The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13072 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 9, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00152-WS-M-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
LARRY DALE MCCOY,
llllllllllllllllllll lDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(May 9, 2012)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Larry Dale McCoy appeals his convictions and total fifty-one-month
sentence for knowing and willful sale of firearms without making required
records, in violation of 18 U.S.C. § 922(b)(5); making false entry in records by a
Federal Firearms Licensee, in violation of 18 U.S.C. § 922(m); and sale of a
firearm and ammunition to a convicted felon, in violation of 18 U.S.C.
§ 922(d)(1). First, McCoy argues that he was denied his Sixth Amendment right
to an impartial jury. Second, McCoy argues that he was denied his Sixth
Amendment right to effective assistance of counsel. Third, McCoy argues that the
government failed to prove the charges in the superceding indictment beyond a
reasonable doubt. Fourth, McCoy argues that the district court clearly erred in
applying a base offense level of twenty, pursuant to U.S.S.G. § 2K2.1(a)(4)(B), for
an offense involving both a semiautomatic firearm capable of accepting a large
capacity magazine and a conviction under 18 U.S.C. § 922(d). Fifth, McCoy
argues that the district court clearly erred in applying a two-level sentence
enhancement, pursuant to U.S.S.G. § 2K2.1(b)(1)(A), for an offense involving
three to seven firearms. Sixth and finally, McCoy argues that his total fifty-one-
month sentence was procedurally and substantively unreasonable.
I.
We review issues first raised on appeal under a plain error standard. United
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States v. Chisholm, 73 F.3d 304, 307 (11th Cir. 1996). However, we are
precluded “from reviewing an issue raised on appeal if it has been waived through
the doctrine of invited error.” United States v. Brannan, 562 F.3d 1300, 1306
(11th Cir. 2009) (emphasis in original). The doctrine of invited error applies when
a party induces or invites the district court into making an error, particularly where
it “is not clear that the defendant was prejudiced thereby.” United States v. Lewis,
524 F.2d 991, 992 (5th Cir. 1975). We have held that the doctrine of invited error
applies to at least some communications with a jury in deliberations. United
States v. Cook, 586 F.2d 572, 578 (5th Cir. 1978) (observing that the defendant
could not complain where he approved the court’s note to a deadlocked jury
urging them to continue deliberations).
Here, McCoy invited any error regarding the court’s decision not to further
investigate the jury’s potential prejudice. On appeal, McCoy broadly characterizes
the issue as whether defense counsel could waive McCoy’s right to an impartial
jury, but a closer review of McCoy’s allegations reveals that the issue here is more
limited: whether McCoy’s counsel could consent to the court’s limited inquiry in
determining that the jury was in fact impartial. Although the record does not
detail any communication between McCoy and his counsel on this issue, McCoy’s
counsel indicated that McCoy consented to dismissing Juror Odom and continuing
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with eleven jurors. McCoy’s counsel then suggested that the court perhaps should
proceed without interviewing the remaining jurors in order to avoid emphasizing
any extrinsic information, and the government and the court agreed.
Even assuming that McCoy’s counsel could not invite any error on this
issue, the district court did not plainly err in concluding that the remaining jurors
were not unfairly prejudiced by any information potentially shared by Juror Odom.
McCoy did not assert this objection during the court’s discussion of Juror Odom
and, on appeal, McCoy cites no authority establishing that the district court’s
decision to defer to counsel’s wishes and to interview and dismiss only Juror
Odom would amount to plain error.
II.
We generally do not consider ineffective assistance of counsel claims on
direct appeal because the record typically is insufficiently developed, especially
where the claim was not raised at the district court. See United States v. Bender,
290 F.3d 1279, 1284 (11th Cir. 2002). The Supreme Court has recognized that
there may be rare cases “in which trial counsel’s ineffectiveness is so apparent
from the record” that the issue may be considered on direct appeal. Massaro v.
United States, 538 U.S. 500, 508, 123 S. Ct. 1690, 1696 (2003). However, this
kind of claim is more appropriately resolved in a habeas corpus proceeding, where
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an evidentiary hearing may be held. United States v. Andrews, 953 F.2d 1312,
1327 (11th Cir. 1992).
