USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-11191 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KILPATRICK CORNELIUS MCKINNEY,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:20-cr-00103-RAH-SMD-1 ____________________ USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 2 of 8
2 Opinion of the Court 22-11191
Before ROSENBAUM, JILL PRYOR, and EDMONDSON, Circuit Judges. PER CURIAM: Kilpatrick McKinney appeals his convictions for possession of a firearm by a convicted felon, for possession of a firearm in fur- therance of a drug-trafficking offense, and for possession with in- tent to distribute drugs. McKinney also appeals his below-guide- lines 280-month sentence for his offenses. No reversible error has been shown; we affirm. I. In November 2018, members of the Tallapoosa County Nar- cotics Task Force executed an arrest warrant for McKinney at a trailer home in Kellyton, Alabama. Officers located McKinney hid- ing in the closet of the master bedroom and arrested him without incident. Immediately upon entering the home, officers smelled ma- rijuana and observed drug paraphernalia in plain view. After ob- taining a warrant to search the home, officers found two firearms; distribution quantities of methamphetamine, marijuana, and co- caine; and other items associated with narcotics distribution, in- cluding digital scales, baggies, and a vacuum sealer. A federal grand jury charged McKinney with possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 1); possession with intent to distribute metham- phetamine, marijuana, and cocaine, in violation of 21 U.S.C. § USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 3 of 8
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841(a)(1) (Counts 2, 3, 4); and with possession of a firearm in fur- therance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 5). Following trial, a jury found McKinney guilty of the charged offenses. The district court sentenced McKinney to a total sentence of 280 months: concurrent sentences of 220 months on Counts 1, 2, and 4 and 60 months on Count 3, plus a consecutive 60-month sentence on Count 5. II. A. McKinney first challenges the district court’s denial of his motions for judgment of acquittal. In support of his motions, McKinney argued the evidence was insufficient to establish that McKinney had “possession” of the guns and drugs found in the home.*
* In his appellate brief, McKinney also alleges that the officers violated inten- tionally his constitutional rights by executing a flawed search warrant. This passing reference -- made without citation to authority or supporting argu- ment -- does not raise properly this issue on appeal. See United States v. Cor- bett, 921 F.3d 1032, 1043 (11th Cir. 2019) (explaining that an appellant aban- dons an argument when he “raises it in a perfunctory manner without sup- porting arguments and authority” or “makes only ‘passing references’ to it that are ‘background to other arguments or [are] buried within other arguments, or both”). We also note that McKinney seemingly never raised this kind of argument to the district court. USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 4 of 8
4 Opinion of the Court 22-11191
“We review de novo a district court’s denial of judgment of acquittal on sufficiency of evidence grounds.” United States v. Ro- driguez, 732 F.3d 1299, 1303 (11th Cir. 2013). In determining the sufficiency of the evidence, “we consider the evidence in the light most favorable to the government, drawing all reasonable infer- ences and credibility choices in the government’s favor.” Id. We cannot overturn a jury’s verdict unless no “reasonable construction of the evidence would have allowed the jury to find the defendant guilty beyond a reasonable doubt.” Id. To obtain a conviction for “possession” of contraband, the government may show either actual or constructive possession. See United States v. Ochoa, 941 F.3d 1074, 1104 (11th Cir. 2019) (possession of a firearm); United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (possession of drugs). Constructive posses- sion is shown when the government establishes that the defendant has “ownership, dominion, or control over the contraband itself or dominion or control over the premises . . . in which the contraband was concealed.” Derose, 74 F.3d at 1185. Viewed in the light most favorable to the government, the evidence presented at trial was sufficient to permit a reasonable factfinder to conclude beyond a reasonable doubt that McKinney had constructive possession of the charged guns and drugs. The two firearms and the drugs were found inside the master bedroom in which McKinney was hiding when officers arrived. In that same bedroom, officers found items belonging to McKinney, including a package and mail addressed to McKinney at the Kellyton address. USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 5 of 8
22-11191 Opinion of the Court 5
Officers also found prescription pill bottles with McKinney’s name on them located in a bathroom attached to the master bedroom. McKinney’s driver’s license listed the Kellyton address as McKin- ney’s home address. Given the evidence tying McKinney to the bedroom in which the guns and drugs were located -- and the evidence tying McKinney to the Kellyton address -- a jury could infer reasonably that McKinney had constructive possession over the guns and drugs found in the home. See Ochoa, 941 F.3d at 1105 (concluding that sufficient evidence supported a finding of constructive posses- sion of ammunition when the ammunition was found in the same bedroom as the defendant’s personal identification cards and travel papers); United States v. Molina, 443 F.3d 824, 830 (11th Cir. 2006) (reversing the grant of judgment of acquittal because a reasonable jury could have found that the defendant exerted dominion or con- trol over a firearm found in the defendant’s bedroom nightstand together with the defendant’s passport). At the trial, McKinney testified that he did not live at the Kellyton address, that his parents owned the home, and that other people had access to the home. The jury, however, was free to reject McKinney’s testimony. See United States v. Hasner, 340 F.3d 1261, 1272 (11th Cir. 2003) (explaining that the jury can disbelieve a defendant’s testimony and treat the opposite of the testimony as true). Moreover, that other people might have had access to the home does not render insufficient the evidence supporting a rea- sonable inference of constructive possession. See Ochoa, 941 F.3d USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 6 of 8
6 Opinion of the Court 22-11191
at 1105; United States v. Flanders, 752 F.3d 1317, 1332 (11th Cir.
