Filed: Jul. 10, 2013
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Summary: Case: 12-11836 Date Filed: 07/10/2013 Page: 1 of 21 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-11836 _ D.C. Docket No. 2:10-cr-00140-WKW-CSC-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTWOIN HARBISON, a.k.a. Gump, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Alabama _ (July 10, 2013) Before WILSON and COX, Circuit Judges, and VOORHEES, * District Judge. PER CURIAM: * Honorable Richard Voo
Summary: Case: 12-11836 Date Filed: 07/10/2013 Page: 1 of 21 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-11836 _ D.C. Docket No. 2:10-cr-00140-WKW-CSC-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTWOIN HARBISON, a.k.a. Gump, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Alabama _ (July 10, 2013) Before WILSON and COX, Circuit Judges, and VOORHEES, * District Judge. PER CURIAM: * Honorable Richard Voor..
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Case: 12-11836 Date Filed: 07/10/2013 Page: 1 of 21
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11836
________________________
D.C. Docket No. 2:10-cr-00140-WKW-CSC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTWOIN HARBISON,
a.k.a. Gump,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(July 10, 2013)
Before WILSON and COX, Circuit Judges, and VOORHEES, ∗ District Judge.
PER CURIAM:
∗
Honorable Richard Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.
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Antwoin Harbison appeals his conviction and 180-month sentence. After a
three-day trial, Harbison was found guilty of conspiring to lease, rent, use, and
maintain a residence for the purpose of manufacturing, distributing, and using
crack cocaine and cocaine hydrochloride in violation of 21 U.S.C. §§ 856(a)(1) and
846, conspiring to possess with the intent to distribute crack cocaine in violation of
21 U.S.C. § 846, and possession with intent to distribute 28 grams or more of crack
cocaine in violation of 21 U.S.C. § 841(a)(1). On appeal, Harbison contends that
the original search warrant issued violated the Fourth Amendment’s particularity
requirement and that the denial of his motion for mistrial based upon an alleged
violation of Rule 16(a)(1)(A) constitutes reversible error. Harbison also challenges
the imposition of four sentencing enhancements, namely: (1) U.S.S.G.
' 2D1.1(b)(1), for possession of a firearm; (2) ' 2D1.1(b)(12), for maintaining a
premises for the purpose of manufacturing drugs; (3) ' 3B1.1(c), for assuming a
leadership role in respect to his offenses; and (4) '' 2D1.1(e)(1) and 3A1.1(b)(1),
for committing a sexual offense against, and distributing crack cocaine to, a
vulnerable victim. For the following reasons, we affirm on all accounts.
I.
A. Constitutionality of Search Warrant
We first consider whether the search warrants issued for Harbison’s
residence were sufficiently particular under the Fourth Amendment despite
2
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inclusion of an erroneous street address. Prior to trial, Harbison unsuccessfully
moved to suppress the evidence seized during the search as well as any fruit
derived from execution of the search warrants.1 We review a “district court’s
denial of a defendant’s motion to suppress under a mixed standard of review,
examining the district court’s findings of fact for clear error and the district court’s
application of law to those facts de novo.” United States v. King, 509 F.3d 1338,
1341 (11th Cir.2007) (per curiam).
The physical evidence introduced at trial during the Government’s case-in-
chief was obtained after a search of Harbison’s mobile home located in Prattville,
Alabama. 2 The search warrant described the property as “1563” while the target
trailer had the number “1551” on it. Harbison’s mobile home was one of four
trailers located on a lot that could only be accessed by an unpaved and unmarked
dirt road off of Alabama Highway 14 in an unincorporated area of Autauga
County. At the time law enforcement sought to obtain the first search warrant,
1
Upon referral for recommended disposition of Harbison’s motion to suppress, the
magistrate judge found that the officers’ knowledge and prior experience at the residence,
combined with the description within the warrant, supported a decision upholding the search
warrant as sufficiently particular. The presiding district judge adopted the magistrate’s findings
and recommendation.
