The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10982 ELEVENTH CIRCUIT
APRIL 13, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Docket No. 2:10-cr-00186-KD-M-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRYL JOHNSON,
Defendant-Appellant.
_________________________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________________________
(April 13, 2012)
Before TJOFLAT, EDMONDSON, and CARNES, Circuit Judges.
PER CURIAM:
Darryl Maurice Johnson appeals his 30-month sentence for
possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). On appeal,
Johnson challenges the four-level enhancement he received, pursuant to U.S.S.G.
§ 2K2.1(b)(6), based on the district court’s determination that his firearm was used
in connection with another felony offense -- possession of crack cocaine. No
reversible error has been shown; we affirm.
We review questions of law de novo and a district court’s factual
determinations for clear error. United States v. Rodriguez-Lopez, 363 F.3d 1134,
1137 (11th Cir. 2004). To conclude that a factual finding is clearly erroneous, we
“must be left with a definite and firm conviction that a mistake has been
committed.” Id.
Under section 2K2.1(b)(6), a defendant convicted of a firearm possession
offense may receive a four-level enhancement if he “used or possessed any firearm
or ammunition in connection with another felony offense.”1 U.S.S.G.
§ 2K2.1(b)(6). And “the government bears the burden of establishing by a
preponderance of the evidence the facts necessary to support a sentencing
enhancement.” United States v. Kinard, 472 F.3d 1294, 1298 (11th Cir. 2006).
1
That possession of crack cocaine qualifies as “another felony offense” within the meaning of
section 2K2.1(b)(6) is undisputed.
2
Johnson first argues that the district court erred in concluding that he
knowingly possessed the crack cocaine that was discovered in his truck. Knowing
possession may be demonstrated by evidence of either actual or constructive
possession. United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004). “[T]o
establish constructive possession, the government must produce evidence showing
ownership, dominion or control over the contraband itself . . . or the vehicle in
which contraband is concealed.” Id. Such evidence may be either direct or
circumstantial. Id.
We see no clear error in the district court’s determination that Johnson had
constructive possession of the crack cocaine. Although the drugs were discovered
on the passenger side of the truck, Johnson does not dispute that he owned the
truck and that he was driving the truck when the drugs were discovered. Thus, he
had the requisite ownership, dominion, and control over the drugs to establish
constructive possession. See id. Moreover, a government witness testified that --
just hours before the drugs were discovered -- a confidential informant told the
police that Johnson was in possession of drugs.2 Based on this record, the district
2
We reject Johnson’s argument that the district court erred in relying on this hearsay testimony.
A sentencing court is entitled to consider all information -- including hearsay -- in determining
whether a sentencing enhancement applies if “the evidence has sufficient indicia of reliability, the
court makes explicit findings of fact as to credibility, and the defendant has the opportunity to rebut
the evidence.” United States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010). To successfully
challenge his sentence based on unreliable hearsay, Johnson must show, among other things, “that
3
court could conclude by a preponderance of the evidence that Johnson knowingly
possessed the crack cocaine.
We next address Johnson’s second argument that -- even if he knowingly
possessed the crack cocaine -- nothing evidenced that he possessed the gun “in
connection with” his felony possession of crack cocaine. We review the district
court’s determination that the defendant used a gun “in connection with” another
felony offense for clear error. United States v. Whitfield, 50 F.3d 947, 949 & n.8
(11th Cir. 1995).
For purposes of a section 2K2.1(b)(6) enhancement, “in connection with”
means that the gun “facilitated, or had the potential of facilitating, another felony
offense.” U.S.S.G. § 2K2.1, comment. (n.14(A)). And we afford an “expansive
interpretation” to that term. See United States v. Rhind, 289 F.3d 690, 695 (11th
Cir. 2002) (analyzing the former section 2K2.1(b)(5) enhancement for possession
of a firearm in connection with another felony offense).
We are unconvinced that the district court clearly erred in determining that
Johnson’s possession of the gun had the potential to facilitate a drug offense. The
the challenged evidence is materially false or unreliable.” See id. Because the confidential
informant’s statement to police was corroborated by the physical evidence, Johnson has failed to
demonstrate that the statement was materially false or unreliable. And although the district court
failed to make explicit findings about the credibility of the statement, it did so implicitly. Thus, we
see no reversible error. See United States v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000) (stating that
the district court’s failure to make findings about the reliability of a hearsay statement does not
require reversal where the statement’s reliability is clear from the record).
4
gun was discovered in the truck’s glove box, in close proximity to the crack
cocaine. The government also produced testimony of a special agent from the
Bureau of Alcohol, Tobacco, Firearms and Explosives that drug users often carry
guns to protect themselves while buying drugs. Based on the evidence, it was
reasonable for the district court to conclude that Johnson’s gun had the potential to
facilitate both his acquisition of and his continued possession of the crack cocaine.
AFFIRMED.
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