U.S. v. Faust, No. 05-11329.

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Black
• Citation: 456 F.3d 1342
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nathan Deshawn FAUST, Defendant-Appellant.
• Docket Number: No. 05-11329.
• Decision Date: 21 July 2006

456 F.3d 1342 UNITED STATES of America, Plaintiff-Appellee,
v.
Nathan Deshawn FAUST, Defendant-Appellant. No. 05-11329. United States Court of Appeals, Eleventh Circuit. July 21, 2006.

[456 F.3d 1343]

David F. Pleasanton, David F. Pleasanton, P.A., West Palm Beach, FL, for Faust.

Anne R. Schultz, Sean Paul Cronin, Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before BLACK, BARKETT and COX, Circuit Judges.

BLACK, Circuit Judge:

Nathan Deshawn Faust appeals his conviction and 210-month sentence for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). He argues: (1) there is insufficient evidence to support his conviction; (2) the district court erred in admitting evidence under Federal Rule of Evidence 404(b) because the Government failed to provide adequate notice of its intent to introduce such evidence; and (3) the district court violated his Sixth Amendment right to a jury trial by enhancing his sentence based on conduct for which he was acquitted. For the

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reasons set forth more fully below, we affirm.

I. BACKGROUND

On June 12, 2003, police responded to a 911 call at a residence in West Palm Beach, Florida. Joy Wright opened the door but insisted she had not called 911. She did not allow the officers inside. Shortly thereafter, Faust appeared at the door, and Wright identified him as her husband who lived there. After leaving, the officers informed the narcotics unit of suspicious behavior at the residence.

Narcotics officers returned to the residence later that night. Soon after arriving, they witnessed Faust leaving the residence in a black rental car and observed a red Camaro parked outside. They then searched the trash at the curb outside the residence. This "trash pull" uncovered 17 aluminum baking pans, seven or eight of which contained scoring marks and white powder residue, and a small plastic bag also containing white powder residue. A trash pull conducted a few days later uncovered additional plastic bags with the same residue. The residue on the items tested positive for cocaine based on an initial field test.

Police obtained a search warrant and searched the residence on June 25, 2003. Wright was not at home, but four others, including Faust, were present. The officers found a bag containing 31.6 grams of cocaine on top of a kitchen cabinet next to an unopened letter addressed to Faust, and a baking pan bearing scoring marks similar to those on the pans found in the first trash pull. Throughout the house, they also found 94 grams of methylenedioxymethamphetamine (ecstasy), four firearms and ammunition, $2700 in cash, and what was believed to be incense, a known cutting agent. A digital scale that Faust later admitted was his, men's clothing and cologne, and family photographs including Faust were also found in the house. Following Faust's arrest, $745 in small bills was found in his pants pocket.

Faust was charged in a four-count superceding indictment.¹ At trial, the Government presented testimony from the landlord of the residence, who said both Wright and Faust originally signed the lease, but only Wright signed the renewal agreement. He also testified that Faust owned a red Camaro. The Government then called a fingerprint expert who testified that one of the baking pans found in the first trash pull contained Faust's fingerprint. Another expert testified that the items found in the residence, as well as the scoring marks on the baking pans, were consistent with the cooking, cutting, and dealing of crack cocaine. The same expert testified that the $2700 found in the residence was banded in "dealer folds" and that drug dealers predominately keep property in the name of other individuals to isolate themselves from their drug dealing activities. Finally, the Government offered testimony from Dwayne Cooley under Federal Rule of Evidence 404(b).²

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Cooley said he had a history of purchasing crack cocaine from Faust and had seen Faust cooking crack cocaine. In defense, Faust argued he did not live at the residence and had no knowledge of the drugs or guns found there. The jury convicted Faust of possession with intent to distribute cocaine, but acquitted him on the remaining three counts.

The pre-sentence investigation report (PSI) calculated Faust's base offense level at 20 pursuant to U.S.S.G. § 2D1.1(a)(3) and (c)(10) due to his responsibility for 31.6 grams of cocaine and 94 grams of ecstasy. Two levels were added under § 2D1.1(b)(1) because he possessed a dangerous weapon. However, because Faust was a career offender under § 4B1.1(a) and the statutory maximum for his convicted offense was 30 years,³ his offense level was set at 34 pursuant to § 4B1.1(b). With a criminal history category of VI, his Guideline range became 262 to 327 months' imprisonment.