2
There were a total of three search warrants executed at Haribson’s residence in
connection with this investigation; the respective dates are April 9, 2010, July 9, 2010, and July
29, 2010. All of the search warrants included the same address and physical description. The 28
grams or more of crack cocaine charged in the indictment was seized in connection with the first
search on April 9, 2010. A smaller quantity of crack cocaine was seized in connection with the
second search on July 9, 2010.
3
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surveillance had been undertaken from a wooded area surrounding the property but
law enforcement had not been able to ascertain a residence number. Law
enforcement obtained the address to include in the search warrant application from
the Prattville City Map Book (“City Map Book”). The City Map Book identified
the unpaved road leading from Highway 14 to the property the trailer sat on as
“1563.”
As a result of this discrepancy, Harbison contends that the officers were left
“with no way of determining the correct trailer to search.” Specifically, Harbison
claims that because the City Map Book did not identify four different trailers on
the property, all allegedly similar in appearance, the physical description provided
in the warrant was insufficient to remedy inclusion of the erroroneous street
address.3
Our decision in United States v. Burke controls. 784 F.2d 1090 (11th Cir.
1986). In Burke, we explained:
A warrant’s description of the place to be searched is not
required to meet technical requirements or have the specificity sought
by conveyancers. The warrant need only describe the place to be
searched with sufficient particularity to direct the searcher, to confine
his examination to the place described, and to advise those being
searched of his authority. An erroneous description of premises to be
3
The physical description provided in the initial search warrant read in pertinent part: “a
light colored mobile home trimmed in red with a wooden front porch.” The warrant further
instructed “as you turn and go up the driveway, it is the third mobile home on the left” and that
“the unique feature of the trailer that clearly distinguished it from all other mobile homes on the
lot – there was an aggressive pit bull chained to the wooden porch.”
4
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searched does not necessarily render a warrant invalid. The Fourth
Amendment requires only that the search warrant describe the
premises in such a way that the searching officer may with reasonable
effort ascertain and identify the place intended.
784 F.2d at 1092 (internal quotation marks omitted) (quoting United States v.
Weinstein, 762 F.2d 1522, 1532 (11th Cir.1985) (finding search warrant’s
erroneous description − southwest versus northwest corner of building − did not
invalidate warrant under particularity requirement). In Burke, the search warrant
at issue included the wrong street address and building number, yet contained the
correct apartment number as well as a physical description of the building. 784
F.2d at 1092. The Burke panel held that the search warrant described the premises
to be searched with sufficient particularity given 1) the detailed physical
description within the warrant; and 2) because the officer who had visited the
premises with the confidential informant prior to seeking the warrant pointed out
the exact location to the officer tasked with executing the warrant. Id. at
1092−1093. Under these circumstances, the warrant was sufficiently particular
“to direct the officers to the correct apartment, to confine the officers’ examination
to that apartment, and to place the occupants on sufficient notice of the officers’
authority to search the premises.”4 Id., 784 F.2d at 1093.
4
Harbison doesn’t appear to challenge the scope of the officers’ search or to contend
that the search warrant failed to provide sufficient notice of the officer’s authority to search.
5
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Like Burke, the physical description of the target residence, as well as law
enforcement’s familiarity with the property based on surveillance, puts to rest
Harbison’s contention that the officers did not have sufficiently particular
information. Here, prior to execution of the original search warrant, Narcotics
Investigators Mark Harrell and Clint Lee briefed the Prattville Police Department’s
SWAT Team, whose members were tasked with executing the warrant. Harrell
and Lee had participated in all phases of the investigation, including the
surveillance, and were familiar with the target trailer. Harrell and Lee even drove
the SWAT Team to 1563 Highway 14 West and directed SWAT where to go. As
Harbison’s appellate counsel conceded during argument, the search warrant in this
case is properly upheld as sufficiently particular.
