In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2895

U NITED S TATES OF A MERICA,
                                                 Plaintiff-Appellee,
                                v.

T IMOTHY H UDDLESTON,
                                             Defendant-Appellant.


            Appeal from the United States District Court
                for the Central District of Illinois.
             No. 07 CR 30011—Jeanne E. Scott, Judge.


       A RGUED M AY 4, 2009—D ECIDED JANUARY 27, 2010




 Before K ANNE and E VANS, Circuit Judges, and D OW,
District Judge.Œ
  D OW, District Judge.      Timothy Huddleston was
charged in a three-count superseding indictment with
possession of a controlled substance with intent to distrib-
ute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B);


Œ
  The Honorable Robert M. Dow, Jr., of the United States
District Court for the Northern District of Illinois, sitting by
designation
2                                               No. 08-2895

possession of a firearm having previously been con-
victed of a felony offense, in violation of 18 U.S.C.
§ 922(g)(1); and possession of a firearm in furtherance of
drug trafficking, in violation of 18 U.S.C. § 924(c). A jury
found Huddleston guilty of all three charges. Prior to
Huddleston’s trial, the district court denied his motion
to suppress evidence seized from him without a search
warrant at the time of his arrest.
  Huddleston now appeals the district court’s decision
to allow the Government to introduce evidence seized
from him. In addition, Huddleston contends that there
was insufficient evidence to support his conviction on
both the intent to distribute charge and the possession of
a firearm in furtherance of a drug-trafficking crime
charge. For the following reasons, we affirm the judg-
ment of the district court.


                      I. Background
  In December 2006, Huddleston was living with his
girlfriend, Tarana White, at 1850 South Wirt Street. Tarana
White rented the Wirt Street house from her parents,
Walter and Dorothy White. On December 30, 2006,
Dorothy White called police and reported that a man—
Huddleston—was in the Wirt Street house with a gun.
The responding officers arrived and stopped a few
houses away, where they spoke with Dorothy White.
Mrs. White told the officers that she owned the house,
which she rented to her daughter, and that Huddleston
did not have permission to be there. In addition,
Mrs. White informed the officers that Huddleston had
No. 08-2895                                              3

threatened her daughter’s life earlier that evening.
Mrs. White told the officers that she had found
Huddleston asleep on the couch in the house holding
what appeared to be a gun, and that, as far as she knew,
he was still asleep. One of the responding officers
testified that he knew that Huddleston had a “violent
felony past” that included charges of aggravated
discharge of a weapon.
  Without obtaining a search warrant, the officers
opened the door to the Wirt Street house and announced
their presence. They observed Huddleston asleep on the
couch; he did not respond. The officers then entered the
house, confirmed that Huddleston had a gun in his
hand, and disarmed and arrested him. The gun was a
loaded .44-caliber revolver. While searching Huddleston
incident to the arrest, the officers found what appeared
to be crack cocaine in Huddleston’s pockets. The
officers removed a larger bag of the substance from
Huddleston’s front pants pocket and a smaller bag from
his jacket pocket. Forensic analysis later confirmed that
the larger bag contained 5.2 grams of cocaine base
(crack), and the smaller bag contained .4 grams of cocaine
base.
  Huddleston was charged with (1) possession of a con-
trolled substance with intent to distribute; (2) possession
of a firearm having previously been convicted of a
felony offense; and (3) possession of a firearm in fur-
therance of drug trafficking. After an evidentiary hearing,
the Magistrate Judge prepared a lengthy report and
recommendation in which he recommended that
4                                             No. 08-2895

Huddleston’s motion to quash his arrest and suppress
evidence be denied under both the apparent authority
consent and exigent circumstances exceptions to the
warrant requirement. The District Court overruled
Huddleston’s objections and adopted the Magistrate
Judge’s report and recommendation, finding that the
warrantless entry was justified by the existence of
exigent circumstances. Following a jury trial, Huddleston
was convicted of all charges against him and was sen-
tenced to a term of 180 months’ imprisonment, consisting
of 120 months on Count I and 85 months on Count 2, to
run concurrently, and 60 months on Count 3, to run
consecutively to the imprisonment for Counts 1 and 2.


                      II. Analysis
    A. Motion to Suppress
  Prior to his trial, Huddleston moved to suppress evi-
dence of the weapon and drugs seized by officers following
the warrantless entry into the Wirt Street house. The
district court denied the motion, finding that exigent
circumstances existed justifying an exception to the
warrant requirement.
  Warrantless searches and seizures within a home are
considered presumptively unreasonable and a violation
of the Fourth Amendment. United States v. Bell, 

, 612 (7th Cir. 2007). However, warrantless searches
are constitutionally permissible “under certain narrowly
proscribed exceptions,” including where exigent circum-
stances require officers to “step in to prevent serious
No. 08-2895                                                 5

injury and restore order.” 

whether
exigent circumstances existed, courts “analyze the
situation from the perspective of the officers at the
scene.” Leaf v. Shelnutt, 

, 1081 (7th Cir. 2005).
“Exigent circumstances exist if a[n] officer had an objec-
tively ‘reasonable belief that there was a compelling need
to act and no time to obtain a warrant.’ ” 

(quoting United States v. Andrews, 

, 1000 (7th
Cir. 2006)). For example, where police reasonably
believe that their safety, or the safety of the public, may be
threatened, exigent circumstances exist. United States v.
Webb, 

, 916 (7th Cir. 1996). In reviewing a
district court’s denial of a motion to suppress, this
Court reviews factual findings for clear error and legal
questions de novo. 

