United States v. Patrick Fitzgerald Porter , 293 F. App'x 700 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 9, 2008
No. 07-14627 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00339-CR-J-33-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK FITZGERALD PORTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 9, 2008)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Patrick Porter was convicted on seventeen drug and weapons counts, and he
now appeals his convictions on fourteen of those counts and his sentence.
I.
The following are the facts in the light most favorable to the government,
drawing all reasonable inferences in favor of the jury’s verdict, which is how we
are required to view them at this stage in the proceedings. United States v.
Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007).
During the early part of 2005 Porter began buying and reselling large
quantities of powder and crack cocaine. Eventually he was purchasing a total of
about five ounces of cocaine—around $4000 worth—per week. Over the course
of several months Porter bought between two and two-and-a-half kilograms of
cocaine for approximately $60,000.
On several occasions while buying drugs, Porter’s customers saw him with
one of a few different pistols either on his person or in his car. One of these times
was when Porter went to collect money from a delinquent customer and, upon
finding him gone, showed a semi-automatic pistol to one of the customer’s
housemates and demanded to know where the customer was. Another time Porter
threatened to shoot up the house if he was not paid the money he was owed. One
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witness testified to giving Porter two pistols as collateral on a drug debt owed by
the witness’ girlfriend.
Porter’s association with guns was not without consequences. On May 22,
2005 Porter apparently accidentally shot himself in the ankle and had to go to the
emergency room. He told a police officer who spoke with him there that he had
been shot by a mugger. The officer saved the bullet that the doctors had removed
from Porter.
On August 22, 2005 Porter and his girlfriend were driving in his car when
he was pulled over for having a tag light. The officer who pulled him over ran
Porter’s license plate number and discovered that Porter owned the car and that he
had previous felony convictions. The officer then wrote Porter a fix-it ticket for
the tag light. Porter, however, insisted on exiting the car to look at the light.
When he did so, he left his door open and another officer at the scene saw the butt
of a gun under the driver’s side floor mat. The officers then arrested Porter and
searched his car.
The gun turned out to be a loaded .25 caliber MP 25 Raven pistol
manufactured in California. Forensic ballistics tests later revealed that the bullet
removed from Porter’s ankle a few months before was consistent with one fired
from the Raven pistol, but there was no way to determine whether the bullet was
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actually fired from that gun. The search of Porter’s car also uncovered a bag
containing 13.5 grams of powder cocaine under the passenger seat and a bag
containing 16.4 grams of crack cocaine wrapped in a black shirt in passenger-side
door well. Subsequent tests failed to produce any discernable fingerprints on the
gun or on either bag of drugs.
After Porter was arrested his wife—not his girlfriend—picked up his
personal effects from the jail where he was held. These included two cellular
phones. While in jail Porter spoke to his wife several times over the phone. Over
the course of these conversations, Porter instructed his wife to answer his cell
phones and collect from various people who owed him money. Porter’s wife
reported back to him on her attempts to collect his money, which were met with
mixed results.
While in jail Porter met Steven Hoskins, another inmate being held on a
drug charge. Porter told Hoskins that he had sold powder and crack cocaine
starting in 2005 and that he kept a gun with him at all times in case of trouble.
Porter went on to say that the gun and drugs found in his car when he was arrested
belonged to him.
A federal grand jury indicted Porter on the following: one count of
conspiracy to distribute crack and powder cocaine in violation of 21 U.S.C. § 846;
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five counts of distributing powder and crack cocaine in violation of 21 U.S.C. §
841(a)(1); two counts of distributing crack cocaine in violation of 21 U.S.C. §
841(a)(1); one count of distributing powder cocaine in violation of 21 U.S.C. §
841(a)(1); seven counts of possessing a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c); and one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g). Porter chose to
represent himself, and the district court appointed him standby counsel. Porter
then pleaded not guilty to all counts. Before trial both parties stipulated that
Porter had prior felony convictions.
