                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0046n.06

                                   Nos. 14-5099 and 15-5515

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                   Jan 25, 2016
UNITED STATES OF AMERICA,                               )                      DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
QUINCY MAURICE FUQUA,                                   )       COURT FOR THE MIDDLE
                                                        )       DISTRICT OF TENNESSEE
       Defendant-Appellant.                             )
                                                        )


       Before: GRIFFIN and KETHLEDGE, Circuit Judges; and CLELAND, District Judge.*

       KETHLEDGE, Circuit Judge.         A federal jury convicted Quincy Maurice Fuqua of

possession with intent to distribute marijuana, possession of a firearm in furtherance of a drug-

trafficking crime, and being a felon in possession of a firearm. See 21 U.S.C. § 841(a)(1);

18 U.S.C. §§ 924(c), 922(g)(1). On appeal, he argues that the district court committed numerous

errors regarding his trial and sentence. We reject his arguments and affirm.

                                                I.

       In February 2010, the Nashville police searched the trash behind Fuqua’s house. They

found trace amounts of marijuana in numerous containers within the same trash bag, seven

smoked marijuana blunts, and a gun holster. They also found a receipt from the week before,



       *
        The Honorable Robert H. Cleland, United States District Judge for the Eastern District
of Michigan, sitting by designation.
Nos. 14-5099 and 15-5515, United States v. Fuqua


mail with Fuqua’s address on it, and paperwork with Fuqua’s Social Security Number on it. The

next day, Detective Matthew Grindstaff presented a magistrate judge with an affidavit detailing

the items found in the trash, explaining that the police had information that Fuqua’s phone

number was being used to deal drugs and that illegal drugs were being sold, packaged, or

consumed at Fuqua’s address. The affidavit added that the police had surveilled Fuqua’s house

and seen two cars parked out front, both of which were registered to Fuqua. The magistrate

judge issued a warrant authorizing the police to search Fuqua’s house for evidence of drug use

and distribution.

       Around midnight that same night, a group of officers went to Fuqua’s house to execute

the search warrant. According to the officers’ testimony, an officer turned on the emergency

blue lights on a patrol car outside the house and used its PA system repeatedly to announce

“Metro Police, search warrant, do not resist.” Meanwhile, Detective Grindstaff knocked three

times on Fuqua’s door, each time announcing “Metro Police.” When no one promptly answered,

Detective Atif Williams broke down the door. Grindstaff stepped forward to enter and continued

to announce himself. While in the doorway, he heard a gunshot and saw one person on the

couch by the door with his arms up. Grindstaff moved toward the kitchen, where he saw Fuqua

and Victor Owens each holding guns. Fuqua and Owens ducked behind a wall; then someone

reached around and shot at Grindstaff. Grindstaff ducked and fired back, hitting Fuqua in the

stomach. Grindstaff and another officer secured Owens and searched Fuqua. They found around

$1,640 in cash in Fuqua’s pockets. The police called paramedics, who took Fuqua to a hospital.

       When the officers searched Fuqua’s home, they found 19.5 grams of marijuana and two

ecstasy tablets inside a piece of a black plastic bag on the kitchen counter, a set of digital scales,

4.3 grams of marijuana in a clear plastic bag in a drawer in the kitchen, 4.0 grams of marijuana in



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Nos. 14-5099 and 15-5515, United States v. Fuqua


a plastic bag on the stereo in the living room, another 2.2 grams of marijuana in a newspaper

under the couch in the living room, a poster depicting different kinds of marijuana in the

basement, and three guns—including a .44 caliber revolver that Fuqua admitted was his. Fuqua

told police that he had fired the gun at the ceiling. But a crime-scene investigator testified that

there was no evidence of a bullet in the ceiling.

        A federal grand jury later indicted Fuqua for possessing marijuana with intent to

distribute, possessing and discharging a firearm in furtherance of a drug-trafficking offense, and

being a felon in possession of a firearm. See 21 U.S.C. § 841(a)(1); 18 U.S.C. §§ 924(c),

922(g)(1).

        Fuqua filed pretrial motions to suppress the evidence obtained pursuant to the search

warrant. He also moved to try the § 841(a) charge separately from the other charges. The

district court denied both motions.