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USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-11191 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KILPATRICK CORNELIUS MCKINNEY,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:20-cr-00103-RAH-SMD-1 ____________________ USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 2 of 8
2 Opinion of the Court 22-11191
Before ROSENBAUM, JILL PRYOR, and EDMONDSON, Circuit Judges. PER CURIAM: Kilpatrick McKinney appeals his convictions for possession of a firearm by a convicted felon, for possession of a firearm in fur- therance of a drug-trafficking offense, and for possession with in- tent to distribute drugs. McKinney also appeals his below-guide- lines 280-month sentence for his offenses. No reversible error has been shown; we affirm. I. In November 2018, members of the Tallapoosa County Nar- cotics Task Force executed an arrest warrant for McKinney at a trailer home in Kellyton, Alabama. Officers located McKinney hid- ing in the closet of the master bedroom and arrested him without incident. Immediately upon entering the home, officers smelled ma- rijuana and observed drug paraphernalia in plain view. After ob- taining a warrant to search the home, officers found two firearms; distribution quantities of methamphetamine, marijuana, and co- caine; and other items associated with narcotics distribution, in- cluding digital scales, baggies, and a vacuum sealer. A federal grand jury charged McKinney with possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 1); possession with intent to distribute metham- phetamine, marijuana, and cocaine, in violation of 21 U.S.C. § USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 3 of 8
22-11191 Opinion of the Court 3
841(a)(1) (Counts 2, 3, 4); and with possession of a firearm in fur- therance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 5). Following trial, a jury found McKinney guilty of the charged offenses. The district court sentenced McKinney to a total sentence of 280 months: concurrent sentences of 220 months on Counts 1, 2, and 4 and 60 months on Count 3, plus a consecutive 60-month sentence on Count 5. II. A. McKinney first challenges the district court’s denial of his motions for judgment of acquittal. In support of his motions, McKinney argued the evidence was insufficient to establish that McKinney had “possession” of the guns and drugs found in the home.*
* In his appellate brief, McKinney also alleges that the officers violated inten- tionally his constitutional rights by executing a flawed search warrant. This passing reference -- made without citation to authority or supporting argu- ment -- does not raise properly this issue on appeal. See United States v. Cor- bett, 921 F.3d 1032, 1043 (11th Cir. 2019) (explaining that an appellant aban- dons an argument when he “raises it in a perfunctory manner without sup- porting arguments and authority” or “makes only ‘passing references’ to it that are ‘background to other arguments or [are] buried within other arguments, or both”). We also note that McKinney seemingly never raised this kind of argument to the district court. USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 4 of 8
4 Opinion of the Court 22-11191
“We review de novo a district court’s denial of judgment of acquittal on sufficiency of evidence grounds.” United States v. Ro- driguez, 732 F.3d 1299, 1303 (11th Cir. 2013). In determining the sufficiency of the evidence, “we consider the evidence in the light most favorable to the government, drawing all reasonable infer- ences and credibility choices in the government’s favor.” Id. We cannot overturn a jury’s verdict unless no “reasonable construction of the evidence would have allowed the jury to find the defendant guilty beyond a reasonable doubt.” Id. To obtain a conviction for “possession” of contraband, the government may show either actual or constructive possession. See United States v. Ochoa, 941 F.3d 1074, 1104 (11th Cir. 2019) (possession of a firearm); United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (possession of drugs). Constructive posses- sion is shown when the government establishes that the defendant has “ownership, dominion, or control over the contraband itself or dominion or control over the premises . . . in which the contraband was concealed.” Derose, 74 F.3d at 1185. Viewed in the light most favorable to the government, the evidence presented at trial was sufficient to permit a reasonable factfinder to conclude beyond a reasonable doubt that McKinney had constructive possession of the charged guns and drugs. The two firearms and the drugs were found inside the master bedroom in which McKinney was hiding when officers arrived. In that same bedroom, officers found items belonging to McKinney, including a package and mail addressed to McKinney at the Kellyton address. USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 5 of 8
22-11191 Opinion of the Court 5
