United States v. Shaka M. Smith

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 20, 2018
• Docket: 17-12526
• Status: Unpublished

Opinion

Case: 17-12526 Date Filed: 04/20/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12526 Non-Argument Calendar ________________________

D.C. Docket No. 6:16-cr-00192-PGB-KRS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHAKA M. SMITH,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(April 20, 2018)

Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM:

Shaka Smith appeals his conviction and sentence after a jury found him

guilty of being a felon in possession of a firearm or ammunition, 18 U.S.C. Case: 17-12526 Date Filed: 04/20/2018 Page: 2 of 4

§§ 922(g) and 924(a)(2). Smith argues that the district court abused its discretion

by admitting at trial evidence of uncharged controlled substances found with the

firearm in a backpack that he possessed. Smith also argues that the district court

erred in enhancing his sentence for possessing the firearm in connection with

another felony offense, U.S.S.G. § 2K2.1(b)(6)(B), based on the quantity of drugs

found near the firearm and his possession of them. We affirm.

We review evidentiary rulings for abuse of discretion. United States v.

Baker, 432 F.3d 1189, 1202 (11th Cir. 2005), abrogated on other grounds by

Davis v. Washington, 547 U.S. 813, 821 (2006). We review the interpretation of

the Sentencing Guidelines de novo and related factual findings for clear error.

United States v. Smith, 480 F.3d 1277, 1278 (11th Cir. 2007). Whether a firearm

was used “in connection with” a felony offense is a factual issue reviewed for clear

error. United States v. Whitfield, 50 F.3d 947, 949 & n.8 (11th Cir. 1995).

The district court did not abuse its discretion by admitting evidence of the

crack cocaine and methamphetamine found in Smith’s backpack alongside the

firearm. The controlled-substance evidence formed an integral part of the

witnesses’ accounts of the circumstances surrounding Smith’s charged offense.

Deputy Paul Bennett witnessed Smith remove the backpack from a car and carry it

with him as he ran from police. After Deputy Bennett lost sight of him, Smith

tossed the backpack. Among the items recovered from the backpack were a

2 Case: 17-12526 Date Filed: 04/20/2018 Page: 3 of 4

firearm, crack cocaine, methamphetamine, an inhaler, a paint-ball mask, a

vaporizer, and a notebook. After his arrest, Smith asked for his inhaler. The

presence of the firearm and controlled substances in the backpack with the inhaler

evidenced Smith’s knowing possession of the firearm.

The district court also did not err in concluding that the evidence of the

controlled substances was admissible under Federal Rule of Evidence 404(b) to

prove Smith’s intent and lack of mistake in his possession of the firearm. See Fed.

R. Evid. 404(b). Because the probative value of the evidence to prove his intent to

possess the firearm was not substantially outweighed by the danger of unfair

prejudice, the district court did not abuse its discretion by refusing to exclude it.

See Fed. R. Evid. 403. And the district court limited any prejudicial effect by

instructing the jury that it could consider the evidence only to determine whether

Smith had the intent to commit the offense charged in the indictment.

The district court also did not err in enhancing Smith’s sentence four levels

under section 2K2.1(b)(6)(B) of the Sentencing Guidelines. That enhancement

applies where the defendant “used or possessed any firearm or ammunition in

connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). Application

note 14 to section 2K2.1 states that subsection (b)(6)(B) applies “if the firearm or

ammunition facilitated, or had the potential of facilitating,” “any federal, state, or

local offense, other than the explosive or firearms possession or trafficking offense,

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punishable by imprisonment for a term exceeding one year, regardless of whether a

criminal charge was brought, or a conviction obtained.” Id. § 2K2.1, cmt n.14(A),

(C). And “in the case of a drug trafficking offense in which a firearm is found in

close proximity to drugs, drug manufacturing materials, or drug paraphernalia,” the

application of subsection (b)(6)(B) “is warranted because the presence of the

firearm has the potential of facilitating another felony offense.” Id. § 2K2.1, cmt

n.14(B). We have explained that “[a] firearm found in close proximity to drugs or

drug-related items simply has—without any requirement for additional evidence—

the potential to facilitate the drug offense.” United States v. Carillo-Ayala, 713 F.

3d 82, 92 (11th Cir. 2013) (emphasis in original) (quotation marks omitted). The

district court did not clearly err in finding that Smith was involved in drug-

trafficking. The district court credited testimony that the quantity of drugs found in

the backpack was consistent with trafficking and that the backpack contained no

drug paraphernalia consistent with personal use. Because the firearm was found in

close proximity to the drugs, it had the potential of facilitating a drug trafficking

offense.

AFFIRMED.