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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12967 Non-Argument Calendar ________________________
D.C. Docket No. 2:17-cr-00100-SLB-CSC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES CALVIN TALLEY, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Alabama ________________________
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Before MARTIN, LUCK, and FAY, Circuit Judges.
PER CURIAM:
James Calvin Talley, Jr. appeals his convictions and sentences for possession
of methamphetamine with the intent to distribute it and possession of a firearm as a
convicted felon. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In December 2016, Drug Enforcement Administration agents stopped an
individual in Texas who was transporting one hundred pounds of marijuana to
Talley. The individual agreed to cooperate with the agents and completed a
controlled delivery to Talley’s home. When the cooperating individual got to
Talley’s house, agents saw Talley get into the delivery car and drive it, with the
marijuana still inside, to the home of Richie Murphy. When Talley arrived at
Murphy’s home, the agents arrested him and Murphy, who was home at the time.
With Murphy’s permission, the agents searched his home. Inside, they found
three and a half pounds of methamphetamine, two handguns, approximately seven
pounds of marijuana, drug paraphernalia, plastic bags, and $22,526 in cash.
Then, with Talley’s wife’s consent, the agents searched Talley’s home and
shed. In Talley’s shed they found digital scales, receipts, and “money logs.” In
Talley’s home they found $50,192 in cash, marijuana, and a ledger containing dates,
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quantities of money, and coded language. They also found a locked safe containing
two firearms under Talley’s bed in the master bedroom.
Talley was indicted for possessing methamphetamine with intent to distribute
it, in violation of 21 U.S.C. section 841(a)(1) and 18 U.S.C. section 2, and possessing
a firearm as a convicted felon, in violation of 18 U.S.C. section 922(g)(1).1 Here are
the parts of his trial and sentencing hearing relevant to this appeal.
Testimony about ownership of the firearms
Agent Bryan Alfutis was one of the Drug Enforcement Administration agents
who searched Talley’s home. At Talley’s trial, he testified that the agents found the
firearms in a locked safe underneath the bed in Talley’s bedroom. Agent Alfutis
testified that Talley’s wife told him where the key to the safe was. On redirect
examination, the government asked if Talley’s wife told him who owned the guns.
Agent Alfutis responded, without objection, “[Talley’s wife] told me [the firearms]
were her husband[’]s.”
1 Talley was also indicted for, and convicted of, possessing marijuana with intent to distribute it, in violation of 21 U.S.C. section 841(a)(1), and using a communication facility in facilitation of a drug trafficking offense, in violation of 21 U.S.C. section 843(b). Talley has not appealed his convictions and sentences for either of these counts.
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Testimony about “Hector” being Talley’s methamphetamine source
Agent Alfutis also testified that the ledger found in Talley’s shed used coded
language to describe drug sales. He testified that it was typical in his experience for
drug traffickers to keep transaction records. Agent Alfutis testified, without
objection, that the ledger corroborated the Drug Enforcement Administration’s
investigation because “[o]ne of the entries [had] the name Hector on it and several
dates and quantities of money. Hector [was] the name, through [the] investigation
that continued on and after that night, that [the Drug Enforcement Administration
had] identified as a methamphetamine source or supplier for Mr. Talley.”
Jury instructions
The district court, without objection, instructed the jury on the felon in
possession of a firearm charge that:
The defendant can be found guilty of the offense charged in Count 3 only if all of the following facts are proved beyond a reasonable doubt. First, that the defendant knowingly possessed a firearm in or affecting interstate commerce as charged. And second, that before the defendant possessed the firearm, he had been convicted in a court of a crime punishable by imprisonment for a term in excess of one year. That is a felony offense.
Motions for judgment of acquittal
After the government rested its case, Talley moved for a judgment of acquittal
on the felon in possession of a firearm and possession with intent to distribute
methamphetamine counts because the evidence was insufficient to support
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conviction. As to the firearm count, Talley argued there was insufficient proof that
he “exercise[d] dominion and control” over the guns in the safe. And as to the
methamphetamine count, Talley argued that Murphy’s testimony about the
methamphetamine was “incredible as a matter of law.” The district court denied
Talley’s motion on the methamphetamine count, but reserved ruling on the firearm
count. After the trial, the district court denied the reserved motion because the
evidence was sufficient for a jury to find that Talley controlled the home and
bedroom where the firearms were found.
Allen charge
Five hours into the jury’s deliberation, the jury asked the district court four
questions. The jury asked: (1) if it had to be unanimous on every count; (2) whether
a lack of unanimity on every count would “void everything”; (3) whether agreement
on only three of four counts would “void everything”; and (4) for a repetition of the
jury instruction for possession.