At trial the government put on several witnesses who testified to the facts
recounted above. Porter declined to introduce any evidence on his own behalf.
The jury convicted Porter on all seventeen counts. More than seven days after his
conviction but before sentencing Porter filed a motion for new trial, contending
that Hoskins had committed perjury. Porter supported this allegation with an
affidavit from William Koster, another inmate at the jail. Koster alleged in the
affidavit that Hoskins had asked him to testify against Porter and that he saw
Hoskins look through Porter’s legal papers while in jail. Additionally, Porter
contended that the government had impermissibly amended one of the distribution
counts in the indictment. The court denied Porter’s new trial motion.
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The probation office prepared a presentence investigation report. Porter
objected to the PSR, arguing that it impermissibly attributed drug quantities to him
because they had not been found by a jury. At sentencing Porter also objected to
the drug quantity calculation and argued that the mandatory minimum sentence
that applied to his convictions for carrying a firearm in furtherance of a drug
offense was unconstitutional. He also renewed his motion for a new trial.
Porter called three witnesses at sentencing to offer mitigating testimony, one
of whom was Koster. Koster reasserted the allegations in his affidavit but also
admitted to having been convicted of fraud, first-degree attempted murder, and
shooting into an occupied vehicle with a deadly weapon. The court again denied
Porter’s motion.
The district court then proceeded to overrule all of Porter’s objections and
adopt the PSI. Then, after considering the guideline range, the court sentenced
Porter to a total of 182 years imprisonment. Porter, now represented by counsel,
timely appealed.
II.
Porter first contends that the district court erred when it instructed the jury
on one of the distribution charges because the instruction amounted to a
constructive amendment of the indictment. A constructive “amendment occurs
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when the essential elements of the offense contained in the indictment are altered
to broaden the possible bases for conviction beyond what is contained in the
indictment.” United States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990). This is
in contrast to a variance, which “occurs when the facts proved at trial deviate from
the facts contained in the indictment but the essential elements of the offense are
the same.” Id. A constructive “amendment is per se reversible error, while a
variance requires the defendant to show that his rights were substantially
prejudiced by the variance in order to be entitled to a reversal.” Id. at 633. Porter
did not object to the jury instruction either when it was given or earlier, so we
review only for plain error. Id. at 636.
For the part of the conviction that Porter challenges on these grounds, the
indictment charged him with distributing crack cocaine. However, the jury
instruction, as read to the jury by the court, stated that Porter could be found guilty
of that count if he had distributed either cocaine or crack cocaine.
The difference between the jury instruction and the indictment is only about
which controlled substance or substances Porter distributed. Because the statute
does not specify a particular controlled substance, 21 U.S.C. § 841(a)(1), the
identity of the controlled substance that the defendant distributed is not an
“essential element[] of the offense contained in the indictment.” Keller, 916 F.3d
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at 634. Therefore, we have held that there is no constructive amendment simply
because the controlled substance specified in the indictment and the one in the jury
instructions are different. United States v. Rutherford, 175 F.3d 899, 906 (11th
Cir. 1999).
Even if this difference were a variance, it would not be reversible error. For
a variance to be reversible error it must result in substantial prejudice to the
defendant. Keller, 916 F.3d at 633. Porter has not identified any prejudice from
the difference between the indictment and the jury instructions, and he has
therefore waived the issue, Kelliher v. Veneman, 313 F.3d 1270, 1274 n.3 (11th
Cir. 2002). Absent any error, there is no plain error.
III.
Porter next contends that the five counts in the indictment charging him
with distributing both powder and crack cocaine were duplicitous. “A count in an
indictment is duplicitous if it charges two or more ‘separate and distinct’
offenses.” United States v. Schlei, 122 F.3d 944, 977 (11th Cir. 1997). We need
not determine whether these charges were in fact duplicitous because Porter
waived this issue by failing to raise it before trial. See Fed. R. Crim. P.
