United States v. Dwight Herschel Green

448 F. App'x 931
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 9, 2011
Docket11-12451
StatusUnpublished

This text of 448 F. App'x 931 (United States v. Dwight Herschel Green) 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. Dwight Herschel Green, 448 F. App'x 931 (11th Cir. 2011).

Opinion

PER CURIAM:

Dwight Herschel Green appeals his convictions for interstate travel and attempted *933 possession of a destructive device in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(g) (Count One), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count Two). He also appeals his 108-month sentence on the grounds that the district court erroneously applied a four-level sentencing enhancement pursuant to U.S.S.G. § 2K2.1(b)(6) for possession of a firearm in connection with another felony offense. After thorough review of the briefs and record, we affirm.

I.

On February 22, 2011, the government filed a third superseding indictment charging Green with Count One and Count Two. Green pled not guilty to both counts and was tried by a jury. At trial, the government presented evidence consisting of the testimony of numerous law enforcement agents; the testimony of a cooperating witness, Brian Moses; and video and audio tapes of meetings that Moses had with Green. At the conclusion of the government’s case, Green moved for judgment of acquittal on Count One, arguing that he had not attempted to purchase grenades with the intent to commit a crime of violence. The district court denied this motion.

The defense then presented its case. After offering the testimony of three witnesses, Green took the stand. At the close of all the evidence, Green did not move for judgment of acquittal. After hearing closing arguments, the jury found Green guilty on both counts.

At sentencing, Green received a four-level enhancement for possessing a firearm in connection with another felony offense pursuant to U.S.S.G. § 2K2.1(b)(6). The felony offense alleged was possession of methamphetamine, which officers testified they had found during a search of his home. This enhancement resulted in a total offense level of 26, and Green’s guideline range was calculated to be 63 to 78 months. The district court sentenced Green to 72 months of imprisonment for each of Count One and Count Two, with 36 of the months of the Count Two sentence to run concurrently with Count One and the remaining 36 months running consecutive to Count One. The result was a 108-month total sentence. Green now appeals his convictions and the four-level enhancement under § 2K2.1(b)(6).

II.

We typically review de novo whether sufficient evidence supported the jury’s guilty verdict. See United States v. Klopf, 423 F.3d 1228, 1236 (11th Cir.2005). However, if a defendant fails to renew a motion for judgment of acquittal at the close of all the evidence, then we will reverse a conviction only to prevent a “manifest miscarriage of justice.” United States v. Edwards, 526 F.3d 747, 755-56 (11th Cir.2008). This standard is met when “the evidence on a key element of the offense is so tenuous that a conviction would be shocking.” United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998) (per curiam) (quotation omitted).

A.

To establish a violation of 18 U.S.C. § 924(g), the government must prove that the defendant, with intent to engage in conduct that constitutes a crime of violence, traveled from one state into another and acquired, transferred, or attempted to acquire or transfer a firearm 1 in furtherance of the crime of violence. 18 U.S.C. § 924(g).

Green contends that the evidence does not establish that he intended to engage in *934 a crime of violence. At trial, the government offered the testimony of Brian Moses, who met with Green on multiple occasions to discuss a murder-for-hire scheme. Two of these meetings were recorded, and the government played the audio for the jury during Moses’s testimony. Moses explained that in April 2009, he and Green discussed the scheme and identified seven potential victims. Moses further testified that he and Green had discussed obtaining grenades for Green to throw through the window of a home in order to kill five people. Moses also testified that Green exchanged $200 for the grenades, and the government produced pictures from an ATM camera to corroborate the withdrawal of this money. Moses and Green arranged for delivery of the grenades at a location in Alabama, and Green left his home and drove toward the arranged meeting spot upon receiving a call from Moses on April 16, 2009.

Green testified in his own defense at trial and admitted that his voice was on the recordings. He testified that he was intoxicated during the conversations and never intended to obtain the grenades in order to kill the alleged targets of the scheme. Green could not, however, identify any point in the recorded conversation between himself and Moses where he said he did not want the grenades.

The jury was entitled to credit Moses’s testimony and base its verdict on his recollections. See Craig v. Singletary, 127 F.3d 1030, 1044-45 (11th Cir.1997) (en banc) (“[Ujncorroborated testimony of a co-conspirator or accomplice is sufficient to prove guilt beyond a reasonable doubt.”). We find no “manifest miscarriage of justice” is present here because the record evidence plainly supports the jury’s verdict on Count One. Edwards, 526 F.3d at 755-56.

B.

Green next argues that he was not in possession of any firearms and therefore could not have been found guilty on Count Two. “To establish a violation of 18 U.S.C. § 922(g)(1), the government must prove three elements: (1) that the defendant was a convicted felon, (2) that the defendant was in knowing possession of a firearm, and (3) that the firearm was in or affecting interstate commerce.” United States v. Beckles, 565 F.3d 832, 841 (11th Cir.2009) (quotation omitted). The element of knowing possession can be established if the government shows constructive possession through either direct or circumstantial evidence. Id. “Constructive possession exists when the defendant exercises ownership, dominion, or control over the item or has the power and intent to exercise dominion or control.” Id. (quotation omitted).

Count Two was based on the three firearms that police found in Green’s home after he was arrested. At trial, Moses testified that he saw firearms in Green’s house during one of their April, 2009 visits.

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Related

United States v. Ronald LaJames Wooten
253 F. App'x 854 (Eleventh Circuit, 2007)
United States v. Whitfield
50 F.3d 947 (Eleventh Circuit, 1995)
United States v. Bichsel
156 F.3d 1148 (Eleventh Circuit, 1998)
United States v. Lawrence Prescott Jackson
276 F.3d 1231 (Eleventh Circuit, 2001)
United States v. Scott Allen Rhind
289 F.3d 690 (Eleventh Circuit, 2002)
United States v. Michael Klopf
423 F.3d 1228 (Eleventh Circuit, 2005)
United States v. Isaac Jerome Smith
480 F.3d 1277 (Eleventh Circuit, 2007)
United States v. Edwards
526 F.3d 747 (Eleventh Circuit, 2008)
United States v. Beckles
565 F.3d 832 (Eleventh Circuit, 2009)
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Craig v. Singletary
127 F.3d 1030 (Eleventh Circuit, 1997)

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Bluebook (online)
448 F. App'x 931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dwight-herschel-green-ca11-2011.