B. Motion For Mistrial
We next consider whether Harbison’s motion for mistrial pursuant to an
alleged violation of Fed. R. Crim. P. 16(a)(1)(A) was properly denied by the
district court. We review the district court’s denial of a motion for mistrial for an
abuse of discretion. See United States v. Perez-Oliveros, 479 F.3d 779, 782 (11th
Cir. 2007); United States v. Martinez,
763 F.2d 1297, 1312 (11th Cir. 1985) (citing
Fed. R. Crim. P. 33; United States v. Russo,
717 F.2d 545, 550 (11th Cir. 1983)).
Testifying about the circumstances surrounding execution of the second
search warrant, Investigator Clint Lee stated, “[w]hile we were outside discussing
6
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among the investigators whether we were going to arrest Mr. Harbison that day or
seek a warrant at a later time, [Harbison] piped up and said, y’all can’t make
nothing stick on me.” Harbison’s counsel moved for a mistrial at the conclusion of
Investigator Lee’s testimony and argued that nondisclosure violated Rule 16 and
prejudiced Harbison. The motion was denied. 5
Because Harbison’s oral statement was not subject to the mandatory pretrial
disclosure requirements within Rule 16(a)(1)(A), there was no discovery violation
and no abuse of discretion by the trial judge. Rule 16(a), which governs the
Government’s obligation to disclose information to the Defendant, reads in
pertinent part:
(1) Information Subject to Disclosure.
(A) Defendant’s Oral Statement. Upon a defendant’s request,
the government must disclose to the defendant the substance of any
relevant oral statement made by the defendant, before or after arrest,
in response to interrogation by a person the defendant knew was a
government agent if the government intends to use the statement at
trial.
Fed. R. Crim. P. 16(a)(1)(A). The Government’s duty to disclose an oral statement
made by the Defendant is triggered by the following: 1) the oral statement is made
in response to interrogation by a person Defendant knew was a government agent;
5
Trial counsel failed to request any less drastic sanction or propose any curative
instruction be given to the jury following Lee’s testimony. In addition, when the motion for
mistrial was denied, defense counsel failed to pursue the matter further.
7
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and 2) the Government intends to use the statement at trial. Id. Under Rule 16, the
following is not subject to disclosure:
Except as Rule 16(a)(1) provides otherwise, this rule does not
authorize the discovery or inspection of reports, memoranda, or other
internal government documents made by an attorney for the
government or other government agent in connection with
investigating or prosecuting the case. Nor does this rule authorize the
discovery or inspection of statements made by prospective
government witnesses except as provided in 18 U.S.C. § 3500.
Fed. R. Crim. P. 16(a)(2).6 Lee had no written notes documenting the alleged
statement but reportedly informed the Government about the statement at least two
weeks before trial. The Government’s obligation to disclose discoverable material
is a continuing duty. Fed. R. Crim. P. 16(c).
We conclude that Rule 16 did not require disclosure of Harbison’s statement
because the statement was made voluntarily and spontaneously as opposed to being
elicited by law enforcement during interrogation. See, e.g., United States v. Taylor,
417 F.3d 1176, 1181 (11th Cir. 2005) (per curiam) (no discovery violation under
Rule 16(a)(1)(A) given that defendant’s statement was not made during
interrogation by government agent); United States v. Bailey,
123 F.3d 1381, 1399
(11th Cir. 1997) (same). Lee testified that Harbison’s statement was spontaneous,
6
In addition to the federal rule, the Middle District of Alabama has adopted a Local
Criminal Rule 16.1 that eliminates the need for a defendant to request disclosure or file a motion
to that end. See M.D. Ala. L.R. 16.1. The local rule simply incorporates the federal rule while
attempting to build in certain efficiencies. Despite disagreement at trial, the Government
concedes on appeal that Harbison was not required to make a formal request for disclosure of
any statements under Local Rule 16.1.
8
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that Harbison appeared to be directing this response to the other officers, and that
he had not posed any questions to Harbison prior to the statement.
Moreover, even if the statement fell within Rule 16(a)(1)(A), Harbison is
unable to show the requisite prejudice or that granting a mistrial would have been
the most appropriate remedy. 7 In considering the denial of a motion for mistrial
for a different alleged violation of Rule 16, we stated:
Violations of Rule 16 will result in a reversal of conviction only
if such a violation prejudices a defendant’s substantial rights. In
determining the proper remedy for the government’s violation of
discovery rules, the Court must consider how the violation affected
the defendant’s ability to present a defense. Furthermore, where it is
apparent . . . that [the] defense strategy may have been determined by
the failure to [disclose], there should be a new trial. In other words,
actual prejudice must be shown.