Faust was sentenced after the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). At sentencing, he renewed his objections to the PSI, arguing his sentence should not be enhanced based on possession of ecstasy and weapons because he was acquitted of that conduct. The district court overruled the objection because it had considered the Guidelines as advisory and had based its calculations on a preponderance of the evidence. The district court, however, granted Faust's motion for a downward departure because his criminal history category seriously over-represented his criminal history. With a new criminal history category of IV, Faust's Guideline range became 210 to 262 months' imprisonment. The court considered the factors in 18 U.S.C. § 3553(a), and sentenced Faust to 210 months' imprisonment and 6 years' supervised release. This appeal followed.

II. DISCUSSION

A. Sufficiency of the Evidence

Faust first argues there is insufficient evidence on which to sustain his conviction because the Government cannot show he possessed the cocaine found at the residence. We review sufficiency of the evidence claims de novo. United States v. McDowell, 250 F.3d 1354, 1361 (11th Cir. 2001). To determine if evidence is sufficient to support a conviction, we must view the evidence in the light most favorable to the Government and decide whether a reasonable juror could have reached a conclusion of guilt beyond a reasonable doubt. United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir.1997). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt." United States v. Harris, 20 F.3d 445, 453 (11th Cir.1994).

To support a conviction under 21 U.S.C. § 841(a)(1), the Government must establish the defendant "(1) knowingly (2) possessed cocaine (3) with intent to distribute it." Id. Possession may be either actual or constructive. Id. "The government may prove constructive possession if it shows a defendant maintained dominion or control over the drugs or over the premises where the drugs are located." Id. Constructive possession can be established by either direct or circumstantial

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evidence and by inferences arising from the surrounding circumstances. See United States v. Pruitt, 763 F.2d 1256, 1264 (11th Cir.1985).

The Government presented sufficient evidence at trial to support the conclusion that Faust constructively possessed the cocaine found at the residence. In the first trash pull, police uncovered 17 baking pans, many containing cocaine residue and scoring marks consistent with the cutting of crack cocaine. Faust was seen leaving the residence on the night of the trash pull, and his fingerprint was found on one of the baking pans that contained cocaine residue. Moreover, when executing the search warrant, police discovered an unopened letter addressed to Faust next to the bag of cocaine and an additional baking pan bearing scoring marks. Throughout the house, the officers also found $2700 in cash, a digital scale, and incense, a known cutting agent. In addition, $745 in small bills was found on Faust's person. This evidence, bolstered by Dwayne Cooley's testimony regarding his past drug dealings with Faust, could, and did, convince a reasonable juror beyond a reasonable doubt that Faust participated in the production of crack cocaine and possessed the cocaine found at the residence for that purpose.

Furthermore, although Faust denied living at the residence, the Government presented sufficient evidence for the jury to infer that he did in fact live there or, at the very least, "maintained dominion or control . . . over the premises." See id. When police responded to the 911 call and Faust appeared at the door, Wright identified him as her husband who lived there. During the search, police discovered letters addressed to Faust, men's clothing and cologne, family photographs that included Faust, and a digital scale, which Faust admitted was his. Faust also signed the original lease and, although he did not sign the renewal agreement, an expert testified that such behavior was consistent with the actions of drug dealers. Finally, Faust testified that he could gain access to the residence at will; indeed, Wright was not at home on the night of the search, and Faust had let himself in. Based on this evidence, a reasonable juror could have concluded beyond a reasonable doubt that Faust maintained dominion or control over the residence. Accordingly, sufficient evidence supports Faust's conviction on a constructive possession theory.

B. Rule 404(b) Evidence

Faust next argues the district court erred in admitting Dwayne Cooley's testimony. He does not dispute the content of Cooley's testimony, but instead contends the Government failed to provide reasonable notice of its intent to introduce his testimony as required by Federal Rule of Evidence 404(b). The record directly contradicts this assertion.

Under Rule 404(b), evidence of prior acts is not...