. The question
of whether exigent circumstances existed is a mixed
question of fact and law, reviewed under a de novo stan-
dard. 

officers were told that Huddleston—whom
they knew to have a criminal history involving the dis-
charge of a firearm—had a gun and was trespassing in
the home of a woman whom he had threatened to kill
earlier that evening. Based on those facts, it was rea-
sonable for the officers to conclude that they were
dealing with an armed man poised to carry out a death
threat, who would not hesitate to discharge his weapon
as he had in the past. In these circumstances, the officers
had reasonable grounds to believe that Huddleston
posed an immediate threat to their safety and the safety
of others in the neighborhood. A number of other
circuits have “found the presence of guns to justify
6                                                No. 08-2895

searches and seizures on the basis of exigent circum-
stances.” United States v. Reed, 

, 643 (4th
Cir. 1991) (holding that the presence of a sawed-off shot-
gun in plain view could have constituted a threat to the
personal safety of the officers and thus justified the
warrantless seizure); see also United States v. Rodgers, 

, 222-23 (11th Cir. 1991) (exigent circumstances
arose when police saw handguns that suspect, a
convicted felon, was not allowed to possess, lying on a
couch); United States v. Lindsey, 

, 780-82 (9th
Cir. 1989) (information about presence of guns and
bombs justified warrantless entry); United States v. Hill,

, 1170 (8th Cir. 1984) (entry justified by
officer’s observation through a sliding glass door of a
pistol on a bookcase); United States v. McKinney, 

, 1186 (D.C. Cir. 1973) (sawed-off shotgun lying
on night table in hotel room was exigent circumstance
justifying warrantless entry and seizure).
  The fact that Huddleston was asleep does not render
the officers’ belief that Huddleston posed an immediate
threat unreasonable. As the district court concluded, there
was a real risk that Huddleston—who was fully clothed,
sitting up and holding the gun—could awaken at any
time. Nor are we persuaded that it was unreasonable for
the officers to conclude that Huddleston was trespassing
without inquiring as to whether he had Tarana White’s
permission to be at the house. Dorothy White had in-
formed the officers that Huddleston did not have permis-
sion to be there; that information justified their belief that
he was trespassing. Again, our inquiry focuses on “the
circumstances as they appeared at the moment of entry,”
No. 08-2895                                                  7

United States v. Arch, 

, 1304 (7th Cir. 1993),
“from the perspective of the officers at the scene.” 

. “Accordingly, we ask not what the police
could have done,” but whether their entry was justified
based on what they knew at the time. United States v.
Marshall, 

, 482 (7th Cir. 1998). Here, based on
the information provided by Dorothy White, the offi-
cers’ belief that Huddleston was trespassing was reason-
able.1 In short, we agree with the district court that the
warrantless search fell within the exigent circumstances
exception to the warrant requirement.2


    B. Sufficiency of the Evidence Challenge to Count 1
  Huddleston also contends that the evidence presented
at trial was insufficient to support a finding that he in-
tended to distribute the cocaine base. In considering a
sufficiency of the evidence challenge, this Court considers
the evidence in the light most favorable to the Govern-

1
  The fact that Huddleston actually may not have been a
trespasser does not change the analysis. The sources of the
danger giving rise to the exigent circumstances were the
gun thought to be in Huddleston’s possession, the threats
that he had made earlier in the evening, and his known
violent past—any of which separately may have justified the
officers’ actions and all of which collectively clearly did so.
2
  Because we have found that the exigent circumstances
exception defeats Huddleston’s Fourth Amendment challenge,
we need not address whether the apparent authority consent
exception also applies in the circumstances of this case, as
the Government urges and the Magistrate Judge concluded.
8                                               No. 08-2895

ment, defers to the credibility determination of the jury,
and overturns a verdict only when the record contains
no evidence, regardless of how it is weighed, from
which the jury could find guilt beyond a reasonable
doubt. United States v. Duran, 

, 839 (7th Cir.
2005). Thus, “[t]he standard of review facing a defendant
on her claim that the jury had insufficient evidence to
convict is ‘a daunting one.’ ” United States v. Seymour, 

, 714 (7th Cir. 2008).
  Here, the Government presented sufficient evidence
to support the inference of an intention to distribute.
Officers seized 5.6 grams of cocaine base from
Huddleston at the time of his arrest. A drug-trafficking
expert testified at trial that 5.6 grams constituted a
distributable amount. And even if 5.6 grams is not “so
large as immediately to suggest an intention to
distribute, [it] is not so small as to be inconsistent with
that inference,” and the jury heard other evidence
from which to infer that intent. United States v. Brown,

