Case: 12-10990   Date Filed: 11/15/2013   Page: 1 of 56


                                                        [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 12-10990
                     ________________________

                D.C. Docket No. 1:10-cr-20410-JAL-11



UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee,


                                versus


ARTRELL TERRANCE GRAY,
a.k.a. Trelly,
JONATHAN GIOVANNI MORLEY,
a.k.a. Yoshi,
TREMAINE EDWARD KALE,
a.k.a. Main,
DEXTER EARL KEMP,
a.k.a. Boss,
a.k.a. Dex,
RAHMIN J. JEFFERSON,
a.k.a. “LT”,
SAHEED RASHEED THOMPSON,
a.k.a. Barney,
a.k.a. Bob,
ANTWAN ROSHAX GRAY,
a.k.a. Sugie,

                                                    Defendants - Appellants.
             Case: 12-10990     Date Filed: 11/15/2013   Page: 2 of 56




                          ________________________

                                No. 12-11856
                          ________________________

                     D.C. Docket No. 1:10-cr-20410-JAL-14



UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,


                                      versus


SHAHEED RASHARD THOMPSON,
a.k.a. Heed,

                                                          Defendant - Appellant.

                          ________________________

                  Appeals from the United States District Court
                      for the Southern District of Florida
                         ________________________

                               (November 15, 2013)

Before CARNES, Chief Judge, WILSON and FAY, Circuit Judges.

PER CURIAM:

      In this consolidated appeal, eight defendants challenge their convictions and

sentences for drug, firearm, and identity-theft crimes. We affirm.




                                         2
             Case: 12-10990     Date Filed: 11/15/2013     Page: 3 of 56


                               I.   BACKGROUND

A. The Drug Conspiracy

      This case arose from local investigations by the Miami Gardens Police

Department (“MGPD”) into sales of crack cocaine, cocaine, marijuana, and

MDMA/Ecstasy. In early 2009, MGPD detectives met with Federal Bureau of

Investigation (“FBI”) Agents Lionel Lofton and Daniel Gaitan to enlist their

assistance in investigating drug sales. The FBI used a confidential informant

(“CI”) to arrange drug purchases.

      On May 11, 2009, the CI called defendant Shaheed Rashard Thompson

(“Rashard Thompson”) and asked to buy 7 grams of cocaine for $200. On May 20,

2009, the CI, wearing a body wire and under police surveillance, was told by

Rashard Thompson to purchase 7 grams of cocaine from defendant Antwan

Roshax Gray (“Antwan Gray”). The CI then arranged to purchase another 7 grams

from Antwan Gray on May 27, 2009, when the CI wore a recorder and a hidden

camera. On June 10, 2009, the CI arranged to purchase 21 grams of cocaine for

$600 from Antwan Gray, but received a bag of “cut,” consisting of lidocaine and

caffeine, which is not cocaine. When the CI refused to confront Antwan Gray

about the faux cocaine, the FBI terminated his services.

      Based on the information given by the CI and his drug purchases from

Antwan Gray, the use of surveillance, pole cameras, pen registers, and other


                                         3
                Case: 12-10990        Date Filed: 11/15/2013        Page: 4 of 56


investigative methods, the FBI obtained a court order authorizing the wire intercept

of Antwan Gray’s mobile phone. The wire intercept commenced on August 28,

2009, and was extended for an additional thirty days until October 24, 2009. On

October 23, 2009, the officers commenced another thirty-day, court-authorized

intercept of Antwan Gray’s other mobile phone. Approximately 8,000 mobile and

“walkie-talkie” calls were recorded; FBI Agent Lofton listened to all of them.

Agent Lofton qualified as an expert in deciphering the coded language used in the

calls; he identified some of the drugs based on prices and interpreted words and

phrases. FBI Agent Gaitan also listened to the calls and transcribed those calls

admitted into evidence at trial. These wire intercepts recorded conversations

between Antwan Gray and all of the defendants, with the exception of defendant

Rahmin J. Jefferson, and consisted of discussions of drugs deals, sources, and

deliveries.

       On November 9, 2010, a federal grand jury returned a forty-six-count,

superseding indictment against the eight appellants. 1 Following unsuccessful pre-



       1
          The counts at issue on appeal are: Count 1, conspiracy to possess with intent to
distribute 50 or more grams of crack cocaine, 500 or more grams of cocaine, 50 or more
kilograms of marijuana, and a detectable amount of Ecstasy/MDMA, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(iii), (b)(1)(B)(ii), (b)(1)(C), 846 (all defendants); Count 5, possession of
a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1) (Jefferson); Count 8,
possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. §
924(c)(1)(A)(i) (Antwan Gray, Artrell Terrance Gray (“Artrell Gray”), Tremaine Edward Kale,
Dexter Earl Kemp, Saheed Rasheed Thompson (“Rasheed Thompson”), and Jefferson); and
Count 13, possession with intent to use unlawfully and transfer unlawfully 5 or more
                                                  4
               Case: 12-10990        Date Filed: 11/15/2013      Page: 5 of 56


trial motions, the case proceeded to trial. The trial lasted six weeks; all defendants

were convicted.

B. Trial Evidence

       The government’s evidence consisted primarily of the wiretapped recordings

and testimony of police officers, federal agents, and cooperating co-defendants,

who had pled guilty. Regarding the individual appellants, the government

presented the following evidence.

1. Antwan Gray

       One hundred and three recorded calls were admitted into evidence, where

Antwan Gray and various individuals, including all appellants except Jefferson,

discussed drug deals, sources, and deliveries. Jerome McMillian, a co-defendant

who pled guilty, testified Antwan Gray had supplied marijuana, cocaine, and

MDMA to him from May 2009 to June 2010. McMillian had many conversations

with Antwan Gray concerning drug sales and had watched him package drugs.

McMillian estimated that, in 2008 and 2009, Antwan Gray sold at least an ounce of

cocaine, a half-pound of marijuana, and 50 to 100 MDMA pills every week or two

weeks from various locations. In 2009, Antwan Gray told McMillian that he and




identification documents and false identity documents, in violation of 18 U.S.C. §§ 1028(a)(3)
and 2 (Jonathan Giovanni Morley).

                                               5
               Case: 12-10990      Date Filed: 11/15/2013      Page: 6 of 56


Artrell Terrance Gray (“Artrell Gray”) were living at “the four,” 2 and McMillian

observed drugs being packaged and sold there. When McMillian could not fill

drug orders, he referred customers to Antwan Gray, Rashard Thompson, Kemp,

and Kale.

       Sherline Richard, Antwan Gray’s former girlfriend and co-defendant,

testified concerning the drug-dealing activities. Richard lived with Antwan Gray

in North Miami Beach with Morley and Sonia Charles (Morley’s then-girlfriend),

and knew Antwan Gray sold marijuana, cocaine, and MDMA. Richard assisted

Antwan Gray by allowing him to use her Lexus for drug deals or by driving him

herself. She picked up and kept some of Antwan Gray’s larger drug purchases,

took calls, and delivered drugs for him. Richard estimated Antwan Gray sold at

least $400 to $500 of marijuana, cocaine, and MDMA each week. She also

frequently went with Antwan Gray to purchase “cut.”

       From September 2009 to March 2010, Sherline Richard and Sonia Charles

hired a local gang to break into cars at school parking lots, where they stole purses

and briefcases in order to obtain identification documents, checks, and credit cards.

Antwan Gray stored the documents used in the identity-theft scheme operated at

“the four” and delivered identification documents to Richard. Antwan Gray went
       2
         “The four” was the home where brothers Antwan and Artrell Gray lived at 

Street in Miami Gardens. It was one of the processing locations for the drug sales.
Sherline Richard, Antwan Gray’s then-girlfriend, testified “the four” was where drugs were
packaged, sold, and stored, and Antwan Gray kept his guns there.

                                              6
              Case: 12-10990     Date Filed: 11/15/2013   Page: 7 of 56


with Richard to stores and banks, where he addressed her by the name on a

victim’s check in order to buttress her use of the victim’s identification documents.

Antwan Gray also used victims’ credit cards to buy gas.

      In November 2009, the police searched Antwan Gray’s home and found a

loaded gun containing a .357 caliber magazine, fifteen rounds of Winchester .357

ammunition, and a pair of men’s shorts with baggies of cocaine in his bedroom.

The police also located numerous identification documents, checks, deposit slips,

driver’s licenses, and notebooks with personal identification information for eleven

victims. When Antwan Gray was arrested on June 3, 2010, the officers found a

shoe box containing $1,589 in cash in the bedroom closet and 482.1 grams of

marijuana under the driver’s seat in his car.

2. Artrell Gray

      Artrell Gray was intercepted discussing drug deals through the wiretaps.

There were thirteen recorded calls, including calls in which Artrell and Antwan

Gray discussed drugs. Former co-defendants Sherline Richard and McMillian

testified Artrell Gray was involved in the distributions of drugs with his brother

Antwan Gray. In 2009, Antwan Gray told McMillian that he and Artrell Gray

were living at “the four,” and McMillian observed drugs being packaged and sold

there. Richard testified Artrell Gray sold marijuana and cocaine with Antwan




                                          7
              Case: 12-10990     Date Filed: 11/15/2013    Page: 8 of 56


Gray, and, in November 2009, handguns and two AK-47s were moved to Artrell

Gray’s house.

      On November 17, 2009, officers executed a search warrant for “the four.”

Artrell Gray told the officers no narcotics or guns were there, but, if guns or drugs

were found, they belonged to him. The officers found a marijuana grinder, a brick

of sham marijuana, plastic baggies of various sizes, a heat sealer, scissors, a digital

scale, a plate, and a spoon. They also found a gun loaded with three bullets, nine

rounds of Winchester ammunition, and a backpack containing a digital scale, a

hammer, measuring spoons and other utensils. Green baggies filled with a total of

25.5 grams of cocaine were found in a closet, and marijuana was found under a

mattress. In Artrell Gray’s bedroom, the officers located a press and metal plates

used to compress marijuana, as well as Artrell’s driver’s license.

