Filed: Sep. 26, 2008
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 06-16682 September 26, 2008 _ THOMAS K. KAHN CLERK D.C. Docket No. 06-00004-CR-FTM-99SPC UNITED STATES OF AMERICA, Plaintiff–Appellee, versus JIMMY LOUISUIS, a.k.a. J.C., ELEX PIERRE, a.k.a. Showtime, EXUIS LOUIS, a.k.a. X-Man, JOSEPH JOHNSON, a.k.a. Trap, etc., Defendants–Appellants. _ Appeals from the United States District Court for the Middle District of Florida
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 06-16682 September 26, 2008 _ THOMAS K. KAHN CLERK D.C. Docket No. 06-00004-CR-FTM-99SPC UNITED STATES OF AMERICA, Plaintiff–Appellee, versus JIMMY LOUISUIS, a.k.a. J.C., ELEX PIERRE, a.k.a. Showtime, EXUIS LOUIS, a.k.a. X-Man, JOSEPH JOHNSON, a.k.a. Trap, etc., Defendants–Appellants. _ Appeals from the United States District Court for the Middle District of Florida _..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-16682 September 26, 2008
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 06-00004-CR-FTM-99SPC
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
JIMMY LOUISUIS,
a.k.a. J.C.,
ELEX PIERRE,
a.k.a. Showtime,
EXUIS LOUIS,
a.k.a. X-Man,
JOSEPH JOHNSON,
a.k.a. Trap,
etc.,
Defendants–Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(September 26, 2008)
Before ANDERSON, BARKETT and COX, Circuit Judges.
PER CURIAM:
Jimmy Louisuis, Exuis Louis, Joseph Johnson, and Elex Pierre appeal from
their respective convictions and sentences for drug trafficking.1 The convictions
were based on surveillance and controlled purchases of crack cocaine on several
occasions involving the defendants at two different locations: an apartment on
Hemingway Circle and an apartment on Andrew Drive in Naples, Florida.
Pursuant to a search warrant, authorities first searched the Hemingway Circle
apartment and seized: cocaine, crack cocaine, plastic bags used to package
narcotics, measuring utensils commonly used to prepare crack cocaine, a safe
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All of the defendants were convicted of conspiracy with intent to distribute fifty (50)
grams or more of a substance containing a detectable amount of cocaine base in violation of 21
U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A)(iii) (Count One); conspiracy to possess with
intent to distribute fifty (50) grams or more of a mixture or substance containing a detectable
amount of cocaine base in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(A)(iii) and
18 U.S.C. § 2 (Count Four); knowingly and intentionally using and maintaining a place at 5210
Hemingway Circle, Apartment 2304, Naples, Florida 34116, for the purpose of manufacturing
and distributing cocaine base in violation of 21 U.S.C. § 856(a)(1), 21 U.S.C. § 856(b), and 18
U.S.C. § 2 (Count Five); and, while aiding and abetting said co-defendants, knowingly
possessing firearms in furtherance of a drug trafficking crime, namely conspiracy to possess with
intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. §
924(c)(1)(A)(i) and 18 U.S.C. § 2 (Count Six). Louisuis and Pierre were also convicted of a
second charge of knowingly, willfully, and with intentionally possessing with intent to distribute
fifty (50) grams or more of a mixture or substance containing a detectable cocaine base in
violation of 21 U.S.C. § 841(b)(1)(A)(iii), and 18 U.S.C. § 2 (Count 8), and knowingly and
intentionally using and maintaining a place at 2615 Andrew Drive, Naples, Florida 34116, for
the purpose of distributing cocaine base in violation of 21 U.S.C. § 856(a)(1), 21 U.S.C. §
856(b), and 18 U.S.C. § 2 (Count 9). Additionally, Pierre was convicted of possessing cocaine
base with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c) (Counts Two
and Three), and Johnson was convicted of possessing a firearm after having been convicted of a
felony offense, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Seven).
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containing Louisuis’s driver’s license and Social Security card, a handgun holster,
a bulletproof vest bearing Pierre’s fingerprints, a loaded pistol inside a jacket on
the floor, an envelope bearing Louisuis’s fingerprints on it, a receipt bearing
Louis’s signature, a county jail property release form showing Pierre’s payment of
Johnson’s bond, marijuana packaged in plastic bags, a digital scale, two assault
rifles, three handguns, ammunition, magazines for a rifle and handgun, and
approximately $6,000. Pierre’s fingerprints were on a plastic bag and envelope.
Pierre’s and Louisuis’s fingerprints also were on another envelope. Authorities
also seized numerous cellular telephones from the apartment. Johnson and Louis
were arrested during the search. Authorities then obtained two warrants for
Pierre’s arrest.
Approximately one month later, with an arrest warrant for Pierre, the police
entered the apartment on Andrew Drive to serve the arrest warrant on Pierre and
also arrested Louisuis who was in the apartment. While there, they observed drugs
on the floor of the bedroom in which they found Pierre and Louisuis. This formed
the basis for the subsequent search warrant obtained and served on the premises.
Appellants raise several arguments on appeal, and we consider each in turn.
