of Mr. Williams holding handguns;
(5) That the district court at sentencing erroneously used a prior
juvenile conviction to determine that Mr. Williams was a career
offender; and
(6) That the Government failed to comply with the notice requirements
of 21 U.S.C. § 851 in seeking a sentencing enhancement based on a
prior conviction for Possession of Cocaine with Intent to Distribute.
For the reasons set forth below, we AFFIRM the decision of the court below.
I. Motion to Suppress
Mr. Williams’ primary appeal is from the district court’s denial of his motion
to suppress, based on a recommendation from the magistrate judge. On appeal of
an order on motion to suppress, we review findings of fact for clear error, but
review the district court’s application of the law to the facts de novo. United States
v. Gil, 204 F.3d 1347, 1350 (11th Cir. 2000). To determine whether a search
warrant was properly issued we must evaluate the information that was before the
issuing court, generally in the form of an affidavit from an investigating officer.
Whether the facts set forth in an affidavit constitute probable cause is a question of
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law to be reviewed de novo. United States v. Miller, 24 F.3d 1357, 1360 (11th Cir.
1994).
In this case, however, we do not rule on whether the search warrant was
properly issued or whether there was in fact probable cause, but find instead that
the evidence seized was admissible under the “good faith” exception of United
States v. Leon, 468 U.S. 897 (1985). Leon “stands for the principle that courts
generally should not render inadmissible evidence obtained by police officers
acting in reasonable reliance upon a search warrant that is ultimately found to be
unsupported by probable cause.” United States v. Martin, 297 F.3d 1308, 1313
(11th Cir. 2002). Under Leon, evidence seized pursuant to a search warrant should
be suppressed “only if the officers were dishonest or reckless in preparing their
affidavit or could not have harbored an objectively reasonable belief in the
existence of probable cause.” Id. Thus, there are only four situations in which
evidence seized in the execution of a search warrant will be suppressed:
(1) where the magistrate or judge in issuing a warrant was misled by
information in an affidavit that the affiant knew was false or would
have known was false except for his reckless disregard of the truth; (2)
where the issuing magistrate wholly abandoned his judicial role; (3)
where the affidavit supporting the warrant is so lacking in indicia of
probable cause as to render official belief in its existence entirely
unreasonable; and (4) where, depending upon the circumstances of the
particular case, a warrant is so facially deficient--i.e., in failing to
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particularize the place to be searched or the things to be seized--that
the executing officers cannot reasonably presume it to be valid.
United States v. Robinson, 336 F.3d 1293, 1296 (11th Cir. 2002). At issue in this
case are the first and third situations described in Robinson. Williams contends
that the affidavit on which the warrant was based was so lacking in indicia of
probable cause as to render official belief in its existence unreasonable, and further
contends that the officer who executed the affidavit exhibited a reckless disregard
for the truth. Neither argument is supported in the record.
The record shows that the warrant was issued on May 7, 2003, by a judge of
the County Court in Florida’s Fourth Judicial Circuit, based on an affidavit by
Detective Thomas of the Organized Crime Section, Narcotics Unit, Jacksonville
Sheriff’s Office. The warrant was based on information that was provided by a
confidential informant and verified by the affiant officer. In his affidavit, Detective
Thomas stated:
Within the past 10 days your affiant personally took a confidential
informant to the [house at 4521 Friden Street] where the confidential
informant made a controlled buy of cocaine (powder). Before the
informant entered the above-described [premises], your affiant
searched the informant and determined that the informant was not in
possession of any controlled substance.
Your affiant then gave the informant money with which to buy a
quantity of a controlled substance and watched the informant enter the
above-described premises and shortly emerge therefrom. Said
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confidential informant then immediately met with your affiant at a
prearranged location where said informant turned over the off-white,
powdery like substance to your affiant which your affiant recognized
to be cocaine (powder). The informant said the substance had been
purchased from unknown person or persons, within the above-
described [premises] with money furnished by your affiant. The
informant also stated that unknown person or persons who sold the
off-white, powdery like substance to the informant represented the
same to be cocaine (powder). Said confidential informant stated that
additional quantities of the substance were observed in the above-
described premises after the purchase was made. Based on this
information, your affiant believes that an additional quantity of
cocaine (powder) can be found within the said premises.
Your affiant conducted a field test on the off-white, powdery like
substance. The results of the test showed the substance to be cocaine
(powder).
