United States v. Benjamin Jenkins

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 14, 2019
• Docket: 17-12947
• Status: Unpublished

Opinion

Case: 17-12947 Date Filed: 01/14/2019 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12947 Non-Argument Calendar ________________________

D.C. Docket No. 6:16-cr-00231-RBD-KRS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENJAMIN JENKINS,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(January 14, 2019)

Before MARCUS, BRANCH and JULIE CARNES, Circuit Judges.

PER CURIAM:

Benjamin Jenkins appeals his conviction for possessing a firearm in

furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

Jenkins was also convicted of distributing and possessing cocaine with intent to Case: 17-12947 Date Filed: 01/14/2019 Page: 2 of 4

distribute, in violation of 21 U.S.C. § 841(a), and use of a communication facility

to facilitate distribution and possession of cocaine with intent to distribute, in

violation of 21 U.S.C. § 843(b). On appeal, Jenkins argues that the evidence

presented at trial was insufficient to show that he possessed a firearm in

furtherance of a drug-trafficking crime because he legally owned the firearm at

issue for personal protection reasons. After careful review, we affirm.

We review de novo challenges to the sufficiency of the evidence supporting

a criminal conviction. United States v. Wilchcombe, 838 F.3d 1179, 1188 (11th

Cir. 2016). “The evidence, viewed in the light most favorable to the government,

must be such that a reasonable trier of fact could find that the evidence established

guilt beyond a reasonable doubt.” Id. (quotation omitted). We will not reverse

“unless no reasonable trier of fact could find guilt beyond a reasonable doubt.”

United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). Credibility

questions are reserved for the jury, and we will assume that the jury answered them

all in a manner that supports the jury’s verdict. Wilchcombe, 838 F.3d at 1188.

When a defendant chooses to testify, the jury may disbelieve his statements,

believe the opposite of his statements, and consider his statements as evidence that

he is guilty of the crime. United States v. Brenda Williams, 390 F.3d 1319, 1325

26 (11th Cir. 2004).

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To prove an offense under § 924(c)(1)(A), the government must establish

that the defendant: (1) knowingly (2) possessed a firearm, (3) in furtherance of any

drug trafficking crime. United States v. Michael Williams, 731 F.3d 1222, 1232

(11th Cir. 2013). A defendant possesses a firearm “in furtherance of” a drug

trafficking crime if “the firearm helped, furthered, promoted, or advanced the drug

trafficking.” Id. (quotation omitted). However, the presence of the firearm within

the defendant’s control during the drug trafficking offense is not sufficient by itself

to sustain a § 924(c) conviction. Id. The following factors are relevant in

determining if the government established the “in furtherance” element: (1) type of

drug activity being conducted, (2) accessibility of firearm, (3) type of firearm, (4)

whether the defendant legally owns the firearm, (5) whether the firearm is loaded,

(6) how close the firearm is to drugs or drug profits, and (7) how the firearm was

found. Id. In United States v. Molina, 443 F.3d 824 (11th Cir. 2006), we

concluded that there was sufficient evidence to show a nexus between a firearm

and a drug trafficking crime under § 924(c)(1)(A) when there was a firearm in

close proximity to drugs and a large amount of money, the firearm was easily

accessible, and the government presented evidence that drug traffickers used

firearms to protect drugs and drug proceeds. Id. at 830.

Here, the district court did not err in denying Jenkins’s motion for judgment

of acquittal on sufficiency of the evidence grounds. According to the evidence

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introduced at trial, Jenkins had held the gun on his lap during the entirety of a

cocaine transaction, the gun was in close proximity to the cocaine and its proceeds

during the transaction, and drug traffickers use firearms to protect drugs and drug

proceeds. Michael Williams, 731 F.3d at 1232; Molina, 443 F.3d at 830. Further,

the jury could believe the opposite of Jenkins’s statements that the gun was not

used in connection to his drug activities because he chose to testify on his own

behalf. See Brenda Williams, 390 F.3d at 1325 26. As for Jenkins’ claim that the

testimony of a criminal informant, Crystal Bass, was not credible, we disagree.

We assume credibility determinations support the verdict, there is a recording of

the cocaine transaction in which Bass said that Jenkins had a gun on his lap, and

Jenkins admitted that he moved the gun so that Bass could enter the car for the

cocaine transaction. See Wilchcombe, 838 F.3d at 1188. Moreover, Bass testified

that the presence of the firearm made her feel nervous and fearful, which refutes

Jenkins’s statement on appeal that Bass never felt fear or intimidation. On this

record, a reasonable factfinder could conclude that Jenkins possessed the firearm in

furtherance of a drug crime, and we affirm.

AFFIRMED.