Here, the record does not indicate that McCoy’s counsel was so apparently
and exceptionally ineffective as to warrant review on direct appeal. McCoy did
not raise below the issue of ineffective assistance of counsel, and there was no
opportunity for the district court to develop the factual record for consideration on
appeal. We therefore decline to address this issue.
III.
We review de novo a district court’s denial of judgment of acquittal on
sufficiency of the evidence grounds. United States v. Browne, 505 F.3d 1229,
1253 (11th Cir. 2007). We “must view the evidence in the light most favorable to
the government and decide whether a reasonable fact finder could have reached a
conclusion of guilt beyond a reasonable doubt.” United States v. Herrera, 931
F.2d 761, 762 (11th Cir. 1991). We will not disturb a jury verdict “if any
reasonable construction of the evidence would have allowed the jury to find the
defendant guilty beyond a reasonable doubt.” Id. The “evidence need not be
inconsistent with every reasonable hypothesis except guilt, and the jury is free to
choose between or among the reasonable conclusions to be drawn from the
evidence presented at trial.” United States v. Hernandez, 896 F.2d 513, 517 (11th
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Cir. 1990).
In order to convict McCoy on Counts Three, Seven, and Nine, the
government must prove that: (1) McCoy was a federally licensed dealer, (2) who
sold a firearm to a person, and (3) failed to keep the required records. 18 U.S.C.
§ 922(b)(5).
In order to convict McCoy on Counts Four, Eight, and Ten, the government
must prove that: (1) McCoy was a federally licensed dealer, (2) who knowingly
falsified or knowingly failed to enter or maintain required records. Id. § 922(m).
Finally, in order to convict McCoy on Count Eleven, the government must
prove that: (1) McCoy sold a firearm or ammunition, (2) to a person indicted for or
convicted of a crime punishable by imprisonment for a term exceeding one year,
(3) of which McCoy knew or had reasonable cause to believe. Id. § 922(d)(1).
Here, the district court did not err in denying a judgment of acquittal
because the evidence, viewed in the light most favorable to the government,
adequately supports each count of conviction. The parties stipulated that McCoy
was a federally licensed firearms dealer. Despite McCoy’s arguments to the
contrary, the testimony at trial established that he was involved in all three
transactions that led to his convictions. He personally sold a firearm to Blakely
and allowed Henderson to fill out the paperwork in her name; McCoy personally
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suggested that Smith purchase a firearm and put the paperwork in Tinsley’s name;
and McCoy explicitly gave approval for Bridges to purchase a firearm and put the
paperwork in Frazier’s name. These acts are sufficient to support the convictions
on Counts Three, Four, Seven, Eight, Nine, and Ten. See id. § 922(b)(5); id. §
922(m); United States v. Nelson, 221 F.3d 1206, 1209 (11th Cir. 2000).
As for Count Eleven, testimony at trial established that Smith told McCoy
that Smith probably had an unresolved drug charge. McCoy also knew that
Smith’s application to purchase a firearm had been denied by the FBI. Knowing
this, McCoy still allowed Smith to purchase a firearm. This evidence is adequate
to support the conviction on Count Eleven.
IV.
The government bears the burden of establishing by a preponderance of the
evidence any facts necessary to support a sentence enhancement. United States v.
Askew, 193 F.3d 1181, 1183 (11th Cir. 1999). However, the defendant’s failure
to object to allegations of fact in a PSI admits those facts for sentencing purposes.
United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006). Sentencing errors
raised for the first time on appeal are reviewed under a plain error standard.
Chisholm, 73 F.3d at 307.