At all times pertinent hereto, the confidential informant was in plain
view of your affiant except for the brief time that the confidential
informant was inside the above-described premises.
Whether or not actual probable cause existed, the affidavit sets forth
sufficient indicia of probable cause to justify a reasonable belief in the warrant's
validity. In evaluating the information set forth in Detective Thomas' affidavit, the
issuing judge faced a close call. On one hand, there is no information in the
affidavit as to the identity or reliability of the confidential informant ("CI"), and
there is much information in the record, outside the four corners of the affidavit, to
indicate that he was not reliable. On the other hand, the affidavit does not rely
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primarily on statements of the CI, but on observations by Detective Thomas
himself, who arranged and monitored a controlled buy conducted by the CI.
With regard to the reliability of the informant, it is clear from the record that
the CI was not in fact a reliable informant. The informant testified at trial. There
were numerous inconsistencies in his testimony. Further, his testimony revealed
that he had been in jail himself on pending drug charges, and had been released in
order to act as an informant in exchange for more lenient treatment. Prior to the
controlled buy in this case, he had not provided any information to the police.
During the time he was released to work with the police, he continued to use and
sell drugs himself. Based on the verdict, it is clear that the jury found the
informant’s testimony unreliable. Williams was acquitted on the distribution of
cocaine count, a charge that depended entirely on the credibility of the informant’s
testimony that he identified Williams several months later as the unknown man
from whom he purchased cocaine during the controlled buy.
It is not clear that the reliability of the CI was a necessary element of
probable cause in this case. The primary basis of probable cause set forth in the
affidavit is not a statement from the CI, but rather the controlled buy conducted by
the CI in Detective Thomas' presence. Thus, the value of the CI in this instance
derives not from what he told the investigator, but from what he did for the
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investigator. Immediately prior to the buy, Detective Thomas searched the CI and
determined that he did not possess any drugs. Detective Thomas observed the CI
as he went into and came out of the house on Friden Street, and thus was aware that
the CI had no opportunity to obtain drugs from any other source. The CI entered
the house with money and no drugs and came out with drugs and no money. From
his own observations alone, then, without relying on a single hearsay statement
from the CI, Detective Thomas had adequate reason to believe that there was
probable cause to support a search warrant.
The Supreme Court has prescribed a "totality of the circumstances" approach
for evaluating search warrants. See Illinois v. Gates, 462 U.S. 213 (1983). Gates
concerned an affidavit based primarily on information from an anonymous
informant, corroborated in certain details by police surveillance. In reversing a
district court's order granting a motion to suppress, the Supreme Court rejected any
rigid tests for evaluating such information and observed that “[i]nformants' tips . . .
come in many shapes and sizes from many different types of persons.” 462 U.S. at
232. In some cases, an informant is an anonymous tipster who calls the police with
information. In other cases, an informant may be an “honest citizen” who has
never given information to the police before, but has knowledge of some particular
situation. In still other cases, an informant may be a fellow criminal who regularly
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provides information to the police for money, or to obtain more favorable treatment
with pending charges.
There are various factors that can be considered when assessing the value of
an informant’s information. A criminal informant, for example, may have a history
of cooperation with the police and be “known for the unusual reliability of his
predictions of certain types of criminal activities in a locality.” Gates, 462 U.S. at
233. In such cases, the informant’s reliability may be sufficient to establish
probable cause based on his statements alone. In the case of citizen tips, “rigorous
scrutiny” of the informant’s basis of knowledge may be unnecessary “if an
unquestionably honest citizen comes forward with a report of criminal
activity--which if fabricated would subject him to criminal liability.” Id. at 233-34.
In the case of an anonymous tipster, as on the facts in Gates, the reliability of the
information may be established by its detail, if supplemented by independent police
investigation.
This case, where the reliability of the informant is unknown, is most closely
comparable to the case of an anonymous tipster. The information provided is
reliable only to the extent that it can be supplemented or corroborated by
investigation. Consistent with that requirement for additional evidence, Detective
Thomas did not rely solely on the CI’s representation that there was cocaine in the
9
house, but instead confirmed it his own independent investigation, through the
controlled buy.
