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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13455
Non-Argument Calendar
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D.C. Docket No. 3:18-cr-00115-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEROME LEE,
a.k.a. Jermore Lee,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(March 31, 2020)
Before WILSON, WILLIAM PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
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Jerome Lee, a federal prisoner, appeals his conviction for carrying a firearm
“during and in relation to” a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A). Lee argues that the district court erred and abused its discretion
when it accepted his guilty plea because the facts admitted in the factual proffer
were not sufficient to support a conviction for possession of a firearm “during and
in relation to” a drug trafficking offense. See 18 U.S.C. § 924(c)(1)(A). For the
following reasons, we affirm.
To start, we review for plain error. See 11th Cir. R. 3-1.1 Under plain error
review, Lee must show that “(1) an error occurred; (2) the error was plain; (3) it
affected his substantial rights; and (4) it seriously affected the fairness of the
judicial proceedings.” United States v. Gresham,
325 F.3d 1262, 1265 (11th Cir.
2003). “[A]t least where the explicit language of a statute or rule does not
specifically resolve an issue, there can be no plain error where there is no
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Normally, when a defendant does not object to a magistrate judge’s findings or
recommendations in a report and recommendation (R&R) per 28 U.S.C. § 636(b)(1), he “waives
the right to challenge on appeal the district court’s order based on unobjected-to factual and legal
conclusions if the party was informed of the time period for objecting and the consequences on
appeal for failing to object.” 11th Cir. R. 3-1. “In the absence of a proper objection, however,
the court may review on appeal for plain error if necessary in the interests of justice.”
Id. Here,
Lee did not object to the R&R. But it appears that he only got a 24-hours window, even though
28 U.S.C. § 636(b)(1) provides a 14-day time period for parties to file objections. So plain error
review is necessary in the interests of justice here. See 11th Cir. R. 3-1; see also United States v.
Carpenter,
803 F.3d 1224, 1238 (11th Cir. 2015) (“We exercise plain error review sparingly, and
only in those circumstances in which a miscarriage of justice would otherwise result.” (internal
quotation mark omitted)). In any event, Lee failed to make his insufficient-factual-basis
objection in the district court; in that case too, we review for plain error. See United States v.
Rodriguez,
751 F.3d 1244, 1251 (11th Cir. 2014).
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precedent from the Supreme Court or this Court directly resolving it.” United
States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam).
Section 924(c) provides for a mandatory consecutive sentence for any
defendant who uses or carries a firearm during and in relation to, or possesses a
firearm in furtherance of, a drug trafficking crime. 18 U.S.C. § 924(c)(1). The
Supreme Court has held that, in the context of § 924(c), the phrase “‘in relation to’
. . . clarifies that the firearm must have some purpose or effect with respect to the
drug trafficking crime; its presence or involvement cannot be the result of accident
or coincidence.” Smith v. United States,
508 U.S. 223, 238 (1993). “Instead, the
gun at least must facilitate, or have the potential of facilitating, the drug trafficking
offense.”
Id. (alterations adopted) (internal quotation marks omitted).
Following Smith, we held that (1) when a firearm is sold with drugs, the
“during” element is satisfied; and (2) even if a firearm sold with drugs did not
facilitate the drug offense, the firearm by its nature had the “potential of
facilitating” the offense so as to satisfy the “in relation to” element. United States
v. Timmons,
283 F.3d 1246, 1251–52 (11th Cir. 2002). In Timmons, the defendant
pre-arranged a sale of firearms and drugs with an undercover officer.
Id. at 1248.
They completed the sale later that day when they exchanged a shoe box containing
a firearm and drugs for $300 for the firearm and $200 for the drugs.
Id. at 1248–
49. We concluded that the evidence showed that the gun was not there
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“coincidentally,” nor was it “entirely unrelated” to the crime.
Id. at 1251. We
reasoned that “it would flout the purpose of the statute[—to combat the dangerous
combination of drugs and guns—]to hold anything but that the gun was carried
‘during and in relation’ to the drug offense” because the defendant combined the
drugs and firearm into a single shoebox and a single transaction.
Id. at 1251–52.
“Before entering judgment on a guilty plea, the court must determine that
there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). Normally, when
evaluating a claim that there was an insufficient factual basis for a plea, we ask
“whether the district court was presented with evidence from which it could
reasonably find that the defendant was guilty.” United States v. Puentes-Hurtado,
794 F.3d 1278, 1287 (11th Cir. 2015) (alteration adopted). But, as explained
earlier, we are reviewing only for plain error.
Here, Lee admitted to (1) arranging to sell the undercover agent a firearm
and methamphetamine in a single transaction; (2) meeting the agent and the
confidential informant; (3) driving with them to two different locations where he
retrieved a loaded firearm and one-half ounce of methamphetamine; and (4) after
picking up the firearm and drugs, giving the agent both items and accepting $500
in cash to cover both items. At bottom, Lee fails to point to any on-point precedent
establishing that it was error for the district court to accept his guilty plea under
these facts. On the contrary—Lee’s facts fall squarely within the bounds of
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§ 924(c)(1)(A). See
Timmons, 283 F.3d at 1248–52. And his insistence that he did
not possess the firearm “in furtherance of” the drug offense is inapposite because,
for one, as he acknowledges in his brief, he was charged with carrying a firearm
during and in relation to a drug offense and, two, § 924(c)(1)(A) uses the
disjunctive. Therefore, the district court did not plainly err, and we affirm.
AFFIRMED.
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