Case: 19-12158    Date Filed: 03/25/2020   Page: 1 of 8



                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-12158
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 1:17-cr-00316-MHC-AJB-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

RYAN JUWARN REMBERT,

                                                              Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                 (March 25, 2020)

Before ROSENBAUM, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

      Ryan Rembert appeals his sentence for possessing a firearm after having been

convicted of a felony, in violation of 18 U.S.C. § 922(g). Following a traffic stop,
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law-enforcement officers found in a car Rembert had been driving a loaded gun,

along with 18.6 grams of suspected marijuana, a digital scale, and a box of sandwich

baggies. At sentencing, the district court concluded that Rembert possessed the gun

in connection with a felony drug-trafficking offense, so it applied a four-level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B). On appeal, Rembert argues that the

enhancement did not apply because the government failed to prove that the substance

was, in fact, marijuana, rather than legal hemp, and that he possessed the suspected

marijuana with intent to distribute.

      We review a district court’s factual findings under the Sentencing Guidelines

for clear error and its interpretation of the Guidelines de novo. United States v.

Carillo-Ayala, 

, 87 (11th Cir. 2013). A factual finding “is not clearly

erroneous unless we are left with a definite and firm conviction that a mistake has

been committed.” United States v. Smith, 

, 1302 (11th Cir. 2016)

(quotation marks omitted). In other words, if two reasonable constructions of the

evidence exist, “the fact-finder’s choice between them cannot be clearly erroneous.”

omitted).

      The government bears the burden of proving, by a preponderance of the

evidence, the facts necessary to support a challenged sentencing enhancement.

United States v. Martinez, 

, 1027 (11th Cir. 2009). The district court

must ensure that the government meets this burden with reliable and specific

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evidence.

its factual findings at sentencing, the court may rely on

“evidence heard during trial, facts admitted by a defendant’s plea of guilty,

undisputed statements in the presentence report, or evidence presented at the

sentencing hearing.” United States v. Wilson, 

, 1356 (11th Cir. 1989).

      For a firearm-possession offense under § 922(g), U.S.S.G. § 2K2.1(b)(6)(B)

provides for a four-level enhancement of the base offense level “[i]f the defendant

used or possessed any firearm or ammunition in connection with another felony

offense.” “Another felony offense,” in turn, includes crimes that are “punishable by

imprisonment for a term exceeding one year” under federal, state, or local law,

“regardless of whether a criminal charge was brought, or a conviction obtained.”

cmt. n.14(C). In general, a sufficient connection exists if the firearm

“facilitated, or had the potential of facilitating,” the other offense.
 

cmt.

n.14(A). When the other offense is a drug-trafficking crime, “[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.”

Carillo-Ayala, 713 F.3d at 92
; see also United States v. Bishop, 
940 F.3d 1242
,

1250–51 (11th Cir. 2019) (contrasting the showing required for drug-trafficking

crimes with drug-possession crimes); U.S.S.G. § 2K2.1, cmt. n.14(B).

      “Intent to distribute can be proven circumstantially from, among other things,

the quantity of [the drugs] and the existence of implements such as scales commonly

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used in connection with the distribution of [drugs].” United States v. Poole, 
878

F.2d 1389
, 1391–92 (11th Cir. 1989). In United States v. Mercer, for example, we

determined that the jury could infer an intent to distribute from evidence of a large

number of small plastic baggies, a “drug ledger,” 15.6 grams of methamphetamine,

“the lack of paraphernalia used to consume the drug,” and testimony about the

defendant’s purchase of an ounce of methamphetamine on the day of his arrest. 
541

F.3d 1070
, 1076 (11th Cir. 2008). In addition, possession of a firearm is relevant to

show a defendant’s intent to distribute because we have held that such weapons are

often “tools of the trade” for drug dealers. United States v. Rodriguez, 
765 F.2d

1546
, 1562 (11th Cir. 1985) (quotation marks omitted).

      Rembert maintains that the district court erred in applying the

§ 2K2.1(b)(6)(B) enhancement for two reasons. First, Rembert argues that the

government failed to produce sufficient evidence that the suspected marijuana was

a controlled substance.    Rembert explains that, in 2018, Congress excluded

“hemp”—defined as “the plant Cannabis sativa L. and any part of that plant . . . with

a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on

a dry weight basis”—from the definition of “marihuana” in the Controlled

Substances Act (“CSA”).      21 U.S.C. § 802(16)(B); 7 U.S.C. § 1639o(1); see

Agriculture Improvement Act of 2018, Pub. L. 115-334, § 12619, 132 Stat. 4490,




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5018.    In Rembert’s view, the government failed to prove that the suspected

marijuana in this case had a THC concentration higher than 0.3 percent.