Two cases from other circuits are factually similar to this case. In United
States v. McKinney, 143 F.3d 325 (7th Cir. 1998), the informant was previously
untested and the warrant application did not convey much information from the
informant’s original tip. Nevertheless, the informant’s reliability was boosted by
three controlled buys. “Controlled buys,” remarked the court, “add great weight to
an informant’s tip.” In the controlled buys, as in this case, the informant was
searched before and after entering the premises, and was watched as he entered and
left the building. The court concluded with the following observation:
While police can always do more to boost reliability, a probable cause
determination does not require the same amount of certainty as a guilty
verdict. We require only a reasonable probability that evidence of a
crime can be found at a certain location. McKinney is right that the
informant's information alone could not suffice, but the informant's
information plus the police investigation via three controlled buys
sufficiently supported the Illinois Circuit Court's finding of probable
cause.
143 F.3d at 329. In this case, in contrast to McKinney, there was only one
controlled buy, rather than three. It is not obvious that this distinction is
significant. Based on a reading of McKinney, it would have been reasonable for an
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officer in Detective Thomas’ position to believe that one controlled buy could also
provide cause to search the house for illegal drugs.
In United States v. Garcia, 983 F.2d 1160 (1st Cir. 1993), as in this case, the
detective’s affidavit provided no background as to the informant’s reliability, but
was based on a single controlled buy. The court found that the affidavit established
probable cause because the detective “confirmed the information with which the
confidential informant provided him by carrying out a carefully-executed
‘controlled buy.’” 983 F.2d at 1167. The controlled buy in Garcia was identical to
the controlled buy in this case. The informant was searched for contraband,
watched as he entered the apartment, and watched as he emerged from the
apartment. He entered the apartment with money and emerged with cocaine. The
defendant argued that it was possible that the informant had stashed cocaine
somewhere outside the sight of the detectives, in order to “frame” the defendant.
The court acknowledged this possibility, but found that it “strain[ed] credulity on a
common-sense reading.” Id. In this case, it would have been difficult for the CI to
obtain cocaine from a source other than inside the house, as he was watched by the
detective at all times that he was not inside the house.
We do not today adopt the holdings of McKinney or Garcia, nor do we hold
that the CI's tip, confirmed by the controlled buy, was sufficient to create probable
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cause under the totality of the circumstances. That two other circuit courts have
found such information to be sufficient, however, indicates that it was not
unreasonable for Detective Thomas to believe in the existence of probable cause
and to rely on the warrant as valid. Moreover, because the most significant
information in the affidavit was the controlled buy, directly observed by Detective
Thomas, we do not find that Detective Thomas omitted information about the CI's
reliability out of a reckless disregard for the truth. Detective Thomas never
affirmatively represented the CI as reliable and did not rely on the credibility of CI
to support his warrant application.
Williams further contends that the passage of time between the controlled
buy and the issuance of the warrant made it impossible to establish probable cause
that there was still cocaine in the house at the time the warrant was issued. Without
ruling on the merits of this staleness argument, we find again that the evidence
obtained from the search was admissible pursuant to the Leon good faith exception.
It was not unreasonable for Detective Thomas to execute the warrant on the belief
that it was supported by probable cause.
Although we are not prepared to hold that the information in the affidavit
was fresh enough to establish firmly the existence of probable cause, we do find
that the period between the controlled buy and the issuance of the warrant was not
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so long as to make it unreasonable for an officer to believe in good faith that there
was probable cause. Our law concerning staleness, particularly in the context of
drug transactions, is summarized in United States v. Bascaro, 742 F.2d 1335, 1345-
46 (11th Cir. 1984):
No mechanical test exists for determining when information becomes
fatally stale; rather, staleness is an issue which must be decided on the
peculiar facts of each case. In general, the basic criterion as to the
duration of probable cause is the inherent nature of the crime. The
circuits hold that where an affidavit recites a mere isolated violation
then it is not unreasonable to believe that probable cause quickly
dwindles with the passage of time. On the other hand, if an affidavit
recites activity indicating protracted or continuous conduct, time is of
less significance. Protracted and continuous activity is inherent in
large-scale drug trafficking operations. In such cases, then, the
staleness issue should be construed liberally.
(internal quotations and citations omitted). In this case, the affidavit states that the
controlled buy was conducted “within the past 10 days.” Subsequent testimony
revealed that the buy was conducted the day before the application for the warrant
and four days before its execution, but the precise date was not provided in the
affidavit.