        The jury convicted Fuqua on all counts. After his conviction, Fuqua filed a motion for

acquittal notwithstanding the verdict, but the district court denied his motion.

        Over several objections, the court sentenced Fuqua to 248 months in prison. Fuqua later

moved for a new trial or alternatively a new sentencing hearing. In support, Fuqua claimed to

have new evidence that Owens rather than Fuqua fired the second shot, which was the shot fired

at Grindstaff as he walked toward the kitchen. The district court denied his motion. Fuqua

appealed.

                                                    II.

        Fuqua challenges his conviction and his sentence on numerous grounds. We take each in

turn.




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                                                 A.

       Fuqua argues that the police lacked probable cause to search his house. Probable cause

means a “fair probability that contraband or evidence of a crime will be found in a particular

place.” United States v. Thomas, 605 F.3d 300, 307 (6th Cir. 2010) (internal quotation marks

omitted).

       Here, Grindstaff’s affidavit recited that several containers in Fuqua’s trash had been in

contact with marijuana, that the trash had been put out within the previous week, and that the

trash belonged to Fuqua. That information created a fair probability that the police would find

evidence of a crime in Fuqua’s house, and thus the district court properly denied his motion to

suppress. See United States v. Lawrence, 308 F.3d 623, 626-27 (6th Cir. 2002).

                                                 B.

       Fuqua argues that the district court should have tried his § 841(a) charge (for possession

with intent to distribute marijuana) separately from the other two charges. “[W]e review a

refusal to bifurcate for [an] abuse of discretion.” United States v. Moore, 376 F.3d 570, 573 (6th

Cir. 2004).

       Several facts support the district court’s denial of Fuqua’s motion: the court gave a

limiting instruction to the jury about Fuqua’s prior felony conviction; the parties stipulated to

Fuqua’s prior conviction so that its details were not revealed to the jury; and the court instructed

the jury to consider each charge separately. Moreover, the guns were relevant to the question

whether Fuqua was distributing drugs, so proof that he fired his gun would likely have been

presented in support of the distribution charge in any event. The district court’s denial of

Fuqua’s motion was not an abuse of discretion.




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Nos. 14-5099 and 15-5515, United States v. Fuqua


                                                C.

        Fuqua argues that Detective Grindstaff should not have been allowed to testify as both a

fact and opinion witness. On the second day of Fuqua’s trial, Grindstaff testified as a fact

witness about the searches of the house and trash. The next day, over Fuqua’s objection,

Grindstaff testified again—this time as an opinion witness—about whether the evidence found in

Fuqua’s trash and house was consistent with street-level drug trafficking.

        Fuqua argues that, as the government’s “victim,” Grindstaff’s opinion testimony was

necessarily unreliable. We review a district court’s admission of expert testimony for an abuse

of discretion. United States v. Collins, 799 F.3d 554, 574 (6th Cir. 2015). We have allowed “an

officer’s dual testimony as a fact and expert witness when [the court gives] an adequate

cautionary jury instruction” and there is a clear delineation between the officer’s fact and opinion

testimony. United States v. Lopez-Medina, 461 F.3d 724, 743-44 (6th Cir. 2006).

        Here the district court properly instructed the jury about the difference between fact and

opinion testimony before Grindstaff’s opinion testimony and at the conclusion of trial. And

Fuqua’s attorney had the opportunity to challenge Grindstaff’s credibility and possible biases on

cross-examination. Meanwhile, Fuqua cites no precedent to show that allowing a “victim” to

testify as an expert is in any way improper.          Fuqua’s criticisms are grounds for cross-

examination, not for excluding Grindstaff’s opinion testimony. The district court did not abuse

its discretion.

        Fuqua separately argues that Grindstaff was not qualified to offer opinion testimony

regarding the practices of drug dealers. Opinion witnesses “must be qualified by knowledge,

skill, experience, training, or education.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529

(6th Cir. 2008) (internal quotation marks omitted); Fed. R. Evid. 702. We routinely allow police



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Nos. 14-5099 and 15-5515, United States v. Fuqua


officers to testify that evidence points to drug distribution rather than to personal use. United

States v. Swafford, 385 F.3d 1026, 1030 (6th Cir. 2004). That is the kind of testimony that

Grindstaff offered here. Moreover, when Grindstaff testified, he had been a police officer for six

years.    Two of those years were with the “North Crime Suppression Unit,” where he

“investigate[d] street-level narcotics dealers,” and at least one more year was with the

“Specialized Investigations Division,” where he investigated “people . . . trafficking drugs into

the Nashville area.” The district court did not abuse its discretion when it determined that

Grindstaff could assist the jury in determining whether the evidence found at Fuqua’s house was

consistent with drug trafficking.