Section 2K2.1(a)(4)(B) of the Guidelines establishes a base offense level of
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twenty if: (1) “the offense involved a . . . semiautomatic firearm that is capable of
accepting a large capacity magazine” and (2) the defendant “is convicted under 18
U.S.C. § 922(d).” U.S.S.G. § 2K2.1(a)(4)(B). The commentary to this section
defines a qualifying firearm as one with an attached “magazine or similar device
that could accept more than 15 rounds of ammunition.” Id. cmt. 2. Unless
otherwise specified, a convicted defendant’s guideline range is determined on the
basis of all relevant conduct, which includes “all acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, or willfully caused by
the defendant . . . that occurred during the commission of the offense of conviction
. . . .” Id. § 1B1.3(a)(1)(A). In cases where multiple counts are grouped under
§ 3D1.2(d), relevant conduct includes acts and omissions that were part of the
same course of conduct or scheme as the offense of conviction. Id. § 1B1.3(a)(2).
Here, we find no reversible error in the district court’s decision to apply a
base offense level of twenty under § 2K2.1(a)(4)(B). McCoy was convicted under
§ 922(d) for the sale to Smith. McCoy did not object to the PSI’s facts
establishing that he sold at least two other large-magazine firearms in strawman
purchases, similar to the Smith purchase. One of these strawman sales resulted in
two convictions, which were grouped with the § 922(d) conviction under § 3D1.2
of the Guidelines. McCoy offers no precedent establishing that § 2K2.1(a)(4)(B)
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requires that the large capacity firearm be the same firearm as the one that forms
the basis for the § 922(d) conviction.
V.
Section 2K2.1(b)(1)(A) of the Guidelines provides that the base offense
level is increased by two levels if the offense involved three to seven firearms.
U.S.S.G. § 2K2.1(b)(1)(A). As noted above, relevant conduct includes not only
the offense of conviction, but “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by the defendant
. . . during the commission of the offense of conviction . . . .” Id.
§ 1B1.3(a)(1)(A). Where multiple counts are grouped, conduct includes acts and
omissions that were part of the same course of conduct or scheme as the offense of
conviction. Id. § 1B1.3(a)(2).
Here, we find no reversible error in the district court’s decision to apply a
two-level enhancement pursuant to § 2K2.1(b)(1)(A) for an offense involving
three to seven firearms. McCoy was convicted for the improper sale of three
different firearms, and he has cited no authority to support his viewpoint that these
firearms are not relevant to his convictions.
VI.
We review a defendant’s final sentence for reasonableness under an abuse
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of discretion standard. United States v. Rodriguez, 628 F.3d 1258, 1262 (11th Cir.
2010). As we explained in United States v. Saac, 632 F.3d 1203, 1212 (11th Cir.
2011), this is a two-step analysis. First, we ensure that the district court
committed “no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.
The § 3553(a) factors include: (1) the nature and circumstances of the
offense; (2) the history and characteristics of the defendant; and (3) the need for
the sentence imposed to reflect the seriousness of the offense, to promote respect
for the law, and to adequately deter criminal conduct. 18 U.S.C. § 3553(a). The
court, however, is not required to state on the record that it has explicitly
considered each of the factors or to discuss each factor. United States v. Scott,
426 F.3d 1324, 1329 (11th Cir. 2005).
Second, in reviewing a sentence for substantive reasonableness, we examine
the totality of the circumstances and determine whether the sentence achieves the
sentencing goals in 18 U.S.C. § 3553(a). Saac, 632 F.3d at 1214. The party
challenging the sentence bears the burden of demonstrating that the district court
abused its discretion by imposing an unreasonable sentence. United States v.
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Alfaro-Moncada, 607 F.3d 720, 735 (11th Cir. 2010).
Here, McCoy requested that the district court show leniency and impose a
sentence at the low-end of the guideline range. As discussed above, the court did
not err in calculating the Guideline range. The court expressly stated that it had
considered the trial proceedings, the statements of the parties, the Guidelines, and
the § 3553 factors. The court noted that McCoy’s plea of ignorance was
disingenuous and that the number of firearms purchased from McCoy’s shop that
ended up being used in crimes was “absolutely appalling.” Indeed, the high
volume of guns sold by McCoy that were later recovered from crime scenes was
the impetus for investigating McCoy. We discern no abuse of discretion in the
district court’s sentence.
AFFIRMED.1
1
McCoy’s request for oral argument is DENIED.
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