Although Detective Thomas' affidavit does not set forth any indication that
the house was part of a large-scale drug trafficking operation as in Bascaro, it does
give reason to suspect that at the time of the controlled buy the house was a
location used for the sale of drugs in retail or small distribution amounts. By its
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nature, drug-dealing is an ongoing activity, not an isolated occurrence. Because
selling drugs requires a dealer to establish a supply source and develop a customer
base or reputation, it is not something that a person can simply do on impulse. It is
reasonable to infer that the use of a house for the sale of drugs will continue over
some period of time, as (1) “residency in a house . . . generally is not transitory and
ephemeral,” United States v. Bervaldi, 226 F.3d 1256, 1265 (11th Cir. 2000), and
(2) the location for the sale of drugs will require some consistency so that
purchasers will know where to go.
The fact that the informant only observed a small quantity of drugs on the
premises does not necessarily suggest that the quantity would be dissipated days
later. In the context of a retail establishment, it is reasonable to infer that supplies
would be restocked. If a person purchases the last carton of milk from a grocery
store on Monday, he may still have probable cause to believe that the store will
have milk in stock at the end of the week. Within the context of the sale of drugs,
ten days is not an exceptionally long period of time – not long enough, at least, to
make it plain to a reasonable officer acting in good faith that there could not have
been probable cause for a search warrant to issue. Accordingly, we find that
Detective Thomas had a good faith basis for relying on the validity of the warrant.
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II. Sufficiency of the Evidence
In his second enumeration of error, Williams contends that the evidence at
trial was insufficient to support his convictions. Williams contends that the case
was purely circumstantial and that the Government failed to present evidence to
show that he had actual or constructive possession of the drugs and weapons found
in the house at 4521 Friden Street. A challenge to the sufficiency of evidence is
reviewed de novo. United States v. Woodruff, 296 F.3d 1041 (11th Cir. 2002). We
find that there was ample evidence in the record to demonstrate Williams'
constructive possession of the drugs and weapons found in the house during the
execution of the warrant.
To establish constructive possession, “the government may show ownership,
dominion, or control over the contraband itself, or the premises or vehicle in which
contraband is concealed.” United States v. Guerrero, 935 F.2d 189, 192-93 (11th
Cir. 1991). The Government presented substantial evidence to show that Williams
had dominion or control over the house in which the drugs and weapons were
found, was aware of the presence of the drugs and weapons, and had access to
them. At the time of the search, Williams was in the house with his girlfriend,
Boardingham. There was evidence that actual title to the house had been
transferred among Williams and various family members, suggesting an attempt to
15
conceal its ownership. Further attempts to conceal ownership were indicated by
testimony that Williams had transferred responsibility for the utilities in the house
to a minor nephew.
Substantial evidence as to ownership and control of the house, and as to
knowledge of the items hidden throughout the house, came from taped telephone
conversations from the jail. In one such conversation, Williams instructed his
father to sell the house for “twenty.” The following day Williams spoke to his
wife, and objected to her suggestions that his sister owned the house. He told his
wife that he had paid the taxes and utilities on the house and instructed his wife to
“straighten” his sister out.
From his own mouth, it is clear that Williams had primary control over the
house and that he was well aware of various hiding places in the house, not only
the holes in the floor under the bed and in the wall behind the washing machine,
but also hiding places that the police failed to discover. In conversations with his
mother, Williams instructed her to secure the house and to recover cash from
various hiding places in the house and the back yard to pay for his defense. He
also directed his mother to have his wife tell police that the guns were registered in
her name and that he didn’t know anything about them. In one conversation he
described one of the guns, which police initially suspected of having a silencer, as
16
having only an “extension.” These conversations can lead to an inference that
Williams had knowledge of secret places on the property, knowledge of what was
stored in those secret places, and had control over the items stored there.
Constructive possession was further proved by testimony from Williams’
girlfriend, Boardingham, who testified on direct examination that she visited
Williams at the Friden Street house and sometimes spent the night with him. On
one occasion she had seen him carry a gun from the sofa to the bedroom where the
hole in the floor was. On cross-examination, however, she testified that Williams
did not live at the house and that they spent the night there only when they were
working late on a recording. She also testified that she had only seen marijuana in
the hole in the floor. These inconsistencies may have resulted from Williams’
taped telephone conversation with an unidentified female, whom he directed to
send a “little letter” to Boardingham, from a disguised postmark, to encourage her
to testify in his behalf. The jury was entitled to believe some parts of her testimony
and discount others.
