United States v. Clifford Strong Ferguson

343 F. App'x 425
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 24, 2009
Docket08-10937
StatusUnpublished

This text of 343 F. App'x 425 (United States v. Clifford Strong Ferguson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Clifford Strong Ferguson, 343 F. App'x 425 (11th Cir. 2009).

Opinion

PER CURIAM:

Clifford Strong Ferguson appeals his convictions for possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), and possession of firearms in furtherance of distribution of marijuana, in violation of 18 U.S.C. § 924(c)(l)(A)(i). He makes three contentions: (1) the government made improper statements during its closing argument; (2) there is insufficient evidence to support his convictions; and (3) the district court plainly erred in giving the jury a “deliberate ignorance” instruction.

I.

Ferguson first contends that the government made several improper statements during closing argument. Because Ferguson failed to object during the government’s closing argument at trial, we review it only for plain error. United States v. Granville, 716 F.2d 819, 821 (11th Cir.1983). “The four prongs of plain error review are: (1) there must be error; (2) *427 the error must be plain; (3) the error must affect the appellant’s substantial rights; and (4) the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Novaton, 271 F.3d 968, 1014 (11th Cir. 2001) (quotation marks and alteration omitted). We will not correct any error unless all four requirements are met. See id. “Meeting all four prongs is difficult, as it should be.” Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009), and in our review we must consider “the strength of the evidence against [the] defendant ].” United States v. Stout, 667 F.2d 1347, 1354 (11th Cir.1982).

Ferguson argues that the evidence of guilt in this case was not overwhelming. We disagree. When the police officers stopped Ferguson for a traffic violation, they smelled the odor of marijuana coming from his van. That odor was emanating from bag in the back of the van. The bag contained six pounds of marijuana, stored in six gallon-sized bags. The bag also contained two handguns, one of which Fei’-guson admitted was his. Ferguson told the police officers that he was carrying the bag to Kentucky for someone he knew only as “Jock” and that “Jock” was going to pay him for transporting the bag.

Although the government may have made some improper statements during closing argument, such as when it asked the jury to draw on its knowledge about drug dealing from watching television, those statements did not affect Ferguson’s substantial rights because there is no reasonable probability that he would have been acquitted otherwise. See United States v. Wilson, 149 F.3d 1298, 1301 (11th Cir.1998) (“A defendant’s substantial rights are prejudicially affected when a reasonable probability arises that, but for the [government’s] remarks, the outcome of the trial would have been different.”). Additionally, the stain of any improper argument was washed out when the district court properly instructed the jury that arguments by the attorneys were not evidence. See United States v. Smith, 918 F.2d 1551, 1562 (11th Cir.1990). Ferguson has failed to demonstrate that the government’s closing arguments constitute plain error.

II.

Ferguson also contends that there was insufficient evidence to support his convictions. We review de novo the sufficiency of the evidence to support a conviction, but “view the evidence in the light most favorable to the government.” United States v. Herrera, 931 F.2d 761, 762 (11th Cir.1991).

Ferguson argues that the quantity of marijuana alone is insufficient evidence of his intent to distribute it. He notes that the government did not find any scales or smaller bags for repackaging the marijuana for resale. He insists that he was carrying the six gallon-sized bags of pot for personal use and that it makes economic sense to buy drugs in bulk. Buying wholesale, after all, is cheaper than buying retail. That argument fails. Intent to distribute can be inferred from the quantity of the drugs. See United States v. Perez-Tosta, 36 F.3d 1552, 1559 (11th Cir. 1994). The jury chose to make that inference instead of accepting Ferguson’s explanation that the six pounds of marijuana were for personal use. That was a reasonable inference based on the evidence, and it is sufficient to support the conviction. See United States v. Hernandez, 896 F.2d 513, 517 (11th Cir.1990).

Ferguson also argues that the proximity of the guns to the drugs was insufficient to support a conviction for possession a firearm “in furtherance” of drug trafficking. *428 He argues that the handguns wei'e not readily accessible because they were in a bag in the back of the van. Again, those arguments fail. The presence of two loaded firearms in the same bag as the marijuana supports the necessary nexus “between the firearm and the drug selling operation.” See United States v. Mercer, 541 F.3d 1070, 1076-77 (11th Cir.2008). As we recognized in United States v. Miranda, a reasonable jury could infer that the purpose of storing guns next to the drugs “was to provide defense or deterrence in furtherance of the drug trafficking.” 425 F.3d 953, 962 (11th Cir.2005) (internal quotation marks omitted); see also Mercer, 541 F.3d at 1077 (holding that the “in furtherance” element was satisfied where the firearm was “hidden in a pouch under the mattress” in the defendant’s motel room); United States v. Molina, 443 F.3d 824, 830 (11th Cir.2006) (holding that the “in furtherance” element was satisfied where the gun was found in the drawer of a nightstand in the defendant’s bedroom). Sufficient evidence supports Ferguson’s conviction for possession of a firearm in furtherance of marijuana distribution.

III.

Ferguson contends that it was improper for the district court to give a “deliberate ignorance” jury instruction. Because Ferguson failed to object to that instruction at trial, we review it only for plain error. See Granville, 716 F.2d at 821.

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Related

United States v. Wilson
149 F.3d 1298 (Eleventh Circuit, 1998)
United States v. Novation
271 F.3d 968 (Eleventh Circuit, 2001)
United States v. Adan Gil Miranda
425 F.3d 953 (Eleventh Circuit, 2005)
United States v. Eliany Molina
443 F.3d 824 (Eleventh Circuit, 2006)
United States v. Laboyce Kennard
472 F.3d 851 (Eleventh Circuit, 2006)
United States v. Mercer
541 F.3d 1070 (Eleventh Circuit, 2008)
Puckett v. United States
556 U.S. 129 (Supreme Court, 2009)
United States v. Charles Allen Stout, John Mark Johnson
667 F.2d 1347 (Eleventh Circuit, 1982)
United States v. Paul W. Granville
716 F.2d 819 (Eleventh Circuit, 1983)
United States v. Ofelia Herrera
931 F.2d 761 (Eleventh Circuit, 1991)
United States v. James W. Stone
9 F.3d 934 (Eleventh Circuit, 1993)

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Bluebook (online)
343 F. App'x 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clifford-strong-ferguson-ca11-2009.