United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir.1999) (alterations in
original) (internal citations and quotation marks omitted) (trial judge did not abuse
discretion in denying defendant’s motion for mistrial for purported discovery
7
Rule 16 speaks to the types of sanctions available in the event of a violation:
(2) Failure to Comply. If a party fails to comply with this rule, the court
may:
(A) order that party to permit the discovery or inspection; specify its time,
place, and manner; and prescribe other just terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the undisclosed evidence; or
(D) enter any other order that is just under the circumstances.
Fed. R. Crim. P. 16(d)(2).
9
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violation where defendant was unable to show that failure to disclose existence of
expert adversely affected ability to present a defense).
As for prejudice to the Defendant, the statement that purportedly came as a
surprise to defense counsel was Harbison’s own statement. More importantly,
defense counsel had the opportunity to cross-examine Lee and ask in the jury’s
presence whether the “y’all can’t make nuthin’ stick” statement could have been
made by someone who felt he was being wrongly accused. In terms of impact on
Harbison’s defense, trial counsel contended that the Government’s nondisclosure
prevented him from interviewing Lee’s counterpart, Investigator Harrell, to test
Lee’s testimony against Harrell’s memory and recollection. No other prejudice
was asserted. Similarly, there was no objection to the prosecution’s opening
statement when the statement was first mentioned in the presence of the jury,
which tends to show that defense counsel either knew about the statement or did
not consider it significantly damaging or prejudicial.
We further note that the Government presented overwhelming independent
evidence of Harbison’s guilt. See, e.g., United States v. Capers, 708 F.3d 1286,
1298 (11th Cir. 2013) (government’s failure to comply with Standing Order on
Discovery may be rendered harmless where there is substantial independent
evidence of guilt), petitions for cert. filed, May 15 & June 3, 2013 (Nos. 12-
10378, 12-10635). For this reason, we find that Harbison is unable to show actual
10
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prejudice and any error with respect to admission of Defendant’s statement was
harmless.
II.
With respect to his sentence, Harbison contends that four different guideline
enhancements were improperly applied. We review the district court’s findings of
facts supporting an enhancement for clear error, and the application of the
Sentencing Guidelines to those facts de novo. 8 United States v. Pham, 463 F.3d
1239, 1245 (11th Cir. 2006) (per curiam). “When a defendant objects to a factual
finding that is to be used as a basis for sentencing, the government bears the
burden to establish the disputed fact by a preponderance of the evidence.” United
States v. Agis-Meza,
99 F.3d 1052, 1055 (11th Cir. 1996). Although the
preponderance standard is a relaxed evidentiary standard, it “does not grant the
court a license to sentence a defendant in the absence of sufficient evidence.” Id.
We first take up those sentencing matters Harbison’s counsel advanced most
forcefully during argument.
A. Drug Premises Enhancement
Harbison argues that the imposition of the Section 2D1.1(b)(12) “drug
premises” enhancement constituted impermissible double-counting in light of his
8
The 2011 version of the United States Sentencing Guidelines was applied in this case.
11
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conviction under 21 U.S.C. § 856(a)(1) based upon the same underlying conduct. 9
Effective November 1, 2010, the Guidelines provide for application of a
two-level enhancement for maintaining a premises for the purpose of
manufacturing or distributing a controlled substance. U.S.S.G. § 2D1.1(b)(12) &
App. C. Amend. 748 (2010). Our circuit has not yet had an opportunity to consider
application of this enhancement in conjunction with a conviction under §
856(a)(1).
On this record, we conclude that Harbison’s § 2D1.1(b)(12) challenge is
without merit. “Impermissible double counting occurs only when one part of the
Guidelines is applied to increase a defendant’s punishment on account of a kind of
harm that has already been fully accounted for by application of another part of the
Guidelines.” United States v. Matos-Rodriguez, 188 F.3d 1300, 1309−10 (11th
Cir. 1999) (“Double counting during sentencing is permissible if the Sentencing
Commission intended the result, and if the result is permissible because each
section concerns conceptually separate notions related to sentencing.”).