In addition to the evidence above, two photographs were admitted which
showed Williams posing with handguns similar to the ones recovered in the search.
Williams appeals the admission of these photographs, and that argument is
addressed below. We find that the photographs were admissible, and they are
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additional evidence of his knowing possession of the guns. Even in the absence of
those photographs, the evidence of Mr. Williams’ control over the house and its
contents was sufficient to support a jury’s finding that he was guilty beyond a
reasonable doubt of possession of the drugs and guns found in the house.
Williams’ contention that the insufficiency of the evidence is demonstrated
by inconsistent verdicts from the jury is without merit. The verdicts in this case are
not necessarily inconsistent. Williams was convicted on the counts of possession
of cocaine, possession of crack, and possession of a firearm by a convicted felon,
while he was acquitted of possession of a firearm in furtherance of drug trafficking
activity and distribution of cocaine. It is conceivable that the jury could have
found that Williams possessed the weapon but did not possess it in furtherance of
drug activities. At any rate, it is well settled that juries are entitled to reach
compromises and that "[c]onsistency in the verdict is not necessary." United States
v. Odom, 252 F.3d 1289, 1298 (11th Cir. 2001) (quoting Dunn v. United States,
284 U.S. 390, 393 (1932) (Holmes, J.)). Inconsistent verdicts do not defeat a
defendant’s conviction, and “‘[s]ufficiency-of-the evidence review involves
assessment by the courts of whether the evidence adduced at trial could support any
rational determination of guilt beyond a reasonable doubt,’ a review that is
‘independent of the jury's determination that evidence on another count was
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insufficient.’” United States v. Veal, 153 F.3d 1233, 1252-53 (11th Cir. 1998)
(quoting United States v. Powell, 469 U.S. 57, 67(1984).
III. Admission of Photographs
In response to Williams' fourth argument (addressed here in part III because
of its connection to the insufficiency of evidence argument), we find that the
district court did not err when it admitted into evidence two photographs seized
from the house that showed Williams posing with a handgun that appeared to be
the same as the gun found in the hole in the floor. The Government offered the
photographs pursuant to Rule 404(b) of the Federal Rules of Evidence, to show that
Williams had exercised dominion and control over the gun. Rulings concerning the
admissibility of evidence are reviewed for abuse of discretion. United States v.
Johnson, 139 F.3d 1359, 1365 (11th Cir. 1998).
Williams objects that the admission of the photographs portrayed him as
“gun-toting lawbreaker,” amounted to character evidence, and should have been
excluded pursuant to Rule 403. Williams further argues that the photographs are
irrelevant because it is impossible to determine whether the guns in the
photographs are the same as the guns charged in the indictment, or even if they are
real firearms. Boardingham testified at trial that the guns in the photographs were
“replicas.”
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Our precedent establishes that the photographs were relevant and admissible
under Rule 404(b) as evidence that the plaintiff was in possession of the guns
found in the house. This case can be compared with another case in which
evidence of a defendant’s earlier possession of firearms was offered as proof that
he knowingly possessed firearms discovered on a later occasion. In United States
v. Jernigan, 341 F.3d 1273 (11th Cir. 2003), this Court affirmed the admission of a
defendant’s prior convictions involving the possession of a firearm and ruled that
those convictions were evidence that logically bore on his knowledge of the
presence of a gun in his car at the time he was pulled over. As the Court reasoned,
the fact that the defendant “knowingly possessed a firearm in a car on a previous
occasion makes it more likely that he knowingly did so this time as well, and not
because of accident or mistake.” Id. at 1281-82.
The evidence in this case is even more relevant to the crime than the
evidence in Jernigan was. In Jernigan the prior convictions involved different
locations and different cars. In this case, at least one photograph was taken in the
same house where the weapons were hidden. In Jernigan, the prior convictions
occurred four and five years prior to the offense in question. In this case, the
photographs were taken approximately five months before the search. In Jernigan,
there was no evidence that the guns from the prior convictions were the same or
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similar to the gun the defendant was accused of possessing. In this case the
Government contended that the gun in the picture appeared to be the same gun as
the one found in a hole underneath the bed. The jury had the opportunity to
examine the photographs and the weapon, to consider the testimony of
Boardingham that the weapon in the photographs was a replica, and to determine
for itself whether it was the same gun.