12(b)(3)(B).
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IV.
Porter’s third contention is that the district court erred in denying his
Federal Rule of Criminal Procedure 33(b)(1) motion for a new trial in light of
Koster’s testimony that Hoskins perjured himself at Porter’s trial. A defendant
who, after trial, discovers evidence previously unknown to the government is
entitled to a new trial only if: “(1) the evidence was in fact discovered after trial;
(2) the defendant exercised due care to discover the evidence; (3) the evidence was
not merely cumulative or impeaching; (4) the evidence was material; and (5) the
evidence was of such a nature that a new trial would probably produce a new
result.” United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995) (citation
and internal quotation marks omitted). We review the denial of a motion for a new
trial only for abuse of discretion. United States v. Thompson, 422 F.3d 1285,
1294–95 (11th Cir. 2005). “‘Motions for a new trial based on newly discovered
evidence are highly disfavored in the Eleventh Circuit and should be granted only
with great caution. Indeed, the defendant bears the burden of justifying a new
trial.’” United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc)
(citation omitted).
Koster’s testimony that Hoskins looked through Porter’s legal papers in jail
and tried to recruit Koster to testify against Porter was relevant only to impeach
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Hoskins, so it fails to meet the third element for obtaining a new trial. Starrett, 55
F.3d at 1554. “The failure to satisfy any one of these elements is fatal to a motion
for new trial.” United States v. Lee, 68 F.3d 1267, 1274 (11th Cir. 1995). The
district court did not err in denying Porter’s motion for a new trial.
V.
Porter’s fourth contention is that the district court erred by not granting his
motion for a judgment of acquittal on each of the seven counts of possessing a
firearm in furtherance of drug trafficking. We review de novo a district court’s
denial of a motion for a judgment of acquittal. United States v. Dulcio, 441 F.3d
1269, 1276 (11th Cir. 2006). In doing so, we consider the evidence in the light
most favorable to the government, drawing all reasonable inferences and
credibility determinations in favor of the jury’s verdict. United States v. Browne,
505 F.3d 1229, 1253 (11th Cir. 2007). “It is not necessary that the evidence
exclude every reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilty,” United States v. Harris, 20 F.3d 445, 453
(11th Cir. 1994), because a “jury is free to choose among reasonable constructions
of the evidence,” United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983)
(quotation marks omitted).
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A defendant is guilty of possessing a firearm in furtherance of a drug
trafficking crime when he: “(1) knowingly (2) possesse[s] a firearm (3) in
furtherance of any drug trafficking crime for which he could be prosecuted in a
court of the United States.” United States v. Woodard, 531 F.3d 1352, 1362 (11th
Cir. 2008).
Porter first argues that the government did not introduce sufficient evidence
on any of the possession of a firearm in furtherance of a drug trafficking offense
counts because there was insufficient evidence to identify the specific firearms he
possessed. This argument is without merit. The term “firearm” in § 924(c)(1) is a
generic one, meaning that the government need not plead or prove that the
defendant possessed a particular gun or kind of gun to prove a violation of the
statute. See United States v. Williams, 334 F.3d 1228, 1231–32 (11th Cir. 2003).
Porter next argues that there was insufficient evidence on the § 924(c)(1)
counts because the drug offenses that the possession of a firearm furthered were
duplicitous. Because we have already held that he waived any claim that his
charges were duplicitous, this argument also fails.
Porter’s third argument is that no reasonable jury could have found him
guilty because the government failed to introduce evidence of the specific dates on
which he possessed the firearm in furtherance of a drug crime. However, proving
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the date a violation occurred is not an element of § 924(c)(1). See also United
States v. Reed, 887 F.2d 1398, 1403 (11th Cir. 1989) (“When the government
charges that an offense occurred ‘on or about’ a certain date, the defendant is on
notice that the charge is not limited to the specific date or dates set out in the
indictment. Proof of a date reasonably near the specified date is sufficient.”