        Second, Rembert contends that the government failed to prove that, even

assuming the suspected marijuana was a controlled substance, he possessed the

marijuana with intent to distribute. He asserts that he presented substantial evidence

of personal use that far outweighed the government’s evidence of distribution. In

Rembert’s view, the evidence supporting personal use included the following:

Rembert possessed a misdemeanor quantity of marijuana; the condition of the

marijuana when found indicated that it was intended for personal use; there was little

evidence to connect Rembert to the digital scale, which, in any event, can be used

by marijuana users to confirm the quantity they are buying and to budget their

supply; the unused baggies were not found in proximity to the gun or drugs, and

have uses unrelated to drug distribution; evidence established that Rembert

borrowed the gun for protection of his family; Rembert, despite using marijuana,

had never been convicted of any drug-distribution offense, nor was there evidence

that he had previously engaged in drug distribution; and Rembert had a legal form

of income from employment.

        We affirm the district court’s application of the § 2K2.1(b)(6)(B)

enhancement. The record supports the court’s determination that Rembert possessed

a firearm in connection with a drug-trafficking offense.

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      First, the district court did not clearly err in finding that the substance was

marijuana, not hemp. The government presented a lab report concluding that the

substance recovered from the car Rembert was driving was 18.6 grams of marijuana.

While that report—prepared before the CSA amendments—did not identify the THC

concentration of the substance, sufficient circumstantial evidence supports the

court’s implicit finding that the substance was, in fact, marijuana. Rembert was an

admitted daily smoker of marijuana and had previous convictions for possession of

marijuana, so it would be unlikely for him to possess hemp with negligible THC, the

psychoactive chemical in marijuana. That is particularly so where, as Rembert

argued at sentencing, some of the suspected marijuana had been ground and prepared

to be smoked by a user. Plus, other items found in the car—a digital scale, empty

plastic baggies, and a loaded gun—are, as explained more fully below, consistent

with marijuana trafficking. From these facts, the district court reasonably could have

concluded that the substance was more likely than not marijuana. See 
Martinez, 584

F.3d at 1027
.

      Second, the district court permissibly concluded that Rembert possessed the

marijuana with intent to distribute. We agree with Rembert that the evidence could

support a finding that he possessed the 18.6 grams of marijuana found in his

backpack solely for personal use. But we may not overturn the court’s contrary

finding as clearly erroneous “unless we are left with a definite and firm conviction

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that a mistake has been committed.” 
Smith, 821 F.3d at 1302
. And we are not left

with such a conviction here.

      The government presented evidence that Rembert possessed 18.6 grams of

marijuana in close proximity to a loaded gun and items typically, though by no

means always, used in drug distribution—a digital scale and empty sandwich

baggies. See 
Mercer, 541 F.3d at 1076 
(citing empty, small plastic baggies as

evidence of intent to distribute); 
Poole, 878 F.2d at 1392 
(stating that “scales [are]

commonly used in connection with the distribution of [drugs]”); 
Rodriguez, 765 F.2d

at 1562 
(stating that possession of a gun is relevant to show intent to distribute). And

the record does not show that the car contained any paraphernalia used to smoke the

marijuana. See 
Mercer, 541 F.3d at 1076 
(citing “the lack of paraphernalia used to

consume the drug” as evidence of intent to distribute). A permissible view of this

evidence is the one reached by the district court: that Rembert possessed the

marijuana with intent to distribute. So even if the evidence was also consistent with

personal use, the district court’s choice between two reasonable views of the

evidence did not amount to clear error. See 
Smith, 821 F.3d at 1302
. And Rembert

does not dispute that, if he possessed the marijuana with intent to distribute, the fact

that the gun was in close proximity to the drugs was sufficient to apply the

§ 2K2.1(b)(6)(B) enhancement. See 
Carillo-Ayala, 713 F.3d at 92
.




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       Finally, we disagree with Rembert that the district court failed to consider the

totality of the circumstances and treated certain factors as dispositive.                  We

acknowledge that the court, at times, appeared to express the mistaken view that it

was constrained by unpublished decisions from this Court, 1 which Rembert argues

were factually distinguishable in any event. But the court recognized that these

decisions were merely “persuasive authority.” And the record shows that the court

understood it was required to evaluate the totality of the evidence and that it

considered “everything” Rembert argued and presented. While the court agreed that

there were signs of a mere possession offense, it found that the combination of items

discovered in the car was sufficient to prove intent to distribute by a preponderance

of the evidence, though not beyond a reasonable doubt. For the reasons we have

explained, that decision was not clearly erroneous.

       Accordingly, the district court did not clearly err in applying the sentencing

enhancement under U.S.S.G. § 2K2.1(b)(6)(B). We therefore affirm Rembert’s

sentence.

       AFFIRMED.




       1
        We once again repeat that unpublished opinions of this Court are not binding precedent.
United States v. Izurieta, 
710 F.3d 1176
, 1179 (11th Cir. 2013).
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