3. Jonathan Morley

      At trial, FBI Agent Lofton testified there were several recorded calls in

which Morley had discussions involving drug transactions. Morley used Antwan

Gray’s mobile phone to tell customers he was running the business while Antwan

Gray was on a cruise. Morley told customers he would deliver their orders for

cocaine and high-grade marijuana in a gray Lexus. During a search of Morley’s

residence on November 18, 2009, officers found a bag of marijuana, a yellow




                                           8
              Case: 12-10990    Date Filed: 11/15/2013   Page: 9 of 56


plastic bag containing baggies, three scales, three bags of cocaine, and

identification and other documents in the names of five identity-theft victims.

      Sherline Richard testified she had observed Morley in drug interactions,

receiving phone calls about drug dealing, and delivering marijuana and cocaine to

customers. She also had seen drugs in Morley’s apartment. Morley was involved

in the identity-theft scheme with Sonia Charles and Richard. On one occasion,

Charles broke a car window and grabbed a purse from the front seat; Morley drove

her away. Morley also drove Richard and Charles to a bank and watched outside

for police while they used stolen identity documents. Morley additionally called

Bank of America and impersonated a male identity-theft victim.

4. Tremaine Kale

      The evidence against Kale included testimony from FBI Agent Lofton

regarding phone calls in which Antwan Gray and Kale discussed marijuana, digital

scales, and MDMA. Some of the conversations concerned one pound of

marijuana, an unspecified amount of MDMA, 7 grams of cocaine, and an

unspecified amount of marijuana.

      Former co-defendant McMillian testified that when he could not fill drug

orders, he referred customers to Kale. McMillian also testified Kale sold

marijuana, cocaine, and MDMA from his residence. In addition, Kale told

McMillian that Agent Lofton failed to find a ziplock bag of crack cocaine hidden


                                          9
             Case: 12-10990     Date Filed: 11/15/2013    Page: 10 of 56


in a space behind his car stereo during a search of Kale’s car. McMillian testified

he had observed Kale in Miami Gardens with a gun. Sherline Richard testified she

had seen Antwan Gray purchase cocaine from Kale two or three times, heard them

discuss cocaine on the phone, and had observed Kale showing Antwan Gray a gun

in his waistband. Richard also noticed a gun resting on the wall in the yard where

Kale lived and sold drugs.

      On October 6, 2009, detectives found two empty ziplock bags, a ziplock bag

with less than 28 grams of cocaine, a shotgun shell, and a 9-millimeter bullet in

Kale’s car. On November 17, 2009, during a search of Kale’s home, agents

recovered digital scales, two small bags of cocaine, one small bag of crack cocaine,

and shotgun shells. A search of Kale’s vehicle on December 16, 2009, revealed a

bag of marijuana on the front seat, a 12-gauge Winchester shotgun shell, and one

20-gauge Winchester shotgun shell on the driver’s floorboard. A MGPD detective

found 48.1 grams of marijuana in Kale’s waistband during a pat-down search on

June 1, 2010.

      Kale testified at trial and denied ever selling drugs for any of his co-

defendants, or ever selling drugs after 2006. He stated the drugs found in his car

and home were for personal use. He testified he had scales so he could weigh

drugs for his use, and he used small plastic bags for travel-size amounts. Kale

admitted buying five bags of marijuana, and one ounce of marijuana for personal


                                          10
               Case: 12-10990      Date Filed: 11/15/2013       Page: 11 of 56


use. He identified his voice on a recorded call concerning 7 grams of cocaine.

Kale testified that, during the 3 to 4 years prior to his 2006 conviction for

possession and distribution of marijuana, he sold one pound of marijuana each

month and carried guns for protection.

5. Dexter Kemp

       FBI Agent Lofton testified Kemp was heard discussing drug dealing with

Antwan Gray in the wiretapped calls. He was heard discussing marijuana,

negotiating the purchase of it, and asking Antwan Gray to deliver drugs to a third

party. Former co-defendant McMillian, who received drugs from Kemp from 2009

to 2010, testified that when he could not fill drug orders, he referred customers to

Kemp. Sherline Richard testified Antwan Gray and Kemp met two or three times

each week and supplied each other with MDMA. Richard also observed Kemp

carrying a semiautomatic gun equipped with a laser beam.

       Several searches produced evidence used against Kemp during trial. On

September 30, 2009, detectives observed Kemp’s car departing from the house of a

co-conspirator who later pled guilty; they stopped the vehicle because of

excessively tinted windows. Kemp consented to a search and the detectives found

MDMA pills and marijuana in the compartment behind the door handle. 3 On


       3
         Following his arrest, Kemp called Antwan Gray from the back seat of the officers’
vehicle and warned him to be careful because he had just been arrested with drugs.

                                              11
                  Case: 12-10990      Date Filed: 11/15/2013      Page: 12 of 56


November 18, 2009, while a search was occurring at Morley’s home, officers again

stopped Kemp for the excessively dark-tinted windows of his car. A drug dog

alerted to marijuana in the trunk. A box containing 8 rounds of 9-millimeter

cartridges was located in the compartment on the back of the front passenger’s

seat.

        On March 23, 2010, FBI Agent Lofton and other FBI agents went to another

house on the street of “the four” to locate Kemp. During a protective sweep of the

house, the officers observed marijuana residue in an open bag, a small digital scale,

a metal sifter, and a bottle of prescription pills on the bedside table. The officers

also found 48 baggies of marijuana hidden behind the television in Kemp’s

bedroom, a photograph of a birthday cake for Kemp labeled “Boss,” and a button

stating “MGT, BOSS” (referring to rap group “Myrtle Grove Taliban”). 4 R45 at

205, 207-09. In Kemp’s closet the officers located a gun holster and a gun box for

a Ruger 9-millimeter gun containing an empty magazine and magazine holder, the

same caliber as ammunition found in Kemp’s car on November 18, 2009. After

waiving his Miranda rights,5 Kemp explained he had bought ammunition at a gun

store in Hialeah, Florida, that did not conduct criminal background checks; the




        4
            Myrtle Grove was the area of Miami Gardens where the defendants sold drugs.
        5
            Miranda v. Arizona, 

, 

(1966).

                                                 12
                Case: 12-10990       Date Filed: 11/15/2013     Page: 13 of 56


officers showed him the box for the Ruger 9-millimeter gun found in his bedroom,

but Kemp insisted he no longer had it.

6. Rahmin Jefferson

      On September 16, 2009, while observing defendant Rashard Thompson’s

home, detectives followed a Mustang as it drove away from the house and stopped

it after it failed to stop at four stop signs. Jefferson nervously exited the car. When

told the detectives had summoned a drug dog, Jefferson responded the dog might

react to incense. He pulled out a plastic bag containing white powder, a digital

scale, and batteries, explaining, “It’s not real dope. I sell it as dope.” 6 R37 at 137.

A MGPD detective observed a loaded gun equipped with a magazine containing

thirteen rounds of ammunition under the driver’s seat. When Jefferson was seated

in the police vehicle and was told the gun had been found, Jefferson said, “That’s

why I didn’t want you to search the vehicle.” R37 at 238. The officers also seized

$1,211 in cash and papers listing several of his co-defendants, including Morley

and Antwan Gray, their Social Security numbers, and a routing number for a Bank

of America account.

      Jefferson testified he had never sold any drugs to his co-defendants or

bought drugs from them. He did admit he had been convicted for selling drugs in

the past. He described his arrest on September 16, 2009, as occurring one

      6
          The lab analysis confirmed that it was not cocaine.

                                                13
             Case: 12-10990      Date Filed: 11/15/2013   Page: 14 of 56


afternoon as he arrived at his house. He said the Mustang he was driving was his

girlfriend’s rental car. Officers stopped him and told him to roll down the car

windows. When they looked inside, they said he should tell them about anything

he had in the car prior to the arrival of a K-9 officer. Jefferson told the police he

had some incense in the car and gave them the bag. He removed cash from his

pockets. While searching the car, officers found a gun on the driver’s side.

Jefferson said it was not his gun; he had borrowed the car from someone else.

7. Rashard Thompson

      Trial evidence against Rashard Thompson included: (1) the evidence

produced as a result of the CI’s involvement; (2) FBI Agent Lofton’s testimony

regarding the wiretapped phone calls in which Rashard Thompson discussed drug

dealing with Antwan Gray and recorded phone calls admitted into evidence; and

(3) former co-defendant McMillian’s testimony that he referred customers to

Rashard Thompson, that McMillian bought five pounds of marijuana from Rashard

Thompson, and that Rashard Thompson sold marijuana, cocaine, and crack

cocaine. Sherline Richard testified she had observed Rashard Thompson buy

marijuana from Antwan Gray and had heard them discuss drug deals. Following

Rashard Thompson’s arrest on June 3, 2010, and his wife’s consent to search his

home, officers found two digital scales and ziplock baggies in a dresser drawer,




                                          14
             Case: 12-10990    Date Filed: 11/15/2013   Page: 15 of 56


along with numerous glass beakers, baking soda, and an elongated coat hanger

used for manufacturing crack cocaine in the kitchen cupboard.

8. Saheed Rasheed Thompson (“Rasheed Thompson”)

      FBI Agent Lofton testified regarding the recorded calls between Antwan

Gray and Rasheed Thompson, in which they had discussed drug deals. In addition,

former co-defendant McMillian testified that between 2009 and 2010, Rasheed

Thompson sold drugs and McMillian bought 300 MDMA pills from him while

working with him to supply crack cocaine to their customers. In one recorded

conversation with Antwan Gray, McMillian discussed failed efforts of Rasheed

Thompson’s partner to convert 14 grams of cocaine into crack cocaine. McMillian

had arranged for his cousin to do the “cooking,” which produced a 12-ounce crack

“cookie” that McMillian and Rasheed Thompson delivered to Rasheed’s partner.

