United States v. David Neve

496 F. App'x 699
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 18, 2013
Docket12-1522
StatusUnpublished
Cited by2 cases

This text of 496 F. App'x 699 (United States v. David Neve) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. David Neve, 496 F. App'x 699 (8th Cir. 2013).

Opinion

PER CURIAM.

David Neve was convicted on five counts: (1) conspiracy to distribute 500 grams or more of methamphetamine which contained 50 grams or more of pure meth *700 amphetamine; (2) distribution of 50 grams or more of pure methamphetamine on September 13, 2010; (3) possession with intent to distribute 50 grams or more of pure methamphetamine on September 15, 2010; (4) possession of firearms in furtherance of a drug trafficking crime on September 15, 2010; and (5) possession of firearms in furtherance of a drug trafficking crime on September 13, 2010. Neve appeals his convictions on the firearm charges in counts 4 and 5, arguing there was insufficient evidence to support his convictions under 18 U.S.C. § 924(c)(1)(A), and that the district court 1 abused its discretion by-imposing consecutive terms of imprisonment on those counts. 2 We affirm.

I. BACKGROUND

On September 13, 2010, Neve fronted 3 Jessica Risius 83.74 grams of pure methamphetamine. Law enforcement officers had placed a GPS tracking device on Risi-us’ vehicle, which indicated to the officers Risius’ presence at Neve’s residence. When Risius left the residence, the officers stopped her vehicle, arrested her, and recovered the 83.74 grams of methamphetamine from her person. At trial, Risius testified that she went to Neve’s residence to purchase methamphetamine and Neve fronted her the 83.74 grams. After indicating to Neve that she was reluctant to take the methamphetamine, he reached behind his back, where Risius knew he kept a gun, and told her she would take the methamphetamine. After being threatened by Neve, Risius took the drugs, left Neve’s residence, and was arrested.

On September 15, 2010, officers executed a search warrant on Neve’s residence. Neve’s residence was an acreage that included both a house and a camper. He lived in the camper. During the execution of the search warrant, officers found numerous firearms around Neve’s property, including twenty-six firearms in Neve’s camper, twenty of which were loaded. Officers also found materials consistent with the distribution of methamphetamine including cash, packaging materials and digital scales. Officers recovered 5.72 grams of methamphetamine mixture, 154.16 grams of pure methamphetamine, and 21.63 grams of marijuana around Neve’s property. Finally, officers retrieved $104,734 in cash from the bed of a pickup near Neve’s camper. Officers arrested Neve during the execution of the search warrant and on his person officers found ammunition belonging to two of the guns recovered in the camper.

During trial, the jury heard testimony from multiple witnesses regarding Neve’s involvement in the distribution of methamphetamine and the numerous firearms kept on his property. Further, witness testimony indicated Neve threatened individuals with firearms. Police officers also testified that Neve’s use of firearms was consistent with drug traffickers’ use of weapons. At the close of evidence, Neve motioned for a judgment of acquittal on all counts, which the district court denied. The jury found Neve guilty on all counts. Prior to sentencing, Neve argued that the indictment should not have charged Neve *701 with two § 924(c) crimes. Rejecting Neve’s arguments, on February 17, 2012, the court sentenced Neve to 684 months’ imprisonment. Neve’s sentence consisted of 324 months on each drug count, running concurrently; 60 months on count 4, running consecutively to the drug counts; and 300 months on count 5, running consecutively to the above sentences. Neve appeals and we affirm.

II. DISCUSSION

A. Sufficiency of the Evidence on Counts 4 and 5

Essentially making an insufficiency argument, Neve claims there was no evidence to support a connection between the firearms found on his property and his drug trafficking offenses. We review “sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the verdict and drawing all reasonable inferences in favor of the verdict.” United States v. Robinson, 617 F.3d 984, 988 (8th Cir.2010) (quotation omitted). “A defendant challenging the sufficiency of the evidence confronts a high hurdle. When reviewing a verdict, we do not question credibility determinations made by the jury. A jury is free to believe or reject a witness’s testimony in part or in whole.” United States v. Close, 518 F.3d 617, 620 (8th Cir.2008) (quotation and citations omitted).

Section 924(c) provides that “any person who, during and in relation to any ... drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm” shall be subject to penalty in addition to the punishment for commission of that drug trafficking crime. 18 U.S.C. § 924(c)(1)(A). To establish a violation of § 924(c), the government must prove that the defendant (1) committed a drug trafficking crime, and (2) possessed a firearm in furtherance of that crime. Robinson, 617 F.3d at 988. The “in furtherance” element is satisfied if the government provides “evidence from which a reasonable [trier of fact] could find a nexus between the defendant’s possession of the charged firearm and the drug crime, such that this possession had the effect of furthering, advancing or helping forward the drug crime.” Id. (alteration in original) (quotation and internal quotation omitted). As Neve points out, the “ ‘simultaneous possession of drugs and a firearm, standing alone, is insufficient to sustain a conviction.’” Id. (quoting United States v. Hilliard, 490 F.3d 635, 640 (8th Cir.2007)). “[T]here must be evidence that ... the firearm was used for protection, was kept near the drugs, or was in close proximity to the defendant during drug transactions.” Id. (internal quotation omitted). “The jury may infer the requisite nexus between the firearm and the crime ‘when [the firearm] is kept in close proximity to the drugs, it is quickly accessible, and there is expert testimony regarding the use of firearms in connection with drug trafficking.’ ” United States v. Fetters, 698 F.3d 653, 658 (8th Cir.2012) (alteration in original) (quoting Close, 518 F.3d at 619).

Given the evidence presented, Neve cannot surmount his hurdle on appeal. The evidence presented at trial established a nexus between Neve’s firearms and his drug trafficking offenses. The firearms were both kept in close proximity to the methamphetamine and were quickly accessible.

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Bluebook (online)
496 F. App'x 699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-neve-ca8-2013.