United States v. Clifford Strong Ferguson , 343 F. App'x 425 ( 2009 )


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  •                                                             [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    Aug. 24, 2009
    No. 08-10937                  THOMAS K. KAHN
    Non-Argument Calendar                 CLERK
    ________________________
    D. C. Docket No. 07-00025-CR-W-N
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    CLIFFORD STRONG FERGUSON,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Alabama
    _________________________
    (August 24, 2009)
    Before CARNES, MARCUS and ANDERSON, Circuit Judges.
    PER CURIAM:
    Clifford Strong Ferguson appeals his convictions for possession with intent
    to distribute marijuana, in violation of 
    21 U.S.C. § 841
    (a)(1), and possession of
    firearms in furtherance of distribution of marijuana, in violation of 
    18 U.S.C. § 924
    (c)(1)(A)(I). He makes three contentions: (1) the government made improper
    statements during its closing argument; (2) there is insufficient evidence to support
    his convictions; and (3) the district court plainly erred in giving the jury a
    “deliberate ignorance” instruction.
    I.
    Ferguson first contends that the government made several improper
    statements during closing argument. Because Ferguson failed to object during the
    government’s closing argument at trial, we review it only for plain error. United
    States v. Granville, 
    716 F.2d 819
    , 821 (11th Cir. 1983). “The four prongs of plain
    error review are: (1) there must be error; (2) the error must be plain; (3) the error
    must affect the appellant’s substantial rights; and (4) the error must seriously affect
    the fairness, integrity, or public reputation of judicial proceedings.” United States
    v. Novaton, 
    271 F.3d 968
    , 1014 (11th Cir. 2001) (quotation marks and alteration
    omitted). We will not correct any error unless all four requirements are met. See
    
    id.
     “Meeting all four prongs is difficult, as it should be.” United States v. Puckett,
    __ U.S. ___, 
    129 S. Ct. 1423
    , 1429 (2009), and in our review we must consider
    “the strength of the evidence against [the] defendant[].” United States v. Stout,
    2
    
    667 F.2d 1347
    , 1354 (11th Cir. 1982).
    Ferguson argues that the evidence of guilt in this case was not
    overwhelming. We disagree. When the police officers stopped Ferguson for a
    traffic violation, they smelled the odor of marijuana coming from his van. That
    odor was emanating from bag in the back of the van. The bag contained six
    pounds of marijuana, stored in six gallon-sized bags. The bag also contained two
    handguns, one of which Ferguson admitted was his. Ferguson told the police
    officers that he was carrying the bag to Kentucky for someone he knew only as
    “Jock” and that “Jock” was going to pay him for transporting the bag.
    Although the government may have made some improper statements during
    closing argument, such as when it asked the jury to draw on its knowledge about
    drug dealing from watching television, those statements did not affect Ferguson’s
    substantial rights because there is no reasonable probability that he would have
    been acquitted otherwise. See United States v. Wilson, 
    149 F.3d 1298
    , 1301 (11th
    Cir. 1998) (“A defendant’s substantial rights are prejudicially affected when a
    reasonable probability arises that, but for the [government’s] remarks, the outcome
    of the trial would have been different.”). Additionally, the stain of any improper
    argument was washed out when the district court properly instructed the jury that
    arguments by the attorneys were not evidence. See United States v. Smith, 918
    
    3 F.2d 1551
    , 1562 (11th Cir. 1990). Ferguson has failed to demonstrate that the
    government’s closing arguments constitute plain error.
    II.
    Ferguson also contends that there was insufficient evidence to support his
    convictions. We review de novo the sufficiency of the evidence to support a
    conviction, but “view the evidence in the light most favorable to the government.”
    United States v. Herrera, 
    931 F.2d 761
    , 762 (11th Cir. 1991).
    Ferguson argues that the quantity of marijuana alone is insufficient evidence
    of his intent to distribute it. He notes that the government did not find any scales
    or smaller bags for repackaging the marijuana for resale. He insists that he was
    carrying the six gallon-sized bags of pot for personal use and that it makes
    economic sense to buy drugs in bulk. Buying wholesale, after all, is cheaper than
    buying retail. That argument fails. Intent to distribute can be inferred from the
    quantity of the drugs. See United States v. Perez-Tosta, 
    36 F.3d 1552
    , 1559 (11th
    Cir. 1994). The jury chose to make that inference instead of accepting Ferguson’s
    explanation that the six pounds of marijuana were for personal use. That was a
    reasonable inference based on the evidence, and it is sufficient to support the
    conviction. See United States v. Hernandez, 
    896 F.2d 513
    , 517 (11th Cir. 1990).
    Ferguson also argues that the proximity of the guns to the drugs was
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    insufficient to support a conviction for possession a firearm “in furtherance” of
    drug trafficking. He argues that the handguns were not readily accessible because
    they were in a bag in the back of the van. Again, those arguments fail. The
    presence of two loaded firearms in the same bag as the marijuana supports the
    necessary nexus “between the firearm and the drug selling operation.” See United
    States v. Mercer, 
    541 F.3d 1070
    , 1076–77 (11th Cir. 2008). As we recognized in
    United States v. Miranda, a reasonable jury could infer that the purpose of storing
    guns next to the drugs “was to provide defense or deterrence in furtherance of the
    drug trafficking.” 
    425 F.3d 953
    , 962 (11th Cir. 2005) (internal quotation marks
    omitted); see also Mercer, 
    541 F.3d at 1077
     (holding that the “in furtherance”
    element was satisfied where the firearm was “hidden in a pouch under the
    mattress” in the defendant’s motel room); United States v. Molina, 
    443 F.3d 824
    ,
    830 (11th Cir. 2006) (holding that the “in furtherance” element was satisfied where
    the gun was found in the drawer of a nightstand in the defendant’s bedroom).
    Sufficient evidence supports Ferguson’s conviction for possession of a firearm in
    furtherance of marijuana distribution.
    III.
    Ferguson contends that it was improper for the district court to give a
    “deliberate ignorance” jury instruction. Because Ferguson failed to object to that
    5
    instruction at trial, we review it only for plain error. See Granville, 
    716 F.2d at 821
    . The district court instructed the jury that it could convict Ferguson based on
    actual knowledge or deliberate ignorance. As we have already explained, the
    government presented sufficient evidence to support a conviction based on actual
    knowledge. Ferguson’s contention is therefore knocked out by our decisions in
    United States v. Stone, 
    9 F.3d 934
     (11th Cir. 1993), and United States v. Kennard,
    
    472 F.3d 851
     (11th Cir. 2006). In Kennard we reiterated that “any error in giving
    an unwarranted deliberate ignorance instruction is harmless if the jury could have
    convicted on an alternative, sufficiently supported theory of actual knowledge.”
    Kennard, 
    472 F.3d at
    858 (citing Stone, 
    9 F.3d at
    937–40). We must assume that
    the jury followed its instructions and would not have convicted Ferguson under
    either theory unless he was guilty beyond a reasonable doubt. See Stone, 
    9 F.3d at 938
    . Because of that assumption “any shortcoming in the evidence about
    deliberate ignorance was rendered harmless by the sufficiency of evidence of
    actual knowledge.” Kennard, 427 F.3d at 858. Even assuming that a deliberate
    ignorance instruction was improper, the error was harmless. Therefore, the district
    court did not plainly err.
    AFFIRMED.
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