(internal citations omitted)). Further, each of the possession in furtherance counts
was associated with a drug count the approximate date of which was included in
the indictment, and Porter does not argue that there was insufficient evidence of
when the events described in the drug counts occurred.
Porter’s fourth argument is that the evidence at trial was insufficient to
show that he was “carrying” the Raven pistol that was found under the floor mat in
the car when he was arrested because his girlfriend was in the car and arguably
had equal access to the gun. This argument is inapposite. Although § 924(c)(1)
does include the offense of using or carrying a firearm during and in relation to a
drug trafficking crime, Porter was charged with and convicted of possessing a
firearm in furtherance of a drug trafficking crime, which is a different offense.
The two crimes have different elements, and the offense of possessing a firearm in
furtherance of a drug trafficking crime was added to expand the statute after the
Supreme Court’s decision in Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501
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(1995), interpreted the “during and in relation to” language narrowly. See United
States v. Timmons, 283 F.3d 1246, 1249 (11th Cir. 2002). Insofar as Porter’s
argument is that the government did not present enough evidence that he
“possessed” the firearms, we deal with that issue next.
There is sufficient evidence in the record for a reasonable jury to find that
Porter possessed a firearm on each of the occasions for which he was convicted.
“With firearms, possession may be either actual or constructive. Like constructive
possession of drugs, the government can establish constructive possession of a
firearm by proving ‘ownership, dominion, or control over the firearm.” United
States v. Thompson, 473 F.3d 1137, 1143 (11th Cir. 2006) (internal quotation
marks, citations, and alteration omitted). Here, the government produced ample
evidence of Porter possessing firearms during his drug trafficking. Hoskins
testified that Porter admitted to carrying a gun with him at all times while engaged
in drug trafficking. Although this testimony alone would be enough, there is more
evidence. Several witnesses testified that they saw Porter carrying a gun or having
one in his car when they bought drugs from him. Porter obviously had a gun when
he accidentally shot himself. Porter also wielded a gun when he tried to locate his
delinquent customer and threatened to shoot up another witness’ house if he was
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not paid. From all of this, a reasonable jury could conclude that Porter had a
firearm with him when he engaged in each of his drug offenses.
There is also enough evidence for a reasonable jury to conclude that Porter
used firearms in furtherance of drug trafficking crimes. The “in furtherance”
element “requires that the prosecution establish that the firearm helped, furthered,
promoted, or advanced the drug trafficking.” Timmons, 283 F.3d at 1252. This in
turn requires “‘a showing of some nexus between the firearm and the drug selling
operation.’” Id. at 1253 (citation omitted). A non-exclusive list of factors that can
establish this nexus includes: (1) “the type of drug activity that is being
conducted”; (2) “accessibility of the firearm”; (3) “the type of the weapon”; (4)
“whether the weapon is stolen”; (5) “the status of the possession (legitimate or
illegal)”; (6) “whether the gun is loaded”; (7) “proximity to the drugs or drug
profits”; and (8) “the time and circumstances under which the gun is found.” Id.
(quoting United States v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir. 2000)).
Porter’s stated purpose in possessing firearms was for protection while
conducting drug deals. This is one way in which having a “firearm helped,
furthered, promoted, or advanced the drug trafficking.” Timmons, 283 F.3d at
1252. Witnesses testified that they saw Porter’s guns either on his person or in his
car during drug deals, meaning that the weapons were accessible and in close
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proximity to the drugs. One could reasonably infer from the fact that the Raven
pistol was loaded when Porter was arrested and from the fact that an unloaded gun
is ineffective protection that Porter’s guns were loaded when he engaged in drug
trafficking. Finally, at least two of Porter’s guns were not registered to him
because they were given to him as collateral on a drug debt. Considering all of the
above factors we conclude that there was sufficient evidence that the firearms
were possessed in furtherance of drug trafficking.
VI.