After reading the jury’s questions, the district court asked counsel whether it
should give an Allen2 charge. Talley objected, arguing that an Allen charge was
premature because the jury had not affirmatively indicated that it could not reach a
2 Allen v. United States, 164 U.S. 492 (1896).
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verdict and because the language in the pattern Allen charge that “[t]here’s no reason
to believe that the case will be tried again by either side that has been exhaustively
tried before you,” and “another trial would increase the cost [to] both sides,” created
unfairness because it suggested the jury would have to “do [the trial] again.” The
district court agreed to omit this language from the pattern Allen charge. The district
court then told the jury that it could return a unanimous verdict on any of the counts
and that its lack of unanimity on other counts would have no effect, and repeated the
possession instruction. At Talley’s request, the district court gave the jury additional
time to deliberate and did not give the modified Allen charge.
After more time passed, the jury returned and reported that it had only reached
a verdict on three of the four counts. The district court confirmed that the jury could
not reach a verdict on the final count, and then gave the modified Allen charge to
the jury. The jury later returned a guilty verdict on all counts.
Sentencing
The presentence investigation report calculated Talley’s base offense level at
34 under guideline section 2D1.1(a)(5) and (c)(1), then added two levels under
section 2D1.1(b)(1) because Talley possessed a firearm during the offense and two
additional levels under section 3B1.1(c) because Talley had a supervisory role. This
resulted in a total offense level of 38. But Talley’s offense level was set at 42
because his two prior felony drug convictions made him a career offender under
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section 4B1.1(a) and (b)(1). The presentence investigation report also assigned
Talley a criminal history category of VI because he was a career offender. A total
offense level of 42 and a criminal history category of VI would ordinarily result in
an advisory guideline range of 360 months to life. However, because the
methamphetamine count carried a mandatory minimum life sentence if a defendant
had two or more prior felony drug convictions, and Talley had two prior felony drug
convictions, the report determined that Talley’s guideline range became life pursuant
to section 5G1.1(a). See 21 U.S.C. § 841(b)(1)(A) (2010) (“[If] any person commits
a violation of [section 841(b)(1)(A)] . . . after two or more prior convictions for a
felony drug offense have become final, such person shall be sentenced to a
mandatory term of life imprisonment without release . . . .”).
Talley objected to the presentence investigation report, arguing that there was
no evidence that Talley knew Murphy had firearms in the stash house. He also
objected to the use of his prior convictions to impose the mandatory life sentence
because the indictment did not charge, and the jury did not find, that he committed
the prior offenses. The district court overruled Talley’s objection to the section
2D1.1(b)(1) firearm enhancement because there were firearms found in Murphy’s
stash house and under Talley’s bed. The district court also overruled Talley’s
objection to the use of his prior convictions because Almendarez-Torres v. United
States, 523 U.S. 224 (1998) held that they may be used to impose a mandatory
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minimum sentence even though the prior convictions were not charged in the
indictment or found by the jury.
The district court then found that Talley’s offense level was 42 and his
criminal history category was VI because Talley was a career offender, and that the
guideline range was life because section 841(b)(1)(A) carried a mandatory minimum
life sentence. The district court sentenced Talley to life for the possession with intent
to distribute methamphetamine count, based on the mandatory minimum, and
120 months for the felon in possession of a firearm count.
STANDARDS OF REVIEW
We review de novo the sufficiency of the evidence supporting a conviction
and consider “the evidence in the light most favorable to the government, with all
reasonable inferences and credibility choices made in the government’s favor.”
United States v. Frazier, 605 F.3d 1271, 1278 (11th Cir. 2010) (internal quotation
marks omitted). “A conviction must be upheld unless the jury could not have found
the defendant guilty under any reasonable construction of the evidence.” United
States v. Emmanuel, 565 F.3d 1324, 1333 (11th Cir. 2009) (internal quotation marks
omitted). However, where a defendant challenges the sufficiency of the evidence
on a ground not argued below, we review that new ground for plain error. United
States v. Hunerlach, 197 F.3d 1059, 1067–68 (11th Cir. 1999).
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Under plain error review, we may not correct an error unless “there is: (1)
error, (2) that is plain, and (3) that affects substantial rights.” United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). If all three conditions are met, we
may only correct the forfeited error “if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. An error affects a
defendant’s substantial rights if there is a reasonable probability that the error
affected the outcome of the district court proceedings. Id. at 1299; see also United
States v. McLellan, 958 F.3d 1110, 1119 (11th Cir. 2020) (“[F]or an error to have
affected a defendant’s substantial rights, there must be ‘a reasonable probability that,
but for the error,’ the outcome of the proceeding would have been different.”)
(quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016))
(alterations adopted). We review the entire record to determine whether an error
affected a defendant’s substantial rights. United States v. Reed, 941 F.3d 1018, 1021
(11th Cir. 2019).
We review de novo whether testimony violates the Confrontation Clause.
United States v. Cooper, 926 F.3d 718, 730 (11th Cir. 2019). However, where the
defendant does not object to the admission of testimonial statements at trial, we
review their admission for plain error. United States v. Arbolaez, 450 F.3d 1283,
1291 (11th Cir. 2006).
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We also review de novo whether the district court misstated the law in its jury
instructions. United States v. Joseph, 709 F.3d 1082, 1093 (11th Cir. 2013).
However, “unpreserved objections to jury instructions are reviewed for plain error.”
Id.
Finally, we review a decision to give an Allen charge for abuse of discretion.
United States v. Brown, 934 F.3d 1278, 1294 (11th Cir. 2019).
DISCUSSION
Talley argues that the district court erred by: (1) failing to instruct the jury
that it could only find him guilty of being a felon in possession of a firearm if he
knew he was a felon, as required by United States v. Rehaif, 139 S. Ct. 2191 (2019);
(2) denying his motion for judgment of acquittal on the felon in possession of a
firearm count; (3) failing to exclude his wife’s testimony that the guns were his, in
violation of the Confrontation Clause; (4) failing to exclude Agent Alfutis’s
testimony that “Hector” was Talley’s source for the methamphetamine, in violation
of the Confrontation Clause; (5) giving the jury the Allen charge; (6) imposing a
mandatory life sentence under 21 U.S.C. section 841(b)(1)(A) where the jury did not
find beyond a reasonable doubt that he had been convicted of two prior drug felonies;
and (7) incorrectly applying enhancements in calculating his advisory guideline
range. We address each argument below.
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Rehaif error
Talley contends that (1) the district court erred by failing to instruct the jury
that it had to find beyond a reasonable doubt that Talley knew he was a convicted
felon, as required by Rehaif, and (2) the evidence was insufficient to establish that
he knew of his felon status. Talley raises these arguments for the first time on appeal.
To support a conviction under 18 U.S.C. section 922(g), the government had
to prove that Talley “knew he possessed a firearm and that he knew he belonged to
the relevant category of persons barred from possessing a firearm.” Rehaif, 139 S.
Ct. at 2194. But “where the record clearly demonstrates that it would be implausible
for the defendant to not have been aware of his felony status,” a Rehaif error does
not meet the plain error test because it “does not affect substantial rights.” McLellan,
958 F.3d at 1119 (citing Reed, 941 F.3d at 1022).
Here, as in McLellan, the record clearly shows that Talley was aware of his
felon status. At trial, the government introduced, without objection, the judgments
from Talley’s previous felony convictions. One of the judgments was signed by
Talley next to a checked box that said, “Felony.” Talley had two prior felony
convictions, and he served four years in prison because of these convictions. See
Reed, 941 F.3d at 1021 (finding no plain error under Rehaif where the defendant had
served eighteen years in prison for a prior felony conviction). As in McLellan, it
was implausible that Talley would not have known of his felon status. See 958 F.3d
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at 1119. Talley has not shown that, but for the Rehaif error, there would be a
reasonable probability of a different outcome at trial.
Sufficiency of the evidence – felon in possession count
Talley also contends that, without his wife’s statement that he owned the
firearms found in the safe under his bed, the evidence was insufficient that he
possessed the firearms. We conclude that, even without his wife’s statement, there
was sufficient evidence to support his constructive possession of the firearms.
Under 18 U.S.C. section 922(g), it is unlawful for certain classes of
individuals, including felons, to “possess in or affecting commerce, any firearm
. . . .” See Rehaif, 139 S. Ct. at 2194. “Possession of a firearm may be either actual
or constructive.” United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011).
“Constructive possession of a firearm exists when a defendant does not have actual
possession but instead knowingly has the power or right, and intention to exercise
dominion and control over the firearm.” Id. It requires only “knowledge of the thing
possessed coupled with the ability to maintain control over it or reduce it to his
physical possession even though he does not have actual personal dominion.”
United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (internal quotation
marks and citations omitted). “[C]onstructive possession . . . may be shown
circumstantially through evidence of ownership, dominion, or control over the
premises on which the [contraband] is located.” United States v. Cochran, 683 F.3d
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1314, 1320 (11th Cir. 2012). And constructive possession may be sole or joint.
