United States v. McCoy, 121807 FED11, 07-10619

Docket Nº:07-10619
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES FRANKLIN MCCOY, Defendant-Appellant.
Case Date:December 18, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JAMES FRANKLIN MCCOY, Defendant-Appellant.

No. 07-10619

United States Court of Appeals, Eleventh Circuit

December 18, 2007

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Florida D. C. Docket No. 06-20265-CR-ASG

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

James Franklin McCoy appeals his conviction and 264-month sentence for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e)(1). For the reasons set forth below, we affirm.

I. BACKGROUND

On April 24, 2006, approximately ten Miami police officers went to 415 NW 9th Street, Apartment 9 ("Apartment 9") to execute a felony arrest warrant for Andrea McWhorter, who was known to carry weapons and was a suspect in at least 3 murders. Miami Police Detective Wayne Tillman received an anonymous tip that McWhorter had exited a compact beige car and entered Apartment 9. Before the officers police knocked on the door, McCoy, who was known to the officers as a felon, appeared in the doorway. As McCoy was moving out of the doorway, Detective Suarez saw a chrome revolver lying on the floor in the apartment near the couch and yelled "gun." Around the time that McCoy opened the door to the apartment, Tillman saw a beige car leaving at a high rate of speed, but he testified that he did not try to stop the vehicle because Suarez had just yelled "gun."

Police handcuffed McCoy and patted him down for weapons. During the pat-down, police found keys to the apartment in McCoy's pockets. The officers testified that they entered the apartment to make sure that neither McWhorter nor anyone else was inside. After the officers were inside, McCoy told an officer that no one was inside the apartment. Once the officers cleared the apartment, they exited and obtained a search warrant. Pursuant to that search warrant, police recovered the firearm along with crack cocaine, marijuana, and drug paraphernalia.

Before trial, McCoy moved to suppress the evidence that the officers obtained from the pat-down and search. The magistrate judge recommended that McCoy's motion to suppress be denied. The magistrate found that, pursuant to Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), a protective sweep was permissible because McCoy was lawfully arrested within minutes of the search. The district court affirmed the report and denied McCoy's motion to suppress.

At trial, Tillman testified that McCoy was not a lessee of the apartment, and the police did not find any of McCoy's clothes in the apartment. Police did find, however, a letter that was postmarked October 2005 and addressed to McCoy at Apartment 9. Suarez also identified copies of Western Union wire transfer receipts found in a kitchen drawer in which McCoy was listed as the transferor. The Maintenance Manager for the building testified that McCoy lived at Apartment 9 for about a year and a half.

McCoy stipulated that he was a convicted felon and that the chrome revolver found near the couch had traveled in interstate and foreign commerce. McCoy testified that he lived with his mother and sister, but that McWhorter had allowed him to rest on the couch in Apartment 9 on the day of the arrest because he had spent the previous night in the hospital. After resting for about forty-five minutes to an hour, McCoy says he got up, opened the door, and found the police outside. He claims, however, that he did not see a gun while he was in the apartment. McCoy explained that the letter that was found inside Apartment 9 came from a prisoner friend who used to live in the same building, and "he probably figured out that . . . [McCoy] might get that letter from, from [McCoy's friend]." According to McCoy, police found the Western Union receipts in his truck where McCoy kept them.

After the defense rested, McCoy failed to reassert his motion for a judgment of acquittal and the jury found McCoy guilty of possession of a firearm by a convicted felon.1 In the presentence investigation report ("PSI"), the probation officer classified McCoy as an armed career criminal under 18 U.S.C. § 924(e). Based on a total offense level of 34 and...

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