R32 at 231-34. Sherline Richard testified she had observed Antwan Gray buying

marijuana from Rasheed Thompson several times and had heard them talk on the

phone about drug deals.

      On May 11, 2010, detectives stopped Rasheed Thompson in a red Camry

because it had been reported stolen. Rasheed Thompson and the driver, his

girlfriend, were arrested. One of the detectives found a Ruger 9-millimeter gun

with 9 rounds in the magazine in the center console.




                                        15
              Case: 12-10990       Date Filed: 11/15/2013      Page: 16 of 56


C. Motions and Convictions

       All of the defendants moved for judgments of acquittal at the end of the

government’s case and at the conclusion of all the evidence, which were denied.

Of the counts challenged on appeal, all defendants, with the exception of Jefferson,

were convicted of conspiracy to possess with intent to distribute controlled

substances (Count 1); Jefferson was convicted of possession of a firearm by a

convicted felon (Count 5); Artrell and Antwan Gray, Rasheed Thompson, Kemp,

and Kale were convicted of possession of a firearm in furtherance of a drug-

trafficking crime (Count 8); and Morley was convicted of the transfer of false

identity documents (Count 13).

       Kale moved for judgment of acquittal notwithstanding the verdict on Count

8; Rasheed Thompson and Kemp filed unopposed motions to join. The motion for

judgment of acquittal was denied. All defendants were sentenced to substantial

imprisonment terms. 7 On appeal, the defendants challenge the denial of their

motions to suppress; the admission of evidence under Federal Rule of Evidence

404(b); the sufficiency of the evidence regarding Counts 1, 5, 8, and 13; jury

instructions; the denial of motions to sever; and various sentencing issues. 8


       7
         The convicted defendants received the following imprisonment sentences: Antwan
Gray, 444 months; Artrell Gray, 157 months; Morley, 276 months; Kale and Kemp, 420 months;
Jefferson, 87 months; Rashard Thompson, 252 months; and Rasheed Thompson, 181 months.
       8
         We find that the defendants’ remaining arguments on appeal are meritless and do not
warrant further discussion, because: (1) they failed to raise an inference of purposeful
                                              16
               Case: 12-10990         Date Filed: 11/15/2013       Page: 17 of 56


                                      II.    DISCUSSION

A. Denial of Suppression Motions

       Several of the convicted defendants challenge the district court’s denial of

various motions to suppress. We review a district court’s factual findings in

denying a suppression motion for clear error and the application of law to those

facts de novo. United States v. Lewis, 

, 1302-03 (11th Cir. 2012).

When considering a ruling on a motion to suppress, “all facts are construed in the

light most favorable to the prevailing party below”; “we afford substantial

deference to the factfinder’s credibility determinations, both explicit and implicit.”

(citations and internal quotation marks omitted). We may affirm the

denial of a motion to suppress on any ground supported by the record. United

States v. Caraballo, 

, 1222 (11th Cir. 2010).




discrimination to establish a claim pursuant to Batson v. Kentucky, 

, 

(1986); (2) the district court did not abuse its discretion in admitting the summary calculations
and chart, since the summaries were based on an interpretation of the recorded conversations
admitted into evidence, recordings not admitted but provided to the defendants prior to trial,
narcotics seized and admitted into evidence, and FBI Agent Lofton’s expert testimony; (3) the
government’s opening and closing statements, even if improper, did not prejudicially affect the
substantial rights of the defendants; (4) the district court did not err in denying Morley’s request
for a limiting instruction since, as discussed subsequently in Section II.E., Severance Motions,
the firearms evidence was relevant, and any error was harmless in light of the overwhelming
evidence of his guilt; and (5) the district court did not abuse its discretion in giving the jury a
trial transcript during deliberations.

                                                 17
               Case: 12-10990        Date Filed: 11/15/2013        Page: 18 of 56


1. Wiretap Evidence

       Antwan Gray, Rashard Thompson, and Morley contend the district court

erred by denying their motions to suppress wiretap evidence because the

government’s affidavit not only failed to show necessity for the wire intercept but

also contained material omissions and misrepresentations of facts. They argue the

omitted or misrepresented facts abrogated the court’s findings of probable cause

and necessity, which required a hearing under Franks v. Delaware, 

,

(1978). They further allege FBI Agent Lofton’s wiretap affidavit

failed to give the reasons for the CI’s termination and concealed his unreliability. 9

       An application for an order authorizing a wiretap must include “a full and

complete statement as to whether or not other investigative procedures have been

tried and failed or why they reasonably appear to be unlikely to succeed if tried or

to be too dangerous.” 18 U.S.C. § 2518(1)(c). The affidavit need not show a

“comprehensive exhaustion of all possible techniques.” United States v. Van

Horn, 

, 1496 (11th Cir. 1986). Section 2518 was not intended “to

foreclose electronic surveillance until every other imaginable method of


       9
          Antwan Gray additionally challenges the wiretap affidavit because it failed to disclose
that the officers “lost contact” with the CI during the drug purchases. Because he did not raise
this issue in the district court, we review for plain error. See United States v. Young, 

, 1305 (11th Cir. 2003). Any error in the failure to disclose this fact in the affidavit did not
affect substantial rights, because (1) the CI wore a body wire and recorder at every meeting, and
(2) the affidavit explained the officers had to park a certain distance from the controlled purchase
sites.

                                                18
             Case: 12-10990    Date Filed: 11/15/2013    Page: 19 of 56


investigation has been unsuccessfully attempted, but simply to inform the issuing

judge of the difficulties involved in the use of conventional techniques.” United

States v. Alonso, 

, 868 (11th Cir. 1984) (quoting United States v.

Hyde, 

, 867 (5th Cir. 1978)). The statute “does require the

Government to show why alternative measures are inadequate for this particular

investigation.” United States v. Perez, 

, 581 (11th Cir. 2011) (per

curiam) (citation and internal quotation marks omitted). A wiretap may be

necessary when needed to determine the scope of the conspiracy and all of its

members. See United States v. De La Cruz Suarez, 

, 1214 (11th Cir.

2010).

      The district court found the government employed extensive surveillance

and pole-camera monitoring, used pen registers, and made controlled purchases

prior to applying for a wiretap, but those methods had inherent limitations. Drive-

by surveillance was compromised by the presence of an official vehicle in the

neighborhood, and the pole camera was limited by natural obstructions, including

shrubby and weather. Significantly, physical surveillance would not show what

was occurring inside the home, the full scope of the conspiracy, or lead to the

identification of all co-conspirators. See De La Cruz 

.

The district court properly determined the government established necessity.




                                         19
             Case: 12-10990     Date Filed: 11/15/2013   Page: 20 of 56


      Entitlement to a Franks hearing requires a defendant to make a “substantial

preliminary showing” establishing (1) the affiant deliberately or recklessly

included a false statement, or failed to include material information, in the warrant

affidavit; and (2) the allegedly false statement or omission was necessary to the

finding of probable cause. 

, 98 S. Ct. at 2676.

“Allegations of negligence or innocent mistake are insufficient.” 

98 S.

Ct. at 2684. The defendant’s attack must be “more than conclusory,” 

intentional or reckless omissions will invalidate a warrant only if inclusion

of the omitted facts would have prevented a finding of probable cause,” Madiwale

v. Savaiko, 

, 1327 (11th Cir. 1997).

      In their initial motions to suppress, Antwan Gray, Rashard Thompson, and

Morley failed to make a substantial preliminary showing that FBI Agent Lofton

intentionally or recklessly omitted any facts in his affidavit. As the magistrate

judge and the district court concluded, a Franks hearing was not warranted because

the defendants’ contentions were purely conclusory, and they failed to offer proof

showing the affiant had the requisite intent. See 

, 98 S. Ct.

at 2684.

      During trial, Rashard Thompson renewed his motion to suppress the wiretap

evidence. He argued the government concealed the CI’s unreliability by omitting

the fact, revealed during FBI Agent Gaitan’s trial testimony, that the FBI


                                          20
             Case: 12-10990     Date Filed: 11/15/2013    Page: 21 of 56


terminated the CI’s services because he refused to confront Antwan Gray about

receiving “cut” and the video of the second controlled purchase showed the CI

almost inhaling cocaine. While the affidavit did not state these facts, the affidavit

did state the CI was not able to deal directly with most of the drug organization and

did not have the trust or knowledge of its members. The district court correctly

determined the absence of the information concerning the failure of the CI to

follow instructions did not affect the probable cause established by the supporting

affidavit. See 

.

2. Residence Searches

      Artrell Gray contends the district court erred by not suppressing evidence

obtained from the search of his residence, because the government’s application

for a warrant was based on a knowingly false affidavit, and the motion to suppress

was denied without a Franks hearing. He argues the statement in the affidavit that

gang members were seen at his residence was false because a video showed the

individuals were gathered near the location, not at or in front of his house. He also

states the affidavit was misleading because it suggested something untoward was

happening at his residence, when detectives had stopped at the scene and could

observe the filming of a music video in progress. The district court found,

however, that Artrell Gray failed to proffer evidence showing FBI Agent Lofton

knew the information was false or misleading. See 

, 98 S.


                                          21
             Case: 12-10990     Date Filed: 11/15/2013   Page: 22 of 56


Ct. at 2684 (“There must be allegations of deliberate falsehood or of reckless

disregard for the truth, and those allegations must be accompanied by an offer of

proof.”). From our review of the record, we conclude this finding was not clearly

erroneous. See United States v. Jenkins, 

, 1079-80 (11th Cir. 1990).

      Moreover, the remaining averments in the affidavit were sufficient to

provide probable cause for the search of the residence. While Artrell Gray argues

the wire intercepts referenced in the affidavit were “stale” and could not establish

probable cause for the search, this argument has no merit since the affidavit

referred to wire intercepts as well as information provided by a drug purchaser

only ten days prior. See United States v. Jiminez, 

, 1249 (11th Cir.