Cochran, 683 F.3d at 1320; United States v. Mieres-Borges, 919 F.2d 652, 657 (11th
Cir. 1990) (“Even constructive possession need not be exclusive, but may be shown
circumstantially through evidence of ownership, dominion, or control over the
premises on which the [contraband] is located.”).
A jury may infer constructive possession if a firearm is found in the
defendant’s home. United States v. Smith, 591 F.2d 1105, 1107 (5th Cir. 1979)
(holding that “dominion and control over [the defendant’s] residence, in which the
guns were found, is a sufficient basis for the jury’s inference of constructive
possession”); Mieres-Borges, 919 F.2d at 657 (holding that “evidence of ownership,
dominion, or control over the premises on which the [contraband] is located” is
sufficient to infer constructive possession). We have also held that a jury may infer
constructive possession of firearms found in a glove compartment of a car or in an
adjoining hotel room. See, e.g., United States v. Howard, 742 F.3d 1334, 1341 (11th
Cir. 2014) (holding that the defendant had constructive possession of a firearm found
inside the glove compartment where defendant had been in the driver’s seat just
before search of vehicle); United States v. Riggins, 563 F.2d 1264, 1266 (5th Cir.
1977) (holding that the defendant had constructive possession of contraband in a
hotel room when a drug deal was conducted between two others in the adjoining
bathroom).
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Here, based on the other evidence, a jury could find that Talley constructively
possessed the firearms. First, the firearms were in his home, where Talley lived with
his wife and daughter and where he exercised ownership, dominion, and control.
See Smith, 591 F.2d at 1107 (permitting inference of constructive possession for
firearms found in defendant’s home). Second, the safe holding the firearms was in
his bedroom, which was sufficient to permit the jury to infer Talley’s dominion and
control over it. See, e.g., United States v. Ochoa, 941 F.3d 1074, 1105 (11th Cir.
2019) (determining that there was sufficient evidence that the defendant
constructively possessed ammunition because evidence showed the defendant
exercised dominion and control over the bedroom where the ammunition was
found); United States v. Molina, 443 F.3d 824, 830 (11th Cir. 2006) (determining
that there was sufficient evidence that the defendant constructively possessed a
firearm “[b]ecause the firearm was found in [the defendant’s] bedroom”). And,
much like Howard, where we held that a weapon in the glove compartment of a
defendant’s car was sufficient to establish constructive possession, a jury could infer
that Talley had access to, and could exercise control over, the firearms inside the
safe that was under his bed. See 742 F.3d at 1341; see also United States v.
Gonzalez, 71 F.3d 819, 835 (11th Cir. 1996) (“[Defendant’s] presence in the [car],
with ready access to the weapon later discovered in the glove compartment, was
sufficient to prove that he possessed the [firearm] . . . irrespective of the fact that the
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[firearm] belonged to a third person.”), abrogated on other grounds by Arizona v.
Gant, 556 U.S. 332, 335 (2009).
Confrontation Clause – Talley’s wife’s testimony about his ownership of the firearms
Talley contends that the admission of his wife’s testimony that the guns were
his violated his rights under the Confrontation Clause. He raises this argument for
the first time on appeal.
Talley’s Confrontation Clause argument fails on the third prong of the plain
error test because, as discussed above, there was sufficient evidence for the jury to
infer Talley’s constructive possession without his wife’s statement. Thus, Talley
hasn’t shown a “reasonable probability that, but for the error, the outcome of the
proceeding would have been different.” McLellan, 958 F.3d at 1119 (internal
quotation marks omitted).
Confrontation Clause – Agent Alfutis’s testimony about “Hector”
Talley contends that Agent Alfutis’s testimony about “Hector” being Talley’s
source for the methamphetamine violated the Confrontation Clause. Talley argues
that without this testimony the non-hearsay evidence was insufficient that he
possessed the methamphetamine with the intent to distribute it. Talley makes this
argument for the first time on appeal.
The evidence, even without Agent Alfutis’s testimony, was more than
sufficient for the jury to conclude that Talley possessed the methamphetamine found 15 USCA11 Case: 18-12967 Date Filed: 01/11/2021 Page: 16 of 20
in Murphy’s home. At trial, Talley’s cellmate testified that Talley told him about
the pending case and said, “you can get a kilo [of methamphetamine] for $8,000, and
it’s easy to double your money.” Talley’s cellmate also testified that Talley said he
had taken the marijuana to a “stash house” owned by a “white man with no legs.”
Murphy, the owner of the house where the drugs were found, had one leg, and
testified that his home was Talley’s “stash house,” that the operation “grew into
methamphetamine,” and that Talley would “bring [the methamphetamine] into the
house, and then [Murphy] would stash it.” Murphy testified that he and Talley would
break down the methamphetamine into salable sizes, and then Talley would
“distribute it.” In other words, the testimony was that Talley delivered the
methamphetamine to Murphy, Talley occasionally “broke [it] down,” and Talley
actually “distribute[d] it.”
