United States v. Lapatrick Deon McIntosh , 203 F. App'x 302 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 31, 2006
No. 05-14442 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-21018-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAPATRICK DEON MCINTOSH,
a.k.a. Lapatrick Deon Macintoch,
a.k.a. Fat,
a.k.a. Pat,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 31, 2006)
Before EDMONDSON, Chief Judge, BARKETT and COX, Circuit Judges.
PER CURIAM:
Lapatrick Deon McIntosh (“McIntosh”) appeals his conviction and sentence
for conspiracy to possess with intent to distribute fifty grams or more of cocaine
base. We affirm, finding no merit to the various arguments raised on appeal.
First, we reject the argument that the evidence was insufficient to support the
jury’s guilty verdict in light of all the testimony, especially that of two co-
conspirators who directly implicated McIntosh and testified against him.
Second, we find no abuse of discretion in the exclusion of an
unauthenticated draft transcript of a wiretap admitted in evidence. McIntosh
concedes that the transcript correctly reflected the contents of the tape. Moreover,
in light of all of the evidence in this case, even if erroneous, it would have been
harmless.
Third, we find no error in admitting in evidence a kilogram of cocaine found
in a co-conspirator’s backpack because the evidence at trial demonstrated its
substantial probative value. The tapes introduced at trial demonstrated that the
contents of the backpack were related to the conspiracy in which McIntosh was a
participant. We have held that “evidence inextricably intertwined with the chain
of events surrounding the crime charged is admissible.” United States v. Gomez,
927 F.2d 1530, 1535 (11 th Cir. 1991). Under this precedent, there was no abuse of
discretion in the admission of this evidence.
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We likewise find no error in the district court’s instruction to the jury that
they should indicate on the special verdict form the amount of drugs involved in
the conspiracy. We will not reverse a conviction based on erroneous jury
instructions unless, after examining the entire charge, we find that the issues of law
were inaccurately presented, the charge included crimes not contained in the
indictment, or the charge improperly guided the jury in such a substantial way as to
violate the defendant’s right to due process. See United States v. Smith, 918 F.2d
1551, 1564 (11 th Cir. 1990). Having reviewed the jury charge, we conclude that it
neither misstated the law or misled the jury to the prejudice of the defendant. See
United States v. Grigsby, 111 F.3d 806, 814 (11 th Cir. 1997).
We also reject as meritless McIntosh’s argument that the district court
abused its discretion in denying his motion for a new trial and judgment of
acquittal. The evidence must preponderate heavily against the verdict, such that it
would be a miscarriage of justice to let the verdict stand. United States v.
Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). This standard cannot be met in
this case in light of the overwhelming evidence of McIntosh’s guilt.
Finally, we find no error in the imposition of McIntosh’s sentence.
McIntosh asserts that the district court committed several errors in sentencing. He
argues that the district court clearly erred by imposing enhancements for drug
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quantity, for possessing a firearm, for denying a minor role reduction, and for
treating him as a career offender. The career offender enhancement resulted in an
offense level of 37 and a sentencing guideline range of 360 months to life. The
district court, after engaging in a reasonableness analysis under 3553(a), imposed a
sentence at the bottom of the advisory guidelines range—360 months’
imprisonment, to be followed by ten years’ supervised release. We conclude that
the district court did not err in its sentence.
The trial court made a finding that the facts presented through the trial
testimony of Harris and Butts supported, by a preponderance of the evidence, a
finding that McIntosh was responsible for one kilogram of cocaine base, resulting
in a base offense level of 36. See U.S.S.G. §§ 2D1.1(a)(3) and (c). A sentencing
court does not err when it enhances a sentence under an advisory guidelines
scheme based on facts found by a preponderance of the evidence. United States v.
Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005). Thus, we find no error in the drug
quantity enhancement.
The district court also did not err in applying a two-level enhancement for
possession of a firearm during a drug offense. According to the PSR, McIntosh
was subject to the two-level enhancement because a search of his residence
incident to his arrest revealed a firearm in his bedroom. See U.S.S.G. §
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2D1.11(b)(1). The two level enhancement is applicable “if the weapon was
present, unless it is improbable that the weapon was connected with the offense.”
U.S.S.G. § 2D1.11, comment. (n.1). The evidence presented by the government
was sufficient for the district court to conclude it probable, by a preponderance of
the evidence, that the weapon was connected with the offense. It was reasonable
for the district court to conclude from the location of the firearm in the bedroom
that McIntosh shared with his girlfriend, together with the crack found in the
dresser drawer in the same bedroom, and the cocaine cooking equipment found in
the common area of the house, that McIntosh possessed the firearm during conduct
relevant to his drug conspiracy. See United States v. Hunter, 172 F.3d 1307, 1309
(11th Cir. 1999). Consequently, McIntosh has not shown that the district court’s
application of the enhancement was clearly erroneous.
The district court also did not err in denying McIntosh a two-level reduction
due to his minor role in the alleged conspiracy. To warrant a minor role
adjustment, the evidence must demonstrate that the defendant’s role made him
substantially less culpable than the average participant. USSG § 3B1.2 comment.
(backg’d) (emphasis added). McIntosh offered no evidence that he was less
culpable than most of the other participants. On the other hand, the government
presented evidence that he was a street dealer who handled at least a kilogram of
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crack cocaine, and that he personally cooked the crack that he and Butts sold.
The district court also did not err in sentencing McIntosh as a career
offender. USSG § 4B1.1 provides that a defendant convicted of a crime of
violence or a controlled substance offense and who has two prior convictions for
such offenses is a career offender with special sentencing offense levels. U.S.S.G.
§ 4B1.1. The PSI listed McIntosh as having three prior qualifying convictions:
burglary of an occupied dwelling, armed robbery, and robbery in 1990; possession
with intent to sell or deliver cocaine in 1997; and aggravated battery and resisting
arrest in 1997. Each of these convictions qualifies as a crime of violence or a
controlled substance offense under U.S.S.G. § 4B1.1, thereby qualifying McIntosh
as a career criminal. See 18 U.S.C. § 924(e)(2)(B) (explicitly defining armed
robbery as a “crime of violence” under ACCA); U.S.S.G. § 2L1.2(b)(1)(A)(ii),
comment. (n.1(B)(iii)) (stating that aggravated assault is a crime of violence); see
also United States v. Washington, --- F.3d ----, 2006 WL 2550041, at n.9 (9th Cir.
Sept. 6, 2006) (stating that armed robbery “armed robbery clearly fit the definition
of “crime of violence” contained in section 924(c)”).
McIntosh’s final argument is that his sentence, at the bottom of the
sentencing guidelines range, is unreasonable because the district court failed to
articulate the § 3553(a) factors it relied upon in imposing the sentence. The
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district court stated that it had considered the statements of all parties, the PSI,
which included advisory guidelines recommendations, and all of the § 3553(a)
factors. The district court expressly concluded that the low end of the advisory
guideline range “fully reflects the seriousness of the offense and provides just and
reasonable punishment.” McIntosh has not shown that the district court erred in its
§ 3553(a) analysis nor that the sentence imposed is unreasonable. Accordingly, his
sentence is affirmed.
AFFIRMED.
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