Under § 2D1.1, Harbison’s base offense level was determined pursuant to
his offense conduct relating to the convictions for possession of crack cocaine with
the intent to distribute, and conspiracy to do the same – not conspiracy to maintain
9
Defendant does not challenge the evidentiary basis for the enhancement. Even so, the
Government asserts that because the only issue argued below was double-counting, any other
alleged error is before us for plain error review only. See United States v. Aguillard, 217 F.3d
1319, 1321 (11th Cir. 2000).
12
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a premises for this purpose. U.S.S.G. § 2D1.1.10 Pursuant to the Guidelines,
where multiple offenses are grouped together, the defendant’s base offense level is
determined by the offense guideline that produces the highest offense level.
U.S.S.G. § 3D1.3. Due to § 3D1.3 grouping, Harbison’s base offense level was
driven by the quantity of cocaine involved rather than the maintaining a premises
offense. Id.
Impermissible double-counting only occurs when two Guideline provisions
account for the same offense conduct. Here, absent the § 2D1.1(b)(12)
enhancement, Harbison’s guideline calculation did not reflect or account for the
various additional harms associated with Harbison’s use of his residence to
manufacture or distribute drugs.11 During oral argument, Harbison’s counsel
conceded that the statutory and guideline harms are, in fact, distinct. Accordingly,
we find that it did not constitute impermissible double-counting for the district
court to apply § 2D1.1(b)(12).12
10
Section 2D1.1 sets the applicable base offense level for defendants convicted under 21
U.S.C. § 841. In contrast, if Harbison’s offense level had been calculated based on his conviction
for conspiracy to maintain a premises for the manufacturing of crack cocaine, under 21 U.S.C.
§ 856(a), § 2D1.8 would have applied.
11
A specific harm identified by the government during oral argument included a greater
ability to conceal the drug business by operating from a residence.
12
Although instructive as to evidentiary matters pertaining to § 2D1.1(b)(12), the
supplemental authority cited by the Government does not present the precise legal issue here in
that neither case considers application of the premises enhancement along with an underlying §
856 maintaining a premises conviction. See, e.g., United States v. Miller, 698 F.3d 699, 702 (8th
Cir. 2012), cert. denied,
133 S. Ct. 1296 (2013); United States v. Sanchez,
710 F.3d 724, 729−32
13
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B. Vulnerable Victim Enhancement
Harbison also argues that there was not a sufficient evidentiary basis for the
court to enhance based upon the existence of a “vulnerable victim” pursuant to §§
2D1.1(e)(1) and 3A1.1(b)(1).
The district court’s application of § 3A1.1 presents a mixed question of law
and fact, which we review de novo. United States v. Arguedas, 86 F.3d 1054, 1057
(11th Cir. 1996). “The district court’s determination of a victim’s ‘vulnerability’
is, however, essentially a factual finding to which we give due deference.” Id.
Likewise, we afford “great deference” to the district court’s credibility
determinations at sentencing. United States v. Gregg,
179 F.3d 1312, 1316 (11th
Cir. 1999).
Where a defendant committed, or attempted to commit, a sexual offense
against another individual by distributing, with or without that individual’s
knowledge, a controlled substance to that individual, an enhancement under
' 3A1.1(b)(1) must be imposed by the sentencing court, subject to an exception not
applicable in the instant case.13 See U.S.S.G. § 2D1.1(e)(1).
(7th Cir. 2013) (rejecting defendant’s constitutional challenge to application of § 2D1.1(b)(12)
based upon Ex Post Facto Clause).
13
Commentary to the Guidelines provides that “sexual offense” means “sexual act” or
“sexual contact” as defined in 18 U.S.C. §§ 2246(2) and (3). U.S.S.G. § 2D1.1(e)(1) cmt. n.21
(A).
14
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In turn, § 3A1.1(b)(1) requires that, where “the defendant knew or should
have known that a victim of the offense was a vulnerable victim,” a two-level
enhancement is warranted. U.S.S.G. § 3A1.1(b)(1). For purposes of the
vulnerable victim enhancement, a “vulnerable victim” means a person who (i) is a
victim of the offense of conviction or other relevant conduct, and who (ii) is
“unusually vulnerable due to age, physical or mental condition, or who is
otherwise particularly susceptible to the criminal conduct.” Id. § 3A1.1 cmt. n.2.