The photographs were relevant and probative of an important issue in the
case, and their prejudicial effect did not outweigh their probative value. Certainly
the photographs were no more prejudicial than the prior felony convictions in
Jernigan or the similar photographs admitted in United States v. Nixon, 918 F.2d
895 (11th Cir. 1990). The district court gave an appropriate limiting instruction
that the jury was to consider the photographs only for the purpose of establishing
Williams' state of mind or absence of mistake or accident. We cannot find that the
admission of these photographs was an abuse of discretion.
IV. Denial of Motion to Sever
Williams contends that the district court abused its discretion by denying his
motion to sever the count alleging possession of a firearm by a convicted felon, and
that he was prejudiced by evidence of his previous felony conviction. At trial,
Williams stipulated that he was a convicted felon, and the jury was not given
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details of the nature of his prior offense. We review the denial of the motion to
sever for abuse of discretion, United States v. Hammond, 781 F.2d 1536, 1539
(11th Cir. 1986), and affirm the order of the district court.
In this case, the initial joinder of the possession of a firearm by a convicted
felon offense with the other offenses in the indictment was proper under Rule 8(a)
of the Federal Rules of Criminal Procedure. Rule 8(a) permits the joinder of
offenses “if the offenses charged . . . are of the same or similar character, or are
based on the same act or transaction, or are connected with or constitute parts of a
common scheme or plan.” The felon-in-possession charge was of the same or
similar character as the other firearms charge, since both involved the possession of
the same weapons at the same time. The charge was based on the same act or
transaction as the drug charges, since the weapons and the drugs were found at the
same time and one of the weapons was found in the same place as the drugs.
Even where joinder is proper under Rule 8(a), Rule 14 permits relief from
prejudicial joinder, including severance of counts, “if the joinder of offenses . . . in
an indictment . . . appears to prejudice a defendant.” We “will not reverse the
denial of a severance motion absent a clear abuse of discretion resulting in
compelling prejudice against which the district court could offer no protection.”
United States v. Walser, 3 F.3d 280, 285 (11th Cir. 1993). This Court has affirmed
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the denial of motion to sever in a factually similar case. In United States v.
Bennett, 368 F.3d 1343 (11th Cir. 2004), vacated on other grounds
(sentencing/Booker issues), 125 S. Ct. 1044 (2005), the district court refused to
sever a felon-in-possession-of-firearms charge from other counts for drug
trafficking and attempting to kill an official in the performance of official duties.
The Court found that the defendant had failed to meet his “heavy burden” of
demonstrating compelling prejudice. Any prejudice was mitigated because the
parties stipulated to the felony and “the jury did not hear any details about the prior
bad act, thereby minimizing the possibility that the jury would improperly consider
the evidence of the prior conviction when deliberating about the other felony
charges.” 368 F.3d at 1351. In addition, prejudice was mitigated by a jury
instruction instructing the jury to consider the prior conviction only with regard to
the felon-in-possession charge and disregard the prior conviction in considering the
other charges.
In this case, as in Bennett, there was a stipulation as to the conviction and the
jury had no details about the nature of the prior conviction. There is no indication
that the parties dwelt excessively on the prior conviction during the course of the
trial. The jury charge, however, was less specific than the charge in Bennett. The
district court simply charged the jury to consider the evidence as to each count
23
separately and charged that a verdict of guilty or not guilty as to any one count
should not affect the verdict as to any of the other charges. The charge did not
specifically instruct the jury to consider the prior conviction only in connection
with the felon-in-possession charge.
It is generally better practice to charge the jury specifically to limit its
consideration of the prior conviction to the felon in possession charge. In
Panzavecchia v. Wainwright, 658 F.2d 337 (5th Cir. Unit B, 1981), the Court found
that the failure to sever a felon-in-possession count made a trial fundamentally
unfair. There were “no proper instructions to the jury to relate the evidence of the
counterfeiting conviction only to the firearm possession charge.” 658 F.2d at 341.
The trial judge in that case “merely cautioned the jurors to consider each charge
separately.” United States v. Jiminez, 983 F.2d 1020, 1022 (11th Cir. 1993).