JIMMY LOUISUIS,
Louisuis first argues that his conviction for knowingly and intentionally
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using and maintaining a place at 2615 Andrew Drive, Naples, Florida 34116, for
the purpose of distributing cocaine base in violation of 21 U.S.C. § 856(a)(1), 21
U.S.C. § 856(b), and 18 U.S.C. § 2 (Count 9), must be reversed because the district
court erred in denying his motion to suppress the evidence obtained from that
address. He argues that law enforcement officials did not have a search warrant
when they entered the Andrew Drive residence at the time of his arrest, and
therefore all of the evidence obtained from the residence should have been
suppressed. The district court denied the motion, finding that the entry was
permitted by exigent circumstances. We need not address whether exigent
circumstances existed here because the record reflects that the officers had a
warrant to arrest Pierre whom they reasonably believed to be living in the
residence and present at the residence at the time. See United States v. Bervaldi,
226 F.3d 1256, 1263 (11th Cir. 2000) (“‘[F]or law enforcement officials to enter a
residence to execute an arrest warrant for a resident of the premises, the facts and
circumstances within the knowledge of the law enforcement agents, when viewed
in the totality, must warrant a reasonable belief that the location to be searched is
the suspect’s dwelling, and that the suspect is within the residence at the time of
entry.’” (quoting United States v. Magluta,
44 F.3d 1530, 1535 (11th Cir. 1995))).
Moreover, the law enforcement officials did not search the residence at the time of
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the entry. They observed drugs in plain view during the arrest and returned
thereafter with the requisite warrant to search the residence.
Louisuis next argues that the evidence produced by the government was
insufficient to support his convictions because the government did not prove that
he knowingly entered into the drug conspiracy alleged in Count One of the
indictment but only showed that, at most, he associated with criminals.
Additionally, Louisuis argues that there was no proof of a nexus between his
constructive possession of the firearms and any drug trafficking offense. The
record supports the convictions because the on-going criminal
activities—including Louisuis’s sale of drugs—and Louisuis’s constructive control
over the illicit materials permit the inference that Louisuis was more than just an
innocent bystander. As to the firearm count, the recovery of the firearms in close
proximity to drugs show a nexus between the possession and the drug trafficking
offense.
Next, Louisuis argues that the district court erroneously failed to dismiss a
juror for his inability to focus on the trial. The record indicates that the district
court dismissed the juror at Louisuis’s request and, therefore, there is no adverse
ruling for us to review.
Louisuis also asserts that the cumulative effect of all of the errors alleged in
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his brief warrants reversal. Because the district did not err as to the issues raised
by Louisuis, he was not deprived of a fundamentally fair trial.
Finally, Louisuis adopts his codefendants’ arguments, which challenge the
district court’s determination that it could not consider the crack-cocaine disparity.
This conflicts with the intervening Supreme Court decision in Kimbrough v.
United States, __ U.S. __, __, 128 S. Ct. 558, 575,
169 L. Ed. 481 (2007). Thus,
we reverse Louisuis’s sentence and remand for resentencing.
EXUIS LOUIS,
Louis first argues that the district court erred by denying his motion to sever
his trial from that of his codefendants. We find nothing in the record that
demonstrates that trying him jointly with his codefendants would result in any
specific prejudice to him. Second, Louis argues that government witness Ivane
Camille’s testimony was incredible as a matter of law. Camille asserted that her
testimony against Louis was not coerced, and she offered plausible explanations
for minor inconsistencies between her trial testimony and past statements. Her
testimony cannot be deemed incredible as a matter of law, and the district court did
not err by allowing the jury to consider her testimony. Third, because Louis has
not demonstrated that the evidentiary rulings which he claims were erroneous
prejudiced him in any way, those rulings did not deprive him of a fair trial.
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As to his sentence. Louis argues that the district court’s determination that it
could not consider the crack-cocaine disparity violates Kimbrough, 128 S. Ct. at
575. We agree. As the government now acknowledges, the Supreme Court made
clear in Kimbrough that a district court could consider the crack-cocaine disparity
in fashioning a reasonable sentence.
Id. Accordingly, we reverse Louis’s sentence
and remand for resentencing.
JOSEPH JOHNSON,
Johnson argues that the government presented insufficient evidence to
support his convictions because they did not demonstrate that the firearms were
connected with interstate commerce or the drug trafficking offense. Johnson also
argues that the evidence was insufficient to support the drug and conspiracy
convictions because it did not show that he was part of the trafficking. Testimony
from a law enforcement official established the nexus between the firearms and
interstate commerce. The discovery of the firearms in close proximity to drugs and
Johnson’s movement towards one of them during the arrest link the firearms to the
drug trafficking offenses. As to the drug and conspiracy convictions, testimony
established that Johnson lived in a residence from which he and his codefendants
manufactured and sold crack cocaine. In addition to testimony pertaining to
specific sales, evidence found in the residence included drugs and paraphernalia
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associated with drug distribution. The evidence is sufficient to support Johnson’s
convictions on the drug and conspiracy charges.
As to his sentence, Johnson argues that the district court erred by sentencing
Johnson to life imprisonment based on the enhanced penalty provision for
recidivists in 21 U.S.C. § 841(b)(1)(B). Johnson had previously pled guilty to
state felony drug charges. The state court withheld adjudication. Johnson argues
that the case should not count as a qualifying offense for the enhancement
provision in § 841(b)(1)(A) because the state court withheld adjudication.
However, this court’s precedent establishes that a state plea of nolo contendre to a
felony offense, followed by a withholding of adjudication, constitutes a prior
conviction for purposes of the enhanced penalties for recidivists in § 841(b). See
United States v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995). Thus, the district court
did not err in sentencing Johnson.
ELEX PIERRE,
Elex Pierre only appeals his 211-month sentence for crack and firearms
offenses. Because the district court’s finding that it could not consider the
crack-cocaine disparity conflicts with the intervening Supreme Court decision in
Kimbrough, 128 S. Ct. at 575, we reverse Pierre’s sentence and remand for
resentencing.
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CONCLUSION
For the foregoing reasons, the convictions of Louisuis, Louis, Johnson and
Pierre, as well as the sentence of Johnson, are AFFIRMED. The sentences of
Louisuis, Louis, and Pierre are REVERSED and REMANDED for resentencing.
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