We have previously held that, where the defendant provided drugs to a
minor victim, whom the defendant knew suffered from a drug addiction, the
sentencing court properly imposed a two-level vulnerable victim enhancement.
See United States v. Amedeo, 370 F.3d 1305, 1317−18 (11th Cir. 2004) (district
court’s determination regarding application of § 3A1.1 is a factual finding subject
to clear error review). Amedeo teaches that in determining whether a § 3A1.1
vulnerable victim enhancement is applicable, it is appropriate to consider: 1) the
victim’s history of drug use and / or drug addiction; 2) the defendant’s awareness
of the victim’s drug addiction; and 3) the victim’s age. Id., 370 F.3d at 1317−18.
During oral argument, Harbison’s counsel argued that the vulnerable victim
enhancement is intended to apply, and does so typically, in the fraud context.
Counsel suggested that the enhancement is properly applied in fraud cases where a
vulnerable victim such as an elderly, disabled, or handicapped person is targeted
15
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for perpetration of a fraud. While we do not dispute that § 3A1.1 applies in such
circumstances, counsel is unable to distinguish application of § 3A1.1 in Amedeo,
a drug distribution offense, from the instant case. Moreover, we note that other
circuit courts of appeal have contemplated application of § 3A1.1 in arriving at
sentences stemming from convictions for obtaining forced labor and for coercion
and enticement of a minor where the victim is uniquely vulnerable as compared to
the typical victim of such an offense. See, e.g., United States v. Calimlim, 538
F.3d 706, 716−17 (7th Cir. 2008) (upholding § 3A1.1 enhancement with
conviction for obtaining forced labor); United States v. Nielsen,
694 F.3d 1032,
1035−37 (9th Cir. 2012) (remanding on § 3A1.1 enhancement in context of
conviction for coercion and enticement of minor where district court did not
identify a specific factor that made the victim uniquely vulnerable; expressly
stating that the decision does not preclude application of § 3A1.1 in other coercion
and enticement cases).
Counsel next argued, without reference to any authority, that a victim’s
voluntary use of a controlled substance necessarily weighed against application of
the enhancement. We reject this position as well. Section 2D1.1(e)(1) of the
Guidelines contemplates that application of the vulnerable victim enhancement is
appropriate where a controlled substance is made available (distributed) to the
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intended victim of a sexual offense with or without the victim’s knowledge. See
U.S.S.G. § 2D1.1(e)(1).
The district court’s factual findings concerning application of § 3A1.1(b)(1)
are not clearly erroneous. Here, the district court properly found that (1) the
female victim smoked crack cocaine, whether voluntary or involuntarily;
(2) Harbison committed a sexual offense against her; and (3) she was especially
vulnerable, given her age, the age difference between the victim and Harbison, and
the victim’s drug-induced impairment. Harbison essentially asks for a re-weighing
of the evidence, arguing that testimony of witnesses he proffered contradicted the
victim’s written statements and, therefore, preclude application of the
enhancement. 14 However, we afford deference to the district court’s weighing of
the conflicting evidence in the first instance, and we note that the court was
entirely reasonable in crediting the medical report, which documented extensive
injuries consistent with sexual assault. In fact, Harbison did not dispute at
sentencing the notion that the sexual acts committed were not consensual.
Harbison instead posited that the preponderance of the evidence did not establish
that Harbison was the perpetrator of a sexual assault. The district court was within
its perogative and did not err in applying the enhancement.
14
The victim did not testify at sentencing. However, according to the representations of
the Government and the sentencing judge, the medical evidence presented concerning the
victim’s physical condition following the assault was presented as showing conclusively that
there was non-consensual sexual contact.
17
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C. Firearm Enhancement
Next, Harbison argues that the district court erred in applying the firearm
enhancement because, after three thorough searches of his home, a firearm was
never found.