2000) (“[E]ven assuming that [the information] was stale, such information is not

fatal where the government’s affidavit updates, substantiates, or corroborates the

stale material.” (citations and internal quotation marks omitted)).

      Rashard Thompson argues the warrantless search of his home on June 3,

2010, violated his right to privacy, because his wife’s consent to the search was not

knowing and voluntary, there were no exigent circumstances, and it was not

incident to arrest. A warrantless search of property is valid under the Fourth

Amendment if it is preceded by a defendant’s voluntary consent or the consent of a

third party who has “common authority over or other sufficient relationship to the

premises . . . sought to be inspected.” United States v. Harris, 

,


                                          22
             Case: 12-10990     Date Filed: 11/15/2013    Page: 23 of 56


1339 (11th Cir. 2008) (per curiam) (citation and internal quotation marks omitted).

Because the voluntariness of consent is a question of fact, we will disturb the

district court’s finding on that issue only if it was clearly erroneous. United States

v. Zapata, 

, 1240-41 (11th Cir. 1999).

      Rashard Thompson argues his wife’s consent to the search was not knowing

and voluntary, since she acquiesced to official authority because of fear and the

tense situation. Resolution of this claim turns on the credibility of the opposing

witnesses at the suppression hearing. The magistrate judge found credible the

officer’s testimony that he advised Rashard Thompson’s wife of her rights prior to

executing the consent form, including her right not to consent to the search. The

magistrate judge also found the officers interacting with Rashard Thompson’s wife

did not have their weapons drawn, and the record does not indicate she was

coerced into executing the consent form. There was sufficient evidence to find that

Rashard Thompson’s wife freely and voluntarily executed the consent-to-search

form. Therefore, the officers obtained evidence pursuant to a valid consent to

search.

3. Firearm and Ammunition Seizure

      Jefferson argues the district court erred in denying his motion to suppress the

gun and ammunition seized during the search of his Mustang on September 16,

2009. He contends the officers lacked probable cause for the initial stop, the


                                          23
              Case: 12-10990     Date Filed: 11/15/2013     Page: 24 of 56


search of the car, and his arrest. A traffic stop is valid “if it is either based upon

probable cause to believe a traffic violation has occurred or justified by reasonable

suspicion in accordance with Terry.” 

(referring to Terry

v. Ohio, 

, 

(1968)). The officers observed Jefferson

committing various moving violations, including driving through stop signs.

Therefore, the district court properly found Jefferson’s initial traffic stop was

lawful. See Whren v. United States, 

, 812, 

, 1773-74

(1996).

      “[A]n officer’s investigation of a traffic stop must be ‘reasonably related in

scope to the circumstances which justified the interference in the first place.’”

United States v. Boyce, 

, 1106 (11th Cir. 2003) (quoting 

, 88 S. Ct. at 1879). Unless there is an articulable suspicion of other

illegal activity, the stop cannot last longer than necessary to process the traffic

violation. 

States v. Purcell, 

, 1277 (11th Cir.

2001)). “Reasonableness is measured by examining the totality of the

circumstances.” 

.

      After being stopped, Jefferson appeared nervous when he exited the

Mustang. The officers advised him that, because of his nervous behavior, a K-9

unit had been called. While waiting for the K-9 unit, Jefferson voluntarily

produced a bag containing a white powder which he indicated he sold as cocaine.


                                           24
             Case: 12-10990      Date Filed: 11/15/2013    Page: 25 of 56


The drug-detection dog arrived “within a minute” of Jefferson’s stop; shortly

thereafter, the dog alerted to the bag that field-tested positive for cocaine and to the

passenger compartment of the vehicle wherein the officers found a gun. R4-796 at

5. As the district court found, “[g]iven the short time that elapsed between the stop

and K-9 search, in addition to Jefferson’s exiting the vehicle and seeming

nervousness, . . . the K-9 search was not unreasonable in time or scope.” R4-796 at

5; see also 

(concluding a 14-minute time period

between the initial traffic stop and the driver’s consent to search his car was

reasonable). Because the officers had probable cause to stop Jefferson and his

detention was not unconstitutionally prolonged, the evidence found following the

K-9 search did not violate his Fourth Amendment rights.

      The Supreme Court has clarified the search-incident-to-arrest exception to

the Fourth Amendment’s warrant requirement. Arizona v. Gant, 

, 

(2009). In Gant, the Supreme Court held “[p]olice may search a

vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching

distance of the passenger compartment at the time of the search or it is reasonable

to believe the vehicle contains evidence of the offense of arrest.” 

129 S.

Ct. at 1723. Because Jefferson was arrested near the car he was driving, and he

was not fleeing the scene or a sufficient distance away from his vehicle, the

officer’s search of his car was a lawful search incident to arrest. In addition, since


                                           25
             Case: 12-10990     Date Filed: 11/15/2013   Page: 26 of 56


an MGPD detective had probable cause to arrest Jefferson for possession of

cocaine, the search of the vehicle was also permissible because it reasonably could

have yielded further evidence of drug crimes.

B. Admission of Gun Evidence Under Federal Rule of Evidence 404(b)

      Rasheed Thompson argues the district court erred in admitting the testimony

of MGPD Detective Velez regarding the gun discovered in a search of his

girlfriend’s rented car on May 11, 2010, because there was insufficient proof he

possessed it. Admission of evidence pursuant to Federal Rule of Evidence 404(b)

is reviewed for abuse of discretion. United States v. Thomas, 

, 1031

(11th Cir. 2001). “[W]hen employing an abuse-of-discretion standard, we must

affirm unless we find that the district court has made a clear error of judgment, or

has applied the wrong legal standard.” United States v. Frazier, 

,

1259 (11th Cir. 2005) (en banc).

      Federal Rule of Evidence 404(b) forbids the admission of any evidence of

prior bad acts “to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Fed. R. Evid.

404(b)(1). That evidence, however, may be admitted for some other purpose,

“such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). The

test regarding the admissibility of prior acts evidence provides:


                                         26
             Case: 12-10990     Date Filed: 11/15/2013   Page: 27 of 56


      First, the evidence must be relevant to an issue other than the
      defendant’s character; Second, the act must be established by
      sufficient proof to permit a jury finding that the defendant committed
      the extrinsic act; Third, the probative value of the evidence must not
      be substantially outweighed by its undue prejudice, and the evidence
      must meet the other requirements of [Federal Rule of Evidence] 403.

United States v. Matthews, 

, 1310-11 (11th Cir. 2005) (per curiam)

(quoting United States v. Delgado, 

, 1365 (11th Cir. 1995)). In every

conspiracy case, “a not guilty plea renders the defendant’s intent a material issue,”

unless the defendant affirmatively makes it a non-issue. 

(citation and

internal quotation marks omitted). Additionally, “the principles governing what is

commonly referred to as other crimes evidence are the same whether the conduct

occurs before or after the offense charged, and regardless of whether the activity

might give rise to criminal liability.” 

(footnote omitted).

      Regarding the first prong of the Rule 404(b) test, the evidence was relevant

to an issue other than Rasheed Thompson’s character, because he pled not guilty to

the conspiracy offense. The district court recognized that this court has “note[d]

that guns are tools of the trade in drug trafficking and that guns and violence go

hand in hand with illegal drug operations.” R37 at 56 (citing United States v.

Lopez, 

, 1242 (11th Cir. 2011); United States v. Nixon, 

, 904 (11th Cir. 1990)). The court found the evidence of the gun was relevant




                                         27
               Case: 12-10990       Date Filed: 11/15/2013      Page: 28 of 56


to Count 1 and, on a Pinkerton theory, 10 relevant to Count 8 regarding the

possession of a gun in furtherance of a drug-trafficking crime. The fact that

Rasheed Thompson was arrested and a gun was found in his constructive

possession was proof of both his intent to participate in the drug conspiracy and his

knowledge that guns would be involved in the actions committed in furtherance of

the conspiracy.

       Concerning the second prong, the government was required to introduce

“sufficient proof to enable a jury to find by a preponderance of the evidence that

[Rasheed Thompson] committed the act(s) in question.” See United States v.

Edouard, 

, 1344 (11th Cir. 2007). While Rasheed Thompson argues

he was not in actual possession of the gun, constructive possession was established

by the location of the gun in the center console, and the fact that the gun was found

in a stolen, rented vehicle his girlfriend was driving. There was evidence showing

the co-conspirators often used rented cars to transport drugs, and Rasheed

Thompson’s known connection to selling drugs. The jury reasonably could have

inferred he was carrying the gun as a form of protection, given the overwhelming

evidence he was involved with drug dealing.

       10
          Under Pinkerton v. United States, 

, 

(1946), “[e]ach party to
a continuing conspiracy may be vicariously liable for substantive criminal offenses committed by
a co-conspirator during the course and in the furtherance of the conspiracy, notwithstanding the
party’s non-participation in the offenses or lack of knowledge thereof,” as long as “the
substantive crime was a reasonably foreseeable consequence of the conspiracy.” United States v.
Mothersill, 

, 1218 (11th Cir. 1996) (citations and internal quotation marks omitted).

                                               28
             Case: 12-10990      Date Filed: 11/15/2013   Page: 29 of 56


      Under the third prong, a “court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of . . . unfair prejudice.”

Fed. R. Evid. 403. If the issue of the defendant’s knowledge or intent is

determinative, it is less likely that Rule 404(b) evidence demonstrating knowledge

or intent would be cumulative or prejudicial under Rule 403. United States v.

Gaskell, 

, 1063 (11th Cir. 1993). Rasheed Thompson argues the

minimal evidence against him showed he was not a part of the conspiracy. His

argument emphasizes that the evidence regarding possession of the gun was vital

in proving intent for Count 1 and his knowledge that a co-conspirator would carry

a gun in furtherance of a drug-trafficking crime. Under the applicable Rule 404(b)

test, the court did not abuse its discretion in permitting MGPD Detective Velez to

testify concerning the gun found in the rented car Rasheed Thompson’s girlfriend

was driving, and in which Rasheed Thompson was riding.