                                                  D.

         Fuqua argues that the district court improperly admitted the government’s Exhibit 8E.

That exhibit was a piece of a black plastic bag with multiple ziploc bags inside it. In slight

contrast, at Fuqua’s home, the piece of black plastic contained multiple pieces of torn and tied

plastic with marijuana inside each of them. Agents at the crime lab replaced those torn pieces of

plastic with the ziploc bags after they analyzed the marijuana inside.

         Fuqua failed to object to introduction of this evidence at trial, so we review only for plain

error. See United States v. Deitz, 577 F.3d 672, 688 (6th Cir. 2009). We “may correct the

claimed mistake only if there is (1) an error (2) that is plain, (3) that affected the party’s

substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of

judicial proceedings.” United States v. Henry, 797 F.3d 371, 374 (6th Cir. 2015) (internal

quotation marks omitted).




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Nos. 14-5099 and 15-5515, United States v. Fuqua


       The ziploc bags did not have a significant effect on Fuqua’s trial. As noted above, so far

as the record shows here, agents at the crime lab merely replaced the torn and tied pieces of

plastic inside the black bag with ziploc bags that more securely held the same contents. That the

agents swapped torn and tied “bags” for ziploc bags did not affect Fuqua’s substantial rights.

                                                E.

       Fuqua argues that the government failed to prove that he intended to distribute the

marijuana found in his home. We view the evidence in the light most favorable to the jury’s

verdict, and ask only whether any rational jury “could have found the essential elements of the

crime beyond a reasonable doubt.” United States v. Castano, 543 F.3d 826, 837 (6th Cir. 2008).

       Here, in Fuqua’s house, the police found about 30 grams of marijuana in several different

containers and locations, a digital scale next to one of the bags of marijuana, a poster showing

different types of marijuana, and three guns. The government also presented evidence that

Fuqua had $1,640 in cash in his pocket at the time of the search warrant. Detective Grindstaff

testified that the evidence collected at Fuqua’s house was consistent with street-level drug

trafficking. This evidence and testimony was sufficient to support Fuqua’s conviction under

§ 841(a).

       Relatedly, Fuqua argues that, as a matter of law, possession of 30 grams of marijuana

without proof of “remuneration” is not a drug-trafficking crime as required for conviction of

discharge of a firearm in furtherance of a drug-trafficking crime. See 21 U.S.C. § 841(b)(4).

The short answer to this argument is that the $1,640 in cash in Fuqua’s pocket was proof enough

of remuneration. We reject Fuqua’s argument.




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Nos. 14-5099 and 15-5515, United States v. Fuqua


                                                 F.

       Fuqua argues that the district court erred by increasing the mandatory maximum of his

§ 841(a)(1) sentence based on a prior felony-drug conviction. Section 841(b)(1)(D) provides that

a defendant who is convicted of possession with intent to distribute less than 50 kilograms of

marijuana may be sentenced to a maximum of five years’ imprisonment if he does not have a

prior felony-drug conviction, and ten years if he has such a conviction.              21 U.S.C.

§ 841(b)(1)(D). Meanwhile, 21 U.S.C. § 851 provides that

               [n]o person who stands convicted of an offense under this part
               shall be sentenced to increased punishment by reason of one or
               more prior convictions, unless before trial . . . the United States
               attorney files an information with the court (and serves a copy of
               such information on the person or counsel for the person) stating in
               writing the previous convictions to be relied upon.

       Here, the government filed a proper “information” detailing Fuqua’s prior felony drug

conviction in the State of Tennessee. Based on that prior conviction the district court held that

Fuqua’s maximum sentence for his possession-with-intent-to-distribute conviction was ten years.