Porter next contends that the district court erred in denying his motion for a
judgment of acquittal on the felon in possession count. Again, we review de novo
a district court’s denial of a motion for a judgment of acquittal, “viewing the
evidence in the light most favorable to the government and drawing all reasonable
inferences and credibility choices in favor of the jury’s verdict.” Browne, 505
F.3d at 1253. Porter stipulated at trial that he had been convicted of a felony
before being arrested on August 22, 2005. His argument is that there was
insufficient evidence for a reasonable jury to find that he possessed the firearm
because when the police found it under the driver’s side floor mat both Porter and
his girlfriend were in the car.
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A defendant possesses a firearm within the meaning of the felon in
possession statute, 18 U.S.C. § 922(g), when he actually possesses it or has
constructive possession of it. United States v. Gonzalez, 71 F.3d 819, 834 (11th
Cir. 1996). Because the Raven pistol was not found on Porter’s person, the
question is whether it was constructively in his possession. Id. “Constructive
possession exists when the defendant exercises ownership, dominion, or control
over the item or has the power and intent to exercise dominion or control.” United
States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006).
There was sufficient evidence for a reasonable jury to find that Porter had
constructive possession of the pistol found in his car when he was arrested. Porter
admitted to Hoskins that he owned the pistol that was found in his car when he
was pulled over. Further, by stating that he kept a gun with him for protection
whenever he dealt drugs, Porter essentially acknowledged that he had the power
and intent to exercise control over the gun because a gun that he did not control
would not serve his purpose.
VII.
Porter’s penultimate contention is that the district court erred when it
sentenced him under the Armed Career Criminal Act, 18 U.S.C. § 924(e), which
increases the penalties for defendants convicted of being felons in possession of
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firearms who have already been convicted of three or more violent felonies or
serious drug offenses. He relies on Shepard v. United States, 544 U.S. 13, 125 S.
Ct. 1254 (2005), to argue that the district court improperly looked beyond the
existence of his past convictions to see if those convictions were for violent
felonies or serious drug offenses, a type of factfinding he asserts should be the
sole province of the jury.
However, Porter’s reliance on Shepard is misplaced. That case held a court
may only look to “the terms of the charging document, the terms of a plea
agreement or transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or to some comparable
judicial record of this information” to determine if the crime to which a defendant
has pleaded guilty fits within the common law definitions of the crimes
enumerated in § 924(e)(2)(B)(ii). Shepard, 544 U.S. at 26, 125 S. Ct. at 1263.
Because the district court did not need to go beyond the charging documents and
judgments of conviction to determine that Porter fell under the Armed Career
Criminal Act, there was no Shepard violation.
Porter’s argument about the jury’s province is foreclosed by the Supreme
Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.
1219 (1998), which held that a court can apply a statutory increase in the penalty
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for a crime based on recidivism without the defendant’s earlier convictions having
been alleged in his indictment or proven to a jury. Id. at 226–27, 247, 125 S. Ct. at
1222, 1232. The district court did not err in sentencing Porter under the Armed
Career Criminal Act.
VIII.
Porter’s final contention is that the district court erred by enhancing his
sentencing guideline range based on facts not found by the jury under a beyond-a-
reasonable-doubt standard. We have repeatedly held that this is not error. See
United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005) (stating that it is
not error to apply “extra-verdict enhancements—enhancements based on facts
found by the judge that were not admitted by the defendant or established by the
jury verdict—that le[a]d to an increase in the defendant’s sentence”). As long as
the district court does not treat the guidelines as mandatory, determining a
defendant’s guideline range using facts found under a preponderance-of-the-
evidence standard does not violate the constitution. United States v. Smith, 480
F.3d 1277, 1280–81 (11th Cir.), cert. denied, 128 S. Ct. 175 (2007); United States
v. Chau, 426 F.3d 1318, 1322–23 (11th Cir. 2005).
AFFIRMED.
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