Panzavecchia does not mandate reversal based on the deficient jury charge alone,
however. The Court observed that great emphasis was placed on the prior
conviction during the course of the trial. In this case, by contrast, there were no
repeated references to the prior conviction. The degree of prejudice from the
deficient jury charge was much smaller. The jury’s verdict of acquittal on two
counts demonstrates that the jury followed the judge’s instructions and considered
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each count separately. On these facts we cannot find that the district court abused
its discretion in denying the motion to sever.
V. Sentencing Issues
A. Criminal History
In his fifth argument, Williams contends that the district court erred in using
an armed robbery conviction that occurred before his eighteenth birthday to
calculate his criminal history and establish his “career offender” status under USSG
§ 4A1.2(d). Williams argues that the prior conviction should not have been
considered because it occurred more than five years before the offense in this case.
This argument is completely without merit.
"This Court reviews the district court's findings of fact for clear error and its
application of the sentencing guidelines to those facts de novo." United States v.
Anderson, 326 F.3d 1319, 1326 (11th Cir. 2003). In United States v. Crawford,
407 F.3d 1174, 1178-79 (11th Cir. 2005), this Court held that pre-Booker standards
for reviewing application of the sentencing guidelines still apply post-Booker
because (1) the "reasonableness" standard applies to the ultimate sentence imposed,
not to the application of individual guidelines; (2) Booker did not affect 18 U.S.C.
§ 3742(f), which requires remand of any case in which the district court incorrectly
applies the guidelines; and (3) the requirement that district courts still "consult" the
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guidelines necessarily means that the court must correctly calculate the guidelines
range.
Section 4B1.1(a) of the sentencing guidelines sets forth the definition of a
"career offender" for sentencing purposes:
A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the instant
offense of conviction; (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
If a defendant is found to be a career offender under Section 4B1.1(a), the
defendant's offense level is enhanced under Section 4B1.1(b) if the offense level is
greater than the otherwise-applicable offense level.
One of the prior offenses that formed the basis of Williams' career offender
status was an armed robbery conviction that occurred prior to Williams' eighteenth
birthday. Section 4A1.2(d) of the guidelines provides as to offenses committed
prior to age eighteen:
(1) If the defendant was convicted as an adult and received a sentence
of imprisonment exceeding one year and one month, add 3 points
under § 4A1.1(a) for each such sentence.
(2) In any other case,
(A) add 2 points under § 4A1.1(b) for each adult or
juvenile sentence to confinement of at least sixty days if
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the defendant was released from such confinement within
five years of his commencement of the instant offense;
(B) add 1 point under § 4A1.1(c) for each adult or
juvenile sentence imposed within five years of the
defendant’s commencement of the instant offense not
covered in (A).
In this case, the armed robbery conviction in question was an adult conviction with
a sentence of imprisonment for a term exceeding one year and one month. As such,
the five year limitation of section 4A1.2(d)(2) does not apply. It is clear from the
language of the guidelines that the five-year “look back” limitation applies only to
lesser sentences. Because the conviction falls under section 4A1.2(d)(1), there is
no time limitation on its application to the career offender consideration.
B. Notice of Sentencing Enhancement
In his final argument, Williams contests a sentencing enhancement based on
a prior conviction for possession of cocaine with intent to distribute, alleging that
the Government failed to give adequate notice as required by 21 U.S.C. §
851(a)(1). Williams’ sentence was not enhanced pursuant to section 851, however,
but was enhanced under the career offender provisions of the guidelines. As noted
above, Williams cannot demonstrate that he should not have qualified as a career
offender under section 4B1.1. Thus, the notice requirements of 21 U.S.C. § 851 do
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not apply in this case and cannot form the basis for vacating his sentence or
remanding his case to the district court for resentencing.
Even if section 851 did apply, the Government’s notice was adequate under
Section 851. The notice incorrectly stated that Williams had previously been
convicted of trafficking in cocaine under Georgia law. In fact, Williams had
pleaded guilty to a lesser included offense of possession with intent to distribute
cocaine. Although the charge described in the notice was incorrect, the notice
included the criminal action number, county, date, and year of conviction. In
addition, attached to the notice was a copy of the state court’s final disposition,
which clearly showed the conviction was for possession with intent. This notice
was sufficient to “signal unambiguously the government’s intent to seek an
enhancement based on a particular prior conviction.” Perez v. United States, 249
F.3d 1261, 1265-66 (11th Cir. 2001).
AFFIRMED.
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