, 656 (7th Cir. 1993) (concluding that the
seizure of only 2.3 grams of crack was not inconsistent
with an inference of intent to distribute). For example,
Huddleston was carrying a loaded firearm. This Court
has recognized that “weapons found in conjunction
with narcotics may be considered ‘tools of the trade,’ and
that the presence of a firearm under such circumstances
supports the inference of an intent to distribute.” 

held a smaller quantity of
drugs— .4 grams—in his coat pocket, and a larger quantity
in his pants pocket. The jury reasonably could have
inferred that the smaller quantity was ready for sale.
Huddleston also was carrying a significant amount of
No. 08-2895                                                 9

cash, including twelve twenty dollar bills, at the time of
his arrest. This evidence, combined with the fact that
Huddleston was unemployed and the drug-trafficking
expert’s testimony that addicts typically purchase one-
tenth of a gram of crack for twenty dollars, supports the
inference that Huddleston was selling drugs.
   While the evidence may not have been overwhelming,
it was sufficient to support the jury’s verdict. Because
the record is not “devoid of evidence from which a rea-
sonable jury could find . . . beyond a reasonable doubt”
that Huddleston intended to distribute the drugs found
in his possession, his conviction on Count 1 of the super-
seding indictment must be upheld. 

.


  C. Sufficiency of the Evidence Challenge to Count 3
  Finally, Huddleston challenges his conviction for posses-
sion of a firearm in furtherance of a drug-trafficking
crime on the ground of insufficient evidence. We have
explained that “[t]he ‘in furtherance of’ element requires
that the weapon further, advance, move forward, promote
or facilitate the drug-trafficking crime.” 

. The mere presence of a weapon at the scene of a
drug crime is not sufficient to satisfy the ‘in furtherance
of’ element; “there must be ‘a showing of some nexus
between the firearm and the drug selling opera-
tion’ ”—for example, “that a possessed gun [furthered] a
drug-trafficking offense by providing the dealer, his
stash or his territory with protection.” 

between “this type of possession-for-protection” and
“circumstantial or innocent weapon possession,” we are
10                                               No. 08-2895

guided primarily by common sense. 

the
following factors also may be useful to consider: “the
type of drug activity that is being conducted, accessibility
of the firearm, the type of the weapon, whether the
weapon is stolen, the status of the possession (legitimate
or illegal), whether the gun is loaded, proximity to
drugs or drug profits, and the time and circumstances
under which the gun is found.” 

States
v. Ceballos-Torres, 

, 414-15 (5th Cir.), modified
on denial of rehearing, 

(5th Cir. 2000)).
  Here, a number of the pertinent factors support the
inference that Huddleston did not possess the gun inno-
cently, but rather to protect himself, his stash, and
his profits. First, the drug activity at issue—distrib-
ution—might reasonably call for the use of a weapon for
protection, both during the drug deals and afterward to
protect the remaining stash and profits. Second, the gun
was in Huddleston’s hand, and thus highly accessible.
Third, the type of gun—a revolver—easily could be
concealed and carried to drug transactions. Fourth, the
gun was loaded. And fifth, the gun was found within a
few inches of the drugs. In addition, common sense
supports a finding that Huddleston’s gun protected his
drugs and money against robbery. This plainly was not
a case of “innocent possession of a wall-mounted antique
or an unloaded hunting rifle locked in a cupboard.”

(quoting United States v. Mackey,

, 461 (6th Cir. 2001)). Huddleston held the
loaded weapon in his hand, and had drugs and sub-
stantial sums of cash in his pockets. In light of these facts,
a reasonable jury easily could have concluded that
No. 08-2895                                            11

Huddleston possessed the gun to protect himself and his
stash, in furtherance of his distribution of cocaine base.
  Huddleston argues that the Government improperly
has presented inconsistent theories as to why he
possessed the gun, arguing at the suppression hearing
that Huddleston had the gun because he intended to
attack Tarana White, and arguing at trial that the gun
was protecting his stash of drugs. But these theories
are not necessarily inconsistent; Huddleston conceivably
could have intended to use the gun both to assault his
girlfriend and to provide protection for himself. To the
extent that Huddleston overlooks these dual purposes,
he misapprehends the Government’s contentions. The
Government argues that, at the time the responding
officers entered the Wirt Street house, they reasonably
could have believed that Huddleston intended to attack
his girlfriend with the gun. As discussed above, we
agree. The Government also contends that the discovery
of the drugs and cash on Huddleston supports the
further inference or conclusion that Huddleston
possessed the gun to further his drug dealing. Again, we
agree. For all these reasons, there was ample evidence
to support the conviction on Count 3.


                     III. Conclusion
  For the above stated reasons, the judgment of the
district court is A FFIRMED.



                          1-27-10