C. Sufficiency of the Evidence

      We review the sufficiency of the evidence to support a conviction de novo,

viewing the evidence in the light most favorable to the government, and drawing

all reasonable inferences and credibility choices in the government’s favor. United

States v. Bacon, 

, 775 (11th Cir. 2010) (per curiam). Evidence is

sufficient “so long as a reasonable trier of fact, choosing among reasonable

interpretations of the evidence, could find guilt beyond a reasonable doubt.”


                                          29
               Case: 12-10990       Date Filed: 11/15/2013       Page: 30 of 56


United States v. Pineiro, 

, 1367 (11th Cir. 2004). Where a defendant

moves for judgment of acquittal but fails to raise a specific ground to the district

court, we will reverse the conviction only where it is necessary to prevent “a

manifest miscarriage of justice.” United States v. Fries, 

, 1291 (11th

Cir. 2013).

1. Conspiracy to Possess with Intent to Distribute Controlled Substances (Count 1)

       Artrell Gray, Kale, and Kemp challenge the sufficiency of the evidence to

support their convictions for conspiracy to possess with intent to distribute

controlled substances. 11 To sustain a conviction for conspiracy to possess with

intent to distribute a controlled substance, the government must prove beyond a

reasonable doubt that (1) an illegal agreement to possess a controlled substance

with the intent to distribute existed; (2) the defendant knew of it; and (3) the

defendant knowingly and voluntarily joined it. 21 U.S.C. §§ 841(a)(1), 846;

United States v. Hernandez, 

, 1333 (11th Cir. 2005). The evidence

presented at trial against all of the defendants included two co-conspirators’

testimony, recorded conversations between the defendants, and testimony from


       11
           Rashard Thompson and Morley attempt to adopt their co-defendants’ sufficiency-of-
the-evidence arguments with regard to their convictions for conspiracy to possess with intent to
distribute a controlled substance. “Sufficiency arguments . . . are too individualized to be
generally adopted.” United States v. Cooper, 

, 1285 n.4 (11th Cir. 2000) (citation
and internal quotation marks omitted). Therefore, we will not consider any sufficiency
challenges to Count 1 by Rashard Thompson and Morley, because they did not raise this issue
properly on appeal. See 

12-10990     Date Filed: 11/15/2013   Page: 31 of 56


officers regarding evidence of narcotics obtained as a result of searches and

seizures.

      Kale contends that insufficient evidence supported his conspiracy

conviction, because the indictment charged a single narcotics distribution

conspiracy, but the evidence at trial proved a series of smaller conspiracies. “[T]o

prove a single, unified conspiracy as opposed to a series of smaller, uncoordinated

conspiracies, the government must show an interdependence among the alleged co-

conspirators.” United States v. Chandler, 

, 811 (11th Cir. 2004). To

determine whether a jury could reasonably have concluded that the evidence

established a single conspiracy, we consider (1) the existence of a common goal,

(2) the nature of the underlying scheme, and (3) the overlap of participants. United

States v. Huff, 

, 1243 (11th Cir. 2010). “While each defendant must

have joined the conspiracy intentionally, each need not be privy to all the details of

the conspiracy or be aware of all the other conspirators.” United States v. Dorsey,

, 1059 (11th Cir. 1987).

      The jury found the evidence showed the defendants shared a common goal,

the sale and distribution of drugs in Miami Gardens. The defendants, including

Kale, cooperated by supplying, distributing, and/or facilitating the scheme. When

former co-defendant McMillian could not fill an order for drugs, he referred

customers to Antwan Gray, Rashard Thompson, Kemp, or Kale. The defendants


                                          31
                Case: 12-10990        Date Filed: 11/15/2013         Page: 32 of 56


worked in concert to distribute narcotics, evidenced by the wiretapped

conversations. In these conversations, the defendants discussed packing and

repackaging cocaine, cutting, buying “cut,” sharing drugs, providing drugs to one

another, and owing money. The court specifically instructed the jury on single

versus multiple conspiracies, 12 “and the convictions of the defendants are implicit

findings that the evidence proved the existence of the single conspiracy alleged.”

United States v. Jones, 

, 1561 (11th Cir. 1990) (citation and internal

quotation marks omitted). Furthermore, Kale testified he never sold drugs for any

of his co-defendants and did not sell drugs after 2006. After hearing Kale’s

testimony and observing his demeanor, the jury could disbelieve Kale’s testimony

and could conclude the opposite of what Kale said was true. United States v.

Brown, 

, 314 (11th Cir. 1995). The record shows the government

presented sufficient evidence to allow a reasonable jury to conclude the defendants

were involved in a single conspiracy.

       Artrell Gray also argues the evidence produced at trial was insufficient to

prove he had entered into the conspiracy. There was testimony from Antwan

Gray’s girlfriend, Sherline Richard, and former co-defendant McMillian that

       12
           The jury was instructed that “[p]roof of several separate conspiracies isn’t proof of the
single overall conspiracy charged in the indictment unless one of the several conspiracies proved
is the single overall conspiracy.” R62 at 208-09. The jury further was instructed that it had to
“decide whether the single overall conspiracy charged existed between two or more conspirators.
. . . [And] if [it] decide[d] that a single overall conspiracy did exist, then [it] must decide who the
conspirators were.” R62 at 209.

                                                  32
               Case: 12-10990        Date Filed: 11/15/2013       Page: 33 of 56


Artrell Gray assisted his brother in drug dealing while they were living together at

“the four.” McMillian testified he observed drugs being packaged and sold at “the

four,” and Richard testified Artrell Gray allowed Antwan Gray to move guns to his

house in November 2009. During the search of “the four,” officers found baggies

containing 25.5 grams of cocaine, a bag of marijuana, a press and metal plates used

to compress marijuana, a marijuana grinder, and packaging materials.

Additionally, the recorded calls admitted into evidence establish Artrell Gray knew

of and voluntarily participated in the drug conspiracy. During these calls (1)

Artrell Gray asked Antwan Gray how much he should charge for the drugs, (2)

Artrell Gray told Antwan Gray there was marijuana in the closet at “the four” that

a former co-defendant was trying to sell, and (3) Antwan and Artrell Gray

discussed drugs and guns hidden at “the four.” Viewed in the light most favorable

to the government, this evidence was sufficient for a jury to find beyond a

reasonable doubt that Artrell Gray not only knew of the illegal conspiracy but also

voluntarily joined it.

       Kemp argues the evidence established he was only an occasional purchaser

and not a voluntary participant in the drug conspiracy. We disagree.13 Former co-


       13
          Kemp also argues, for the first time on appeal, there was insufficient evidence to
support the jury’s findings regarding the drug quantities involved in the conspiracy. We find no
merit to his argument because the evidence, including the summary calculations and drug
quantities chart, was more than sufficient, and the district court properly instructed the jury to
decide whether the conspiracy involved the drug quantities alleged in the indictment.

                                                33
              Case: 12-10990       Date Filed: 11/15/2013     Page: 34 of 56


defendant McMillian testified that, when he could not fill orders, he referred

customers to Kemp, and he received drugs from Kemp from 2009 to 2010. The

testimony of Antwan Gray’s girlfriend, Sherline Richard, also established Antwan

Gray and Kemp met two or three times each week and supplied each other with

MDMA, when their individual supplies were depleted. FBI Agent Lofton testified,

on the recorded phone calls, he heard Kemp discussing marijuana and

MDMA/Ecstasy with Antwan Gray, and heard Kemp ask Antwan Gray if he had

any marijuana or rolling papers. 14 Additionally, officers found marijuana residue,

a small digital scale, a metal sifter, and forty-eight nickel and dime bags of

marijuana in Kemp’s bedroom. The trial evidence was sufficient for a jury to

conclude beyond a reasonable doubt that Artrell Gray, Kale, and Kemp voluntarily

participated in the conspiracy to possess with intent to distribute controlled

substances.

2. Possession of a Firearm by a Convicted Felon (Count 5)

       Jefferson argues the district court erred by denying his motion for acquittal

or a new trial, because there was insufficient evidence to support his conviction for

possessing a firearm as a convicted felon. Without objection, the government


       14
          There were many recorded calls admitted into evidence in which Kemp discussed drug
dealing with Antwan Gray. These include: (1) Kemp’s telling Antwan Gray he had obtained a
quarter pound of marijuana from Kale; (2) Antwan Gray’s asking Kemp if he knew who had
high quality marijuana available; and (3) Kemp’s negotiating a marijuana purchase from Antwan
Gray.

                                             34
             Case: 12-10990     Date Filed: 11/15/2013    Page: 35 of 56


introduced copies of Jefferson’s previous convictions for cocaine possession. He

contends there was no direct evidence linking him to the gun, because (1) MGPD

Detective Velez’s testimony was contradictory regarding whether Detective Velez

or the drug dog found the gun, and (2) FBI Agent Lofton’s testimony contradicted

Jefferson’s testimony.

      Assessing witness credibility is a matter committed solely to the factfinder.

United States v. Hamaker, 

, 1334 (11th Cir. 2006). When the

argument is the jury based its conviction on inconsistent testimony of government

witnesses, the convicted defendant must show the testimony was “incredible as a

matter of law” to warrant relief. United States v. Flores, 

, 1263

(11th Cir. 2009) (per curiam) (citation and internal quotation marks omitted). “For

testimony to be considered incredible as a matter of law, it must be unbelievable on

its face, i.e., testimony as to facts that the witness could not have possibly observed

or events that could not have occurred under the laws of nature.” United States v.

Thompson, 

, 1291 (11th Cir. 2005) (citation, internal quotation

marks, and alterations omitted).

      Jefferson argues MGPD Detective Velez testified on direct examination he

found the gun under the seat, but he testified on cross examination the drug dog

found the gun, and he did not know who removed the gun from the car. Detective

Velez’s testimony on cross examination that the drug dog found the gun in the car


                                          35
             Case: 12-10990      Date Filed: 11/15/2013   Page: 36 of 56


is not necessarily inconsistent with his testimony on direct examination that he

looked inside and saw the gun under the driver’s seat, after the drug dog had been

in the car. Because the testimony is not so inconsistent to find that it is

“unbelievable on its face,” the jury could determine whether to believe Detective

Velez’s testimony. See 

.

