United States v. Gilberto Garcia , 489 F. App'x 334 ( 2012 )

Case: 11-16130 Date Filed: 09/05/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-16130
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20022-UU-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
GILBERTO GARCIA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 5, 2012)
Before DUBINA, Chief Judge, HULL and MARTIN, Circuit Judges.
PER CURIAM:
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Appellant Gilberto Garcia appeals his conviction for possession of a firearm
in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A).
Garcia argues that there was insufficient evidence to prove that his firearm
possession was “in furtherance of” the drug-trafficking crime. The facts adduced
at the bench trial on this count showed that Garcia drove to Florida with a fully
loaded, semi-automatic firearm in the front console of the truck, knowing that he
would negotiate a cocaine deal. Garcia agreed to drive an undercover vehicle
containing the cocaine to a storage location, and intended for his codefendant to
follow him in the truck with the firearm.
Sufficiency of the evidence is question of law subject to de novo review.
United States v. Martinez, 83 F.3d 371, 373-74 (11th Cir. 1996). While ordinarily
a party must move for a judgment of acquittal at trial in order to preserve a
sufficiency of the evidence argument on appeal, it is not necessary to do so in a
bench trial. United States v. Hurn, 368 F.3d 1359, 1368 n.5 (11th Cir. 2004). In
assessing sufficiency, we review the evidence “in the light most favorable to the
government, with all reasonable inferences and credibility choices made in the
government’s favor.” Martinez, 83 F.3d at 374. A conviction will not be reversed
unless “no reasonable trier of fact could find guilt beyond a reasonable doubt.”
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United States v. Schaltenbrand, 930 F.2d 1554, 1560 (11th Cir. 1991).
Section 924(c) of Title 18 of the U.S. Code states, “any person who, during
and in relation to any crime of violence or drug trafficking crime . . . uses or
carries a firearm, or who, in furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such crime of violence or drug
trafficking crime” be subject to additional penalties enumerated in the statute. 18
U.S.C. § 924(c)(1)(A). We have interpreted “in furtherance of” to mean that the
firearm “helped, furthered, promoted, or advanced the drug trafficking.” United
States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002). Mere presence of a
firearm in the defendant’s “dominion and control” during the drug offense is
insufficient by itself to constitute possession “in furtherance of” the
drug-trafficking crime. Id. at 1253. We consider a list of non-exclusive factors in
determining whether there is “some nexus between the gun and the drug selling
operation”: (1) the type of drug activity 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. (internal quotation marks omitted).
To prove the § 924(c) offense as charged in Count 3, the government must
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establish that Garcia (1) knowingly, (2) possessed a firearm, (3) in furtherance of a
drug-trafficking crime. United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir.
2008). We have not required that the drugs and firearm be located in the same
compartment. See United States v. Suarez, 313 F.3d 1287, 1292-93 (11th Cir.
2002) (upholding a conviction where officers recovered loaded firearms and
ammunition that was loose in a bag in the master bedroom closet in the
defendant’s residence because the residence had been used to store cocaine).
Viewed in the light most favorable to the government, we conclude from the
record that the evidence established a nexus between the firearm and the drug
conspiracy to show that the firearm was possessed “in furtherance” of a drug-
trafficking crime and was sufficient to support Garcia’s § 924(c) conviction.
Thus, we affirm Garcia’s conviction.
AFFIRMED.
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