Under § 2D1.1(b)(1), a defendant’s offense level increases by two levels
“[i]f a dangerous weapon (including a firearm) was possessed” in connection with
a drug offense. U.S.S.G. § 2D1.1(b)(1). This two-level increase applies “if the
weapon was present, unless it is clearly improbable that the weapon was connected
with the offense.” Id. § 2D1.1, n. 11 (A).
The government must show that “the firearm was present at the site of the
charged conduct” or that “the defendant possessed a firearm during conduct
associated with the offense of conviction.” United States v. Stallings, 463 F.3d
1218, 1220 (11th Cir. 2006). Once the government meets this burden, the
evidentiary burden shifts to the defendant to demonstrate that a connection
between the weapon and the offense was “clearly improbable.” Id.
The government need not introduce evidence that a firearm was ever
physically found in order to meet its initial burden. See United States v. Audain,
254 F.3d 1286, 1289 (11th Cir. 2001) (§ 2D1.1 enhancement supported by a
preponderance of the evidence where government witness testified that defendant
carried a firearm and defendant did not attempt to discredit the witness’s
18
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testimony). Instead, circumstantial evidence may prove that the defendant
possessed a firearm in connection with his offense. Id.
Here, although Harbison’s home was searched on three occasions and a
firearm was never found, it was not clear error for the court to find that the
enhancement applied, given that: (1) his codefendant, Curtis Lamar Powell, who
lived at Harbison’s home while he committed the instant offenses, told police that
he saw a black and silver firearm in the home during that time; (2) a separate
source told police that there were weapons inside of the home; (3) police found a
magazine and ammunition in the home that were generally consistent with the
codefendant’s description of the firearm; and (4) the magazine and ammunition
were found in Harbison’s bedroom specifically.
Given the district court’s finding that Harbison possessed the firearm, the
burden then shifted to Harbison to show that it was clearly improbable that the
firearm was connected to his offenses. Harbison did not present any evidence or
arguments below to support such a finding.
D. Aggravating Role Enhancement
Harbison also argues that the district court’s application of the aggravating
role enhancement was not supported by a preponderance of the evidence.
Pursuant to § 3B1.1(c), the sentencing court must apply a two-level
enhancement where the defendant was an organizer, leader, manager, or supervisor
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in a sufficiently extensive drug conspiracy. U.S.S.G. § 3B1.1(c). Although
fronting drugs to another does not automatically make a defendant a supervisor,
“the assertion of control or influence over only one individual is enough to support
a § 3B1.1(c) enhancement.” United States v. Jiminez, 224 F.3d 1243, 1251 (11th
Cir. 2000) (upholding the enhancement where a co-conspirator had to consult with
the defendant before agreeing to sell drugs).
Here, it was not clearly erroneous for the sentencing court to find that
Harbison was an organizer, leader, or manager in relation to his offense conduct.
Contrary to Harbison’s argument on appeal, he more than merely fronted drugs to
others. His codefendant, Curtis Powell, testified at trial that: (1) Harbison was the
sole provider of crack cocaine to him; (2) he sold the drugs out of Harbison’s home
at Harbison’s direction; and (3) he used Harbison’s customers at first until he
developed his own, but continued to give proceeds of the sales back to Harbison.
At several intervals of his testimony at trial, Powell indicated that he assisted
Harbison in the sale of drugs and that Harbison directed the sales.
D. Harmless Error
Finally, the sentencing judge explicitly stated that he would have imposed
the same sentence notwithstanding Harbison’s challenge to the various
enhancements. In explaining the reasonableness of the 180 month sentence, the
sentencing judge stated he would so find “irrespective of whether [Harbison’s]
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guideline range fell within 151 to 188 months,” and that given the evidence
presented, “frankly, [he] would have varied up to [180 months] had [he] sustained
some of [Harbison’s] objections.” For this reason, any misapplication of the
enhancement(s) was harmless error at best. See United States v. Keene, 470 F.3d
1347, 1350 (11th Cir. 2006) (otherwise reasonable sentence upheld despite
possible misapplication of § 2B3.1(b)(2)(F) enhancement where district court had
already stated it would impose exactly the same sentence absent application of the
enhancement).
AFFIRMED.
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