      Similarly, it was for the jury to determine whether to believe the testimony

of Jefferson or FBI Agent Lofton to the extent there were inconsistencies. See

. When Jefferson was told the gun had been found, FBI

Agent Lofton testified Jefferson said: “That’s why I didn’t want you to search the

vehicle.” R37 at 238. Jefferson testified he told the officers he had borrowed the

car and did not know anything about the gun. Because FBI Agent Lofton’s

testimony is not incredible, the jury’s credibility determination prevails. See

. Since Jefferson chose to testify, the jury was entitled to

disbelieve his testimony and to conclude the opposite of what he said was true.

See 

.

3. Possession of a Firearm in Furtherance of a Drug-Trafficking Crime (Count 8)

      Antwan and Artrell Gray, Rasheed Thompson, Kale, and Kemp argue there

was insufficient evidence to convict them of possession of a firearm in furtherance

of a drug-trafficking crime, 18 U.S.C. § 924(c), prosecuted under a Pinkerton

theory of vicarious liability. Because Jefferson was acquitted of the conspiracy


                                          36
             Case: 12-10990      Date Filed: 11/15/2013    Page: 37 of 56


charge, Antwan and Artrell Gray, Kale, and Kemp argue that they cannot be liable

for Jefferson’s possession of a gun.

      If the challenged guilty verdict is supported by sufficient evidence, it stands,

although there is an inconsistent verdict on another count. See United States v.

Mitchell, 

, 1343-45 (11th Cir. 1998). The Supreme Court has

explained:

      [W]here truly inconsistent verdicts have been reached, “[t]he most
      that can be said . . . is that the verdict shows that either in the acquittal
      or the conviction the jury did not speak their real conclusions, but that
      does not show that they were not convinced of the defendant’s guilt.” .
      . . [I]nconsistent verdicts—even verdicts that acquit on a predicate
      offense while convicting on the compound offense—should not
      necessarily be interpreted as a windfall to the Government at the
      defendant’s expense. It is equally possible that the jury, convinced of
      guilt, properly reached its conclusion on the compound offense, and
      then through mistake, compromise, or lenity, arrived at an inconsistent
      conclusion on the lesser offense.

United States v. Powell, 

, 64-65, 

, 476-78 (1984)

(quoting Dunn v. United States, 

, 393, 

, 190 (1932)).

      To convict a defendant under § 924(c), the government must show the

defendant used, carried, or possessed a firearm in furtherance of a drug-trafficking

crime. United States v. Gunn, 

, 1234 (11th Cir. 2004) (per curiam).

A defendant may be liable under a Pinkerton theory for a co-conspirator’s gun

possession if the possession was reasonably foreseeable. United States v. Diaz,

, 1099-100 (11th Cir. 2001); United States v. Bell, 

,


                                           37
               Case: 12-10990        Date Filed: 11/15/2013        Page: 38 of 56


1274-75 (11th Cir. 1998) (per curiam). We have recognized guns and drugs go

together. United States v. Lopez, 

, 1242 (11th Cir. 2011). The Fifth

Circuit has held that, even if a defendant’s co-conspirator has been unindicted or

acquitted on the conspiracy charge, the evidence can still be sufficient to sustain a

defendant’s conviction. United States v. Dean, 

, 1490 n.19 (5th Cir.

1995). 15 We agree.

       The trial evidence showed Jefferson had stopped at the residence of Rashard

Thompson, a known co-conspirator, and Rashard Thompson went to Jefferson’s

car for several minutes. Officers stopped Jefferson for running stop signs. They

located “cut” in a plastic bag in his car and a loaded gun under the driver’s seat.

The jury reasonably could have concluded the gun was carried in furtherance of the

drug conspiracy, since the gun was stored in the car along with the “cut,” which he

admitted he sold as cocaine.

       A recorded call in which Antwan Gray, Rashard Thompson, and another

former co-defendant discussed the details of Jefferson’s arrest further showed

Jefferson was a co-conspirator. During that call, Rashard Thompson said he

       15
           Antwan and Artrell Gray, Kale, and Kemp cite United States v. Armstrong, 

(5th Cir. 2008), overruled on other grounds by United States v. Guillermo Balleza, 

, 433 n.1 (5th Cir. 2010), where the Fifth Circuit reversed a nurse’s conviction for aiding and
abetting the writing of false prescriptions when the doctor, the principal, was acquitted by the
same jury for the actual act of writing a false prescription. The Fifth Circuit reversed the nurse’s
conviction because “there [was] no evidence that [the nurse] signed the prescriptions herself or
otherwise was aware, even if [the doctor] was not, that there was no legitimate medical purpose
for the prescriptions.” 

                                                 38
             Case: 12-10990     Date Filed: 11/15/2013   Page: 39 of 56


warned Jefferson about the car he believed to be police before Jefferson left his

house. The call also indicates Rashard Thompson knew Jefferson had cut in his

car. Further, when the police stopped Jefferson, he possessed the personal

information of several members of the conspiracy, including bank account

numbers, routing numbers, and Social Security numbers. Although Jefferson was

acquitted of the conspiracy charge, sufficient evidence supported the finding that

Jefferson participated in the conspiracy and carried a gun in furtherance of the

conspiracy. See 

(“[A]s long as the guilty verdict is

supported by sufficient evidence, it must stand, even in the face of an inconsistent

verdict on another count.”).

      A gun was located in Antwan Gray’s bedroom on November 19, 2009. He

also had discussions regarding guns in taped conversations. His former girlfriend,

Sherline Richard, testified co-conspirators had shown Antwan Gray they were

carrying guns. There was sufficient evidence to support Antwan Gray’s conviction

on Count 8, since he reasonably could foresee a co-conspirator would possess a

gun in furtherance of the conspiracy.

      The trial evidence showed Kale carried a gun on his hip and possessed

shotgun shells and ammunition during the course of the conspiracy. Kale also

testified he previously had carried a gun for protection when drug dealing for drug




                                         39
               Case: 12-10990   Date Filed: 11/15/2013   Page: 40 of 56


transactions. Accordingly, a co-conspirator carrying a gun for protection was

foreseeable.

      Richard testified Kemp carried a semi-automatic weapon. Officers found

cartridges and a holder for a magazine in Kemp’s car, and a gun box and an empty

magazine were located in his residence. This evidence is sufficient to establish

Kemp reasonably could have foreseen a co-conspirator would carry a firearm in

furtherance of the drug-distribution conspiracy.

      There also was sufficient evidence to establish Artrell Gray reasonably could

have foreseen a co-conspirator’s carrying a firearm. There was an indication in the

wiretap there was another gun that was not obtained by the agents during the

execution of the search warrant. Sherline Richard testified there were guns at “the

four,” because they had been moved to Artrell Gray’s house when Antwan Gray

learned police had found guns while searching a friend’s house.

      Rasheed Thompson argues that, without the firearm evidence seized on May

11, 2010, there is insufficient evidence to support his § 924(c) conviction based on

Pinkerton. His participation in the conspiracy was established through former co-

defendant McMillian and Sherline Richard’s testimony, and through the recorded

conversations between Antwan Gray and Rasheed Thompson, wherein they

discussed drug deals, drug sources, and drug deliveries. A jury reasonably could

have concluded carrying a gun in furtherance of a conspiracy and the commission


                                         40
             Case: 12-10990     Date Filed: 11/15/2013    Page: 41 of 56


of this crime by a co-conspirator was a reasonable, foreseeable consequence of the

conspiracy. The district court found in denying Rasheed Thompson’s Rule 29

motion:

      [T]he seizure of the gun in the car in which [Rasheed Thompson]
      [was] a passenger in the front seat and the gun hidden in the center
      console supports the connection and nexus between narcotics, guns
      and [rental] cars that [were] utilized by the Defendants during and in
      furtherance of the conspiracy in this case.

R54 at 85. Viewing the evidence in the light most favorable to the government, the

district court correctly found there was more than sufficient evidence to support the

jury verdict for all defendants convicted on Count 8.

4. Knowing Possession of Identification Documents (Count 13)

      Morley argues the district court erred in denying his acquittal motion on

Count 13, because there was insufficient evidence that his possession of five or

more identification documents affected interstate commerce. Because Morley did

not raise this jurisdictional-nexus argument before the district court, we will affirm

his conviction unless there is “a manifest miscarriage of justice.” See United

States v. Fries, 

, 1291 (11th Cir. 2013). Only a minimal connection

to interstate commerce is required to support a conviction under 18 U.S.C. § 1028.

United States v. Klopf, 

, 1236 (11th Cir. 2005). It is sufficient to

prove a defendant had intended to accomplish acts that would have affected

interstate or foreign commerce. 

                                          41
               Case: 12-10990      Date Filed: 11/15/2013    Page: 42 of 56


      Sherline Richard’s testimony established Morley assisted Sonia Charles and

Richard in their identity-theft scheme. The driver’s licenses established identity in

connection with interstate banking, cash delivery, and credit-card transactions.

Morley’s possession of fraudulent driver’s licenses was an essential part in proving

the identity-theft scheme. Even if Morley had not used the driver’s licenses, there

was evidence he intended to use them, which would have affected interstate

commerce. See 

. The jury could have concluded that the

identification documents found in Morley’s bedroom would be used to further the

identity-theft scheme, which would have affected interstate commerce. There was

no miscarriage of justice in Morley’s conviction for identity theft.