Because, even without Agent Alfutis’s testimony, the evidence was sufficient
to convict Talley of possessing methamphetamine with intent to distribute it, there
was no “reasonable probability that, but for the error, the outcome of the proceeding
would have been different.” McLellan, 958 F.3d at 1119 (internal quotation marks
omitted).
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Talley next argues that (1) Allen charges are inherently coercive and violate
the Sixth Amendment, and (2) the district court’s Allen charge coerced a verdict at
his trial.
Although Talley argues that Allen charges are inherently coercive, we have
not adopted a per se rule and have approved the use of the pattern Allen charge on
several occasions. United States v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008);
United States v. Dickerson, 248 F.3d 1036, 1050 (11th Cir. 2001). “We will find
that a district court has abused its discretion in giving a modified Allen charge only
if the charge was inherently coercive.” Woodard, 531 F.3d at 1364. “In assessing
whether the charge was coercive, we consider the language of the charge and the
totality of the circumstances under which it was delivered,” including “whether the
court conducted a full poll of the jury before giving the charge and the amount of
time between the delivery of the charge and the return of the jury’s verdict.” Id.
Here, the district court gave the approved pattern Allen charge, save for the
modifications that Talley himself requested. And the totality of the circumstances
demonstrated that the district court’s decision to give an Allen charge was not
coercive. The facts here closely mirror those in United States v. Bush, where we
held that an Allen charge was not coercive where it was given after four hours of
deliberation, and where the jury said that it was “at a stalemate.” 727 F.3d 1308,
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1320–21 (11th Cir. 2013). Here, the jury deliberated for more than five hours; the
district court waited before giving the Allen charge; it sent the jury back to continue
deliberations after discussion with counsel; it then confirmed that the jury was at a
stalemate; and the charge it ultimately gave was identical to the pattern Allen charge
except for the minor modification requested by Talley. Under these circumstances,
we do not find that the district court abused its discretion in giving an Allen charge.
Imposing mandatory minimum sentence without a jury finding of prior convictions
Talley contends that the district court erred in sentencing him under 21 U.S.C.
section 841(b)(1)(A) to a mandatory minimum life sentence based on his two prior
felony drug convictions but without a jury finding that he was previously convicted.
At the time of Talley’s sentencing, section 841 provided that if “any person commits
a violation of [section 841(b)(1)(A)] . . . after two or more prior convictions for a
felony drug offense have become final, such person shall be sentenced to a
mandatory term of life imprisonment without release . . . .” 21 U.S.C.
§ 841(b)(1)(A) (2010). As Talley concedes, the Supreme Court held in Almendarez-
Torres that prior convictions may be used to impose a mandatory minimum sentence
even though the prior convictions were not charged in the indictment or found by
the jury. 523 U.S. at 226–27. Because Almendarez-Torres has not been overruled,
we are bound by it. See United States v. James, 642 F.3d 1333, 1343 (11th Cir.
2011) (explaining that we are bound by Almendarez-Torres until the Supreme Court
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explicitly overrules it). The district court found that Talley had two prior felony
drug convictions, and Talley did not object to the admission of these convictions at
his trial. Because Talley didn’t challenge the admissibility of this evidence, or the
applicability of section 841(b)(1)(A), the district court did not err in sentencing
Talley to a mandatory minimum life sentence based on his two prior felony drug
convictions.
Sentencing guideline errors
Talley finally contends that the district court erred in calculating his advisory
sentencing guideline range by enhancing his sentence under guideline section
2D1.1(b)(1) because he possessed a firearm during the offense and under section
4B1.1(a) and (b)(1) because he was a career offender. But because Talley was
sentenced to mandatory life under section 841(b)(1)(A), “any error in the guidelines
calculations [was] harmless.” United States v. Chirino-Alvarez, 615 F.3d 1344,
1346 (11th Cir. 2010) (determining that despite the defendant’s challenge to a
three-level sentencing enhancement, any error was harmless because he was subject
to a mandatory minimum above the guideline range). Even if the district court erred
in calculating the advisory guidelines range for Talley’s sentence, the error would
not have affected his sentence because the district court was required to impose the
mandatory minimum life sentence under section 841(b)(1)(A). Thus, we do not need
to determine whether the district court erred in applying these enhancements because
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any change in Talley’s guidelines range would not have changed the mandatory
minimum sentence.
CONCLUSION
For these reasons, we affirm Talley’s convictions and sentences.
AFFIRMED.