Officers also found prescription pill bottles with McKinney’s name on them located in a bathroom attached to the master bedroom. McKinney’s driver’s license listed the Kellyton address as McKin- ney’s home address. Given the evidence tying McKinney to the bedroom in which the guns and drugs were located -- and the evidence tying McKinney to the Kellyton address -- a jury could infer reasonably that McKinney had constructive possession over the guns and drugs found in the home. See Ochoa, 941 F.3d at 1105 (concluding that sufficient evidence supported a finding of constructive posses- sion of ammunition when the ammunition was found in the same bedroom as the defendant’s personal identification cards and travel papers); United States v. Molina, 443 F.3d 824, 830 (11th Cir. 2006) (reversing the grant of judgment of acquittal because a reasonable jury could have found that the defendant exerted dominion or con- trol over a firearm found in the defendant’s bedroom nightstand together with the defendant’s passport). At the trial, McKinney testified that he did not live at the Kellyton address, that his parents owned the home, and that other people had access to the home. The jury, however, was free to reject McKinney’s testimony. See United States v. Hasner, 340 F.3d 1261, 1272 (11th Cir. 2003) (explaining that the jury can disbelieve a defendant’s testimony and treat the opposite of the testimony as true). Moreover, that other people might have had access to the home does not render insufficient the evidence supporting a rea- sonable inference of constructive possession. See Ochoa, 941 F.3d USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 6 of 8
6 Opinion of the Court 22-11191
at 1105; United States v. Flanders, 752 F.3d 1317, 1332 (11th Cir. 2014) (noting that constructive possession may be exclusive or shared with others). The district court committed no error in deny- ing McKinney’s motions for judgment of acquittal. B. McKinney next challenges the substantive reasonableness of his below-guidelines sentence. We evaluate the substantive rea- sonableness of a sentence under a deferential abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 41 (2007). In re- viewing the substantive reasonableness of a sentence, we examine “the totality of the circumstances, including . . . whether the statu- tory factors in § 3553(a) support the sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). The district court must impose a sentence that is “sufficient, but not greater than necessary, to comply with the purposes” of 18 U.S.C. § 3553(a)(2), which include the need for a sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment, deter criminal conduct, and protect the public from future crimes. 18 U.S.C. § 3553(a). We will not vacate a sen- tence on substantive-reasonableness grounds unless “we are left with the definite and firm conviction that the district court com- mitted a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” United States v. Cabe- zas-Montano, 949 F.3d 567, 611 (11th Cir. 2020) (quotation omit- ted). USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 7 of 8
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The party challenging the sentence bears the burden of es- tablishing that the sentence is unreasonable in the light of both the record and the section 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). McKinney has failed to demonstrate that his sentence sub- stantively is unreasonable. That McKinney qualified as a career of- fender and as an armed career offender -- classifications resulting in an advisory guidelines range between 360 months’ to life imprison- ment -- is undisputed. McKinney, however, moved for a down- ward variance; he contended that he had committed no violent crime and that his criminal record overstated the seriousness of his past offenses. McKinney requested a statutory-mandatory-mini- mum sentence of 20 years. The district court agreed that McKinney’s criminal history was “a little bit overstated” and determined that the career-of- fender and armed-career-offender sentencing enhancements were not justified under the circumstances. The district court reviewed McKinney’s lengthy criminal record, which included multiple drug convictions and convictions for resisting arrest, attempting to elude, and for reckless endangerment. Given the nature and cir- cumstances of McKinney’s instant gun and drug offenses and McKinney’s extensive criminal history, the district court concluded reasonably that a sentence of 280 months’ imprisonment (below- guidelines) was sufficient and necessary to reflect the seriousness of the offenses, to provide respect for the law, to provide adequate deterrence, and to protect the public. USCA11 Case: 22-11191 Document: 25-1 Date Filed: 04/07/2023 Page: 8 of 8
8 Opinion of the Court 22-11191
Generally speaking, a sentence -- like McKinney’s -- that is imposed below the statutory maximum sentence and below the advisory guidelines range is indicative of reasonableness. See United States v. Stanley, 739 F.3d 633, 656 (11th Cir. 2014). That the district court declined to vary further below the guidelines range as requested by McKinney does not make McKinney’s sen- tence unreasonable. The district court acted within its considera- ble discretion in weighing the pertinent factors, including the na- ture and extent of McKinney’s criminal history. See United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (“The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court, and we will not substitute our judgment in weighing the relevant factors.” (quotation and altera- tion omitted)). AFFIRMED.