D. Jury Instructions

1. Buyer-Seller Relationship

      Artrell Gray argues that the jury instructions misstated the permissible

inferences about membership in a drug distribution conspiracy that can be drawn

from a buyer-seller relationship. 16 We review jury instructions deferentially and

will reverse only if we have “a substantial and eradicable doubt” regarding whether

the jury was improperly guided in its deliberations. United States v. Steed, 

, 977 (11th Cir. 2008) (per curiam) (citation and internal quotation marks

omitted). We review de novo in determining if the court misstated the law or

      16
           Antwan Gray, Morley, and Kemp have adopted this argument.

                                             42
             Case: 12-10990      Date Filed: 11/15/2013    Page: 43 of 56


misled the jury to the prejudice of the objecting party. United States v.

Richardson, 

, 1292 (11th Cir. 2000).

      While the existence of a buyer-seller relationship is not enough to establish a

drug conspiracy, “an agreement to distribute drugs may be inferred when the

evidence shows a continuing relationship that results in the repeated transfer of

illegal drugs to a purchaser.” United States v. Thompson, 

, 1292

(11th Cir. 2005) (citation, internal quotation marks, and alterations omitted). A

conspiracy can be proved by showing drug traffickers consistently engaged in a

“series of smaller transactions that furthered the conspiracy’s ultimate object of

supplying the consumer demand of the market.” United States v. Brown, 

, 1089 (11th Cir. 2009) (citation, internal quotation marks, and alterations

omitted).

      The district court instructed the jury: “The existence of a simple buyer-seller

relationship alone doesn’t establish proof of conspiracy. Nevertheless, an

agreement to distribute drugs may be inferred when the evidence shows a

continuing buyer-seller relationship that results in the transfer of illegal drugs to a

buyer for distribution.” R62 at 208. Artrell Gray argues there was no evidence he

was involved in repeated sales and purchases of large quantities of marijuana,

cocaine, crack cocaine, and MDMA/Ecstasy, and that the instructions improperly

allowed the jury to infer his membership in the charged conspiracy without such


                                           43
             Case: 12-10990      Date Filed: 11/15/2013    Page: 44 of 56


evidence. Artrell Gray cannot establish prejudice, because his proposed jury

instruction, which listed seven factors to be considered, did not include a finding

that he dealt in “large amounts of drugs.” R5-916. In addition, the jury

instructions regarding buyer-seller relationships were legally accurate and could

not have misguided the jury.

2. Lesser-Included-Offense Instruction

      Rashard and Rasheed Thompson, Artrell Gray, Morley, and Kemp contend

the district court erred in refusing to instruct the jury that conspiracy to possess

narcotics is a lesser-included offense of conspiracy to possess with intent to

distribute. We review a district court’s refusal to give a requested jury instruction

for abuse of discretion. United States v. Lee, 

, 1273 (11th Cir. 1995).

“An abuse of discretion occurs where the district court’s decision rests upon a

clearly erroneous finding of fact, an errant conclusion of law, or an improper

application of law to fact.” United States v. Jayyousi, 

, 1113 (11th

Cir. 2011) (citation and internal quotation marks omitted).

      A defendant is entitled to a jury instruction on a lesser-included offense if

(1) the charged offense encompasses all of the elements of the lesser offense, and

(2) the evidence would permit a rational jury to find him guilty of the lesser

offense and not the greater. See United States v. Williams, 

, 1095

(11th Cir. 1999); United States v. Langston, 

, 1512 (11th Cir. 1999)


                                           44
             Case: 12-10990     Date Filed: 11/15/2013    Page: 45 of 56


(per curiam); see also Keeble v. United States, 

, 208, 

,

1995 (1973) (“[I]t is now beyond dispute that the defendant is entitled to an

instruction on a lesser included offense if the evidence would permit a jury

rationally to find him guilty of the lesser offense and acquit him of the greater.”).

In the context of possession and distribution of drugs, we have held that a lesser-

included offense instruction is not required where the evidence is inconsistent with

a defendant’s possession of drugs for personal use. See 

(holding a defendant was not entitled to a jury instruction on the lesser-included

offense of simple possession where there was “no significant evidence presented to

support the possibility that the crack cocaine in [his] pocket was for his personal

use”); United States v. Pirolli, 

, 1387 (11th Cir. 1984) (holding a

defendant was not entitled to an instruction on possession of cocaine, a lesser-

included offense of possession with intent to distribute cocaine, because the drug

quantities involved were “too great for personal use”).

      The district court denied the defendants’ requested jury instruction on the

ground that conspiracy to possess narcotics is not a lesser-included offense of

conspiracy to possess with intent to distribute, because the two offenses do not

share “the same elements.” R60 at 35. The court’s legal conclusion was in error.

By definition, a lesser-included offense does not contain each and every element of

the greater offense, but only “a subset of the elements of the charged offense.”


                                          45
              Case: 12-10990    Date Filed: 11/15/2013    Page: 46 of 56


Schmuck v. United States, 

, 716, 

, 1450 (1989). And

every circuit to have addressed the issue now before us has held conspiracy to

possess a controlled substance is a lesser-included offense of conspiracy to possess

with intent to distribute that substance. See United States v. LaPointe, 

, 440 (6th Cir. 2012); United States v. Boidi, 

, 28 (1st Cir. 2009)

(“[A] vertical ‘conspiracy to possess drugs with intent to distribute’ can easily be

said to be a ‘conspiracy to possess drugs’ with one added element, namely, that the

parties also had a shared aim that the possessed drugs then be distributed.”); United

States v. Garcia, 

, 1014 (5th Cir. 1994); United States v. Baker, 

, 1259 (4th Cir. 1993); United States v. Miller, 

, 609 (8th

Cir. 1991). We similarly have recognized that possession of a controlled substance

is a lesser-included offense of possession with intent to distribute a controlled

substance, see 

, and we can discern no cogent reason why that

reasoning should not also apply where the charged offense is a drug distribution

conspiracy.

      Nevertheless, despite the district court’s error, the defendants were not

otherwise entitled to a jury instruction on the lesser-included offense of conspiracy

to possess narcotics because a rational jury could not have found them guilty of

that lesser offense and acquitted them of the charged distribution offense. As we

have already recounted, the evidence presented at trial showed that Rashard and


                                          46
             Case: 12-10990     Date Filed: 11/15/2013    Page: 47 of 56


Rasheed Thompson, Artrell Gray, Morley, and Kemp conspired to distribute the

drugs that they possessed, including the presence of digital scales, baggies filled

with drugs, and other items and packaging methods commonly used to distribute

drugs. There was no evidence on which a jury could rationally conclude that the

defendants conspired to possess the drugs but not with a shared intent to distribute

them. Because the evidence would not support a verdict for conspiracy to possess

only for personal use, the defendants were not entitled to lesser-offense instruction

on conspiracy to possess narcotics.

E. Severance Motions

      Morley and Jefferson appeal the denial of their motions to sever. “It is well

settled that defendants who are indicted together are usually tried together,” and

this principle “is particularly true in conspiracy cases.” United States v. Browne,

, 1268 (11th Cir. 2007). When a district court does not sever

defendants’ trials, they have the “heavy burden” of showing “compelling

prejudice” from the joint trial. 

internal quotation marks omitted).

“The jury’s ability to reach different verdicts as to different defendants is one

factor that signifies the jury’s ability to make individualized determinations.”

United States v. Diaz, 

, 1101 (11th Cir. 2001).

      Morley argues the district court should have granted his motions for

severance and a mistrial because his co-defendants’ possession of guns was not


                                          47
              Case: 12-10990     Date Filed: 11/15/2013    Page: 48 of 56


relevant to the drug distribution conspiracy; therefore, the spillover effect led to his

conspiracy conviction. A denial of a motion to sever will not be reversed absent an

abuse of discretion. United States v. Slaughter, 

, 1213 (11th Cir.),

cert. denied, 

(2013). The district court recognized firearms are

tools of the drug-trafficking trade and admitted evidence of firearms possession as

inextricably intertwined evidence and direct evidence pertaining to Count 1,

conspiracy to possess with intent to distribute drugs, and Count 8, using a firearm

in furtherance of a drug conspiracy. Morley moved for severance and mistrial. He

argued the evidence was prejudicial and without relevance to the drug distribution

conspiracy.

      Because the evidence could have supported his buyer-seller defense, Morley

argues that he could have been convicted as a result of the firearms evidence. The

evidence against Morley, however, was more than sufficient to support his

conviction on the conspiracy charge. Morley’s taking over the delivery of drugs

while Antwan Gray was on vacation was heard on twelve wire intercepts. Morley

also discussed police surveillance, drug supplies, and drug deliveries. In addition,

Sherline Richard testified she saw Morley have drug-related interactions with

Antwan Gray, receive phone calls about drug dealing, and deliver marijuana and

cocaine to customers.




                                           48
               Case: 12-10990       Date Filed: 11/15/2013       Page: 49 of 56


       With the overwhelming evidence of Morley’s participation in the drug-

distribution conspiracy, his argument that he was prejudiced by the district court’s

denial of his motion to sever is meritless. See 

; see also

United States v. Lopez, 

, 1241 (11th Cir. 2011) (recognizing no

abuse of discretion in denying the motion to sever when there was overwhelming

evidence of the defendant’s guilt). Additionally, the jury was instructed to

consider the charges against each defendant separately according to the evidence,

and the various acquittals show that the jury followed those instructions. See

; 

.

       Jefferson’s argument that his trial should have been severed also is

unavailing.17 Jefferson was acquitted on Counts 1 and 8, showing the jury

followed the instruction to consider the evidence separately for each defendant.

See 

. There was sufficient evidence to find Jefferson guilty

beyond a reasonable doubt on Count 5, possession of a firearm by a convicted

felon. The court did not abuse its discretion in denying Morley’s and Jefferson’s

motions to sever before or during trial. See 

.




       17
          Rashard Thompson attempts to adopt Jefferson’s severance argument by reference.
But severance issues are fact-specific, requiring a showing of “actual, compelling prejudice.”
United States v. Chavez, 

, 1360 (11th Cir. 2009). Accordingly, Rashard
Thompson cannot adopt this fact-specific inquiry. See United States v. Khoury, 

,
963 n.13 (11th Cir. 1990).

                                               49
               Case: 12-10990       Date Filed: 11/15/2013       Page: 50 of 56


F. Sentencing Issues

       The defendants appeal various sentencing issues following their

convictions.18

1. Drug Quantities/Career-Offender Status

       Rashard Thompson, Morley, Kale, and Kemp argue the district court erred

in calculating the drug quantities for their sentencing and failed to make

individualized drug quantity findings. They pursue a dead end on appeal, because

determining a convicted defendant’s Sentencing Guidelines range requires the

court to consider the defendant’s relevant conduct, including all acts taken, aided,

abetted, or caused by the defendant and all reasonably foreseeable actions taken by

others in furtherance of the joint criminal activity. 

(citing U.S.S.G. § 1B1.3(a)(1)).

       In addition, any error of the court in failing to make sufficiently

individualized drug findings or in calculating drug amounts was harmless because

Rashard Thompson, Morley, Kale, and Kemp were all sentenced as career

offenders under U.S.S.G. § 4B1.1(a), a status they do not challenge. Therefore,

       18
           We affirm the sentences of Antwan and Artrell Gray, and Rasheed Thompson, without
further comment, because they have failed to raise independently sentencing issues in their briefs
and have failed adequately to adopt sentencing issues raised by their co-defendants. See Fed. R.
App. P. 28(i) (“In a case involving more than one appellant or appellee, including consolidated
cases, any number of appellants or appellees may join in a brief, and any party may adopt by
reference a part of another’s brief.”); 11th Cir. R. 28-1(f) (“A party who adopts by reference any
part of the brief of another party pursuant to FRAP 28(i) shall include a statement describing in
detail which briefs and which portions of those briefs are adopted.”).

                                               50
             Case: 12-10990     Date Filed: 11/15/2013    Page: 51 of 56


their sentences were based on the career-offender classification rather than on the

drug amount involved in their crimes of conviction.

2. Denial of Sentence Variances

      Kemp and Jefferson argue the district court erred in refusing to grant

downward variances in their sentences. We review the denial of a motion for a

downward variance in a sentence for reasonableness. United States v. Willis, 

, 1251 (11th Cir. 2009) (per curiam). The challenging defendant bears

the burden of showing his sentence is unreasonable in light of the record and the 18

U.S.C. § 3553(a) factors. United States v. Tome, 

, 1378 (11th Cir.

2010). At sentencing, the court is not required to “incant the specific language

used in the guidelines” or “articulate its consideration of each individual § 3553(a)

factor,” so long as the record reflects that the court considered those factors.

United States v. Bonilla, 

, 1182 (11th Cir. 2006) (citations and

internal quotation marks omitted). We will vacate a sentence “only if we are left

with the definite and firm conviction that the district court committed a clear error

of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Irey, 

, 1190 (11th Cir. 2010) (en banc) (citation and internal

quotation marks omitted).




                                          51
               Case: 12-10990        Date Filed: 11/15/2013       Page: 52 of 56


       The district court did not err in denying Kemp’s and Jefferson’s motions for

downward variances in their sentences. The court noted that it had considered the

parties’ arguments, the Sentencing Guidelines, and the § 3553(a) sentencing

factors. During Kemp’s sentencing, the court referenced his criminal background,

the need to protect the public, the need to provide stronger deterrence after lenient

state sentences had not curbed his recidivism, and the severity of the offenses

involved in the conspiracy. Regarding Jefferson, the court referred to his criminal

history, the nature of the offense, the need to protect the public, the need for

deterrence, and the need to provide adequate punishment. Moreover, the sentences

for Kemp and Jefferson were well below the statutory maximum. United States v.

Gonzalez, 

, 1324 (11th Cir. 2008) (per curiam).

3. Sentence Enhancements

       Rashard Thompson and Kale argue the district court erred by enhancing

their sentences pursuant to 21 U.S.C. § 851, because the government failed to file a

proper notice under § 851(a).19 We review de novo questions regarding the


       19
           In their supplemental briefs, Rashard Thompson, Morley, Kale, and Kemp seek to raise
a new sentencing issue based on Alleyne v. United States, 

(2013), in arguing the
district court violated their Sixth Amendment rights by using prior felony-drug convictions,
although the prior convictions were not set forth in the indictment or found by the jury to have
occurred as a matter of fact. Rashard Thompson and Kale attempt to tie the issue to their
argument that the government did not satisfy the statutory filing and service requirements of 21
U.S.C. § 851; however, neither defendant raised a constitutional issue based on the Sixth
Amendment in their initial briefs. Morley and Kemp failed to raise the enhancement issue at all
in their initial briefs. Therefore, all defendants have waived this purported new issue. See, e.g.,
United States v. Britt, 

, 1104 (11th Cir. 2006) (per curiam); United States v.
                                                52
               Case: 12-10990       Date Filed: 11/15/2013       Page: 53 of 56


adequacy of a § 851 notice. United States v. Ramirez, 

, 1239 (11th

Cir. 2007) (per curiam). If the government chooses to seek enhanced punishment

for a defendant charged with a drug possession crime under 21 U.S.C. § 841 based

on his prior drug convictions, it must file an information with the district court and

serve a copy on the defendant or his counsel. 21 U.S.C. § 851(a)(1). The § 851(a)

notice requirement is jurisdictional. Harris v. United States, 

, 1306-

07 (11th Cir. 1998). The purposes of the § 851 notification are to allow a

defendant to (1) “contest the accuracy of the information,” (2) contest whether

those convictions are the type that can support the enhancement, and (3) “have

ample time to determine whether to enter a plea or go to trial and plan his trial

strategy with full knowledge of the consequences of a potential guilty verdict.”

(citation and internal quotation marks omitted).

       Where a defendant received § 851 notice through a § 851 information filed

prior to trial, however, the government need not file another § 851 information

after a superseding indictment is later filed. United States v. Thompson, 

, 1145-46 (11th Cir. 2006). The district court did not err in enhancing either

Rashard Thompson or Kale’s sentence under § 851, because the government filed


Robles, 

, 1326 n.1 (11th Cir. 2005) (per curiam); United States v. Levy, 

, 1242 (11th Cir. 2004) (per curiam). Moreover, the Supreme Court held in Alleyne that
most facts that increase a mandatory-maximum sentence must be submitted to the jury; the Court
expressly did not disturb the rule that a judge may find the fact of a prior conviction. 

n.1; United States v. Carrigan, 

, 51 n.4 (1st Cir. 2013).

                                               53
              Case: 12-10990    Date Filed: 11/15/2013   Page: 54 of 56


the original § 851 informations more than one year before the joint trial

commenced and listed the specific Florida convictions on which it relied for the

enhancements. Because notifications were filed before their trial, Rashard

Thompson and Kale had sufficient time to contest whether the Florida convictions

could serve as predicate offenses to support the enhancement and to determine case

strategies.

       Jefferson also contends the district court erred in applying a sentencing

enhancement for his use or possession of a firearm in connection with another

felony offense. We review whether a firearm was used “in connection with” a

felony only for clear error. United States v. Whitfield, 

, 949 & n.8

(11th Cir. 1995) (per curiam). The Sentencing Guidelines provide a four-level

enhancement where the defendant “[u]sed or possessed any firearm or ammunition

in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B).

       This enhancement applies “if the firearm or ammunition facilitated, or had

the potential of facilitating, another felony offense.” U.S.S.G. § 2K2.1 cmt.

n.14(A). “A firearm found in close proximity to drugs or drug-related items

simply ‘has’—without any requirement for additional evidence—the potential to

facilitate the drug offense.” United States v. Carillo-Ayala, 

, 92 (11th

Cir. 2013). Florida controlled-substance standards and schedules list cocaine as a

controlled substance. Fla. Stat. § 893.03. It is unlawful for “any person to agree,


                                          54
             Case: 12-10990     Date Filed: 11/15/2013    Page: 55 of 56


consent, or in any manner offer to unlawfully sell to any person a controlled

substance named or described in [§] 893.03 and then sell to such person any other

substance in lieu of such controlled substance.” Fla. Stat. § 817.563. A conviction

under § 817.563 of the Florida Statutes involving the promised sale of cocaine is a

felony. Fla. Stat. § 817.563(1).

      During a traffic stop, Jefferson told the officers he sold the incense found in

his car to customers as cocaine because they could not tell the difference. MGPD

Detective Velez testified a loaded gun was found under the driver’s seat of

Jefferson’s car, and the bag containing the incense was in the passenger’s seat

compartment. Where a firearm is near drugs or drug-related items, it automatically

has the ability to facilitate a drug crime, without the requirement of any additional

evidence. 

. Despite his testimony to the contrary,

when the officers found his gun, Jefferson asserted the hidden gun was the reason

he had not wanted the car searched. The district court did not clearly err in

enhancing Jefferson’s offense level pursuant to U.S.S.G. § 2K2.1(b)(6)(B).

4. Refusal to Accord Mitigating-Role Reduction

      Jefferson contends the district court improperly refused to apply a two-level,

minor-role reduction in calculating his sentence. The determination of a

defendant’s role in an offense is a factual finding reviewed for clear error. United

States v. Barner, 

, 1253 (11th Cir. 2009).


                                          55
              Case: 12-10990    Date Filed: 11/15/2013   Page: 56 of 56


      A mitigating-role reduction in a sentence is based on the extent of the

convicted defendant’s involvement in the criminal conduct. U.S.S.G. § 3B1.2. For

a minor role, the defendant is entitled to a two-level reduction. U.S.S.G. §

3B1.2(b). The court did not err in declining to apply a minor-role reduction,

because Jefferson was convicted of possessing a firearm as a felon, an offense in

which he was the sole perpetrator. Since there was no one else with whom to

compare his conduct there was no ground for a role adjustment.

                               III.   CONCLUSION

      While the evidence in this case varied for each defendant, their convictions

are supported by sufficient evidence, and the challenges to their sentences are

unavailing.

      AFFIRMED.




                                         56