Fuqua contends that the district court’s use of his prior conviction to increase his statutory-

maximum sentence violated his Sixth Amendment Rights.              We review “a constitutional

challenge to a defendant’s sentence de novo wherever the defendant preserves the claim for

appellate review.” United States v. Churn, 800 F.3d 768, 780 (6th Cir. 2015).

       Fuqua’s argument is meritless. In Almendarez-Torres v. United States, 523 U.S. 224,

228, 247 (1998), the Supreme Court held that the Sixth Amendment permits judges rather than a

jury to find the fact of a defendant’s prior conviction. That holding binds us here. Hence this

argument is meritless.

       Fuqua also suggests that the government’s use of § 851 in this case was vindictive. The

district court rejected that argument, explaining as follows:

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Nos. 14-5099 and 15-5515, United States v. Fuqua


               The Court finds that there is not evidence of either abuse of
               discretion in filing the 851 enhancement or a vindictive motive.
               The U.S. Government simply followed the process for filing an
               enhancement before trial which is done in many trials of this sort,
               and there was nothing irregular about that process that’s in the
               record.

We have no basis to set aside that finding here. Fuqua’s argument is meritless.

                                                G.

       Fuqua argues that the district court erred by enhancing his sentence under U.S.S.G.

§ 3A1.2(c)(1). That section increases a defendant’s offense guideline by six levels if, “in a

manner creating a substantial risk of serious bodily injury, the defendant . . . knowing or having

reasonable cause to believe that a person was a law enforcement officer, assaulted such officer

during the course of the offense[.]” U.S.S.G. § 3A1.2(c)(1). “We review de novo a district

court’s application of the Sentencing Guidelines when that application involves mixed questions

of law and fact and we review for clear error a district court’s findings of fact in connection with

sentencing.” United States v. Stafford, 721 F.3d 380, 400 (6th Cir. 2013).

       Fuqua contends that he did not know that he was shooting at a police officer when he

fired his weapon.    Per the testimony at trial, however, the police knocked and announced

themselves three times before they entered; the officers activated blue emergency lights on a

vehicle outside the home; Grindstaff heard people running inside the home; the officers

announced “Metro Police, search warrant, do not resist” as they entered the home; all of the

officers wore clearly marked uniforms; and Grindstaff saw Fuqua backpedal and fire more-or-

less directly at Grindstaff. This evidence supports the district court’s finding that Fuqua knew

that Grindstaff was a police officer when Fuqua shot his gun.

       Fuqua also contends that this finding too should have been made by a jury rather than a

judge. In support, he cites Alleyne v. United States, 133 S.Ct. 2151 (2013). But we have already


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held that “Alleyne dealt with judge-found facts that raised the mandatory minimum sentence

under a statute, not judge-found facts that trigger an increased guidelines range[.]” United States

v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014).          And the § 3A1.2(c)(1) enhancement only

increased Fuqua’s guidelines range here. Hence this argument too is meritless.

                                                 H.

       Fuqua challenges the district court’s use of U.S.S.G. § 2K2.1(c)(1) in determining the

base-offense level for Fuqua’s felon-in-possession conviction. Section 2K2.1(c)(1) provides

that, “[i]f the defendant used or possessed any firearm . . . cited in the offense of conviction with

knowledge or intent that it would be used or possessed in connection with another offense,” and

the base-offense level of that other offense is higher than the base-offense level specified in

§ 2K2.1(a), then the court should use the base-offense level for the other offense. U.S.S.G.

§ 2K2.1(c)(1).

       Here, the district court found that Fuqua used his gun in connection with attempted

murder when he shot at Grindstaff as he entered Fuqua’s home. Per § 2K2.1(c)(1), therefore, the

district court used the base-offense level for attempted second-degree murder (27) in determining

the guidelines range for Fuqua’s felon-in-possession conviction. See U.S.S.G. § 2A2.1(a).

       Fuqua challenges that “cross-reference” on three grounds.            First he says the cross-

reference is contrary to the Supreme Court’s holding in Alleyne. But again the cross-reference

only increased Fuqua’s guidelines range, so that contention is meritless.

       Second, Fuqua contends that insufficient evidence supports the district court’s finding

that Fuqua shot his gun at Grindstaff. Grindstaff’s own testimony, however, supports the court’s

finding.




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Nos. 14-5099 and 15-5515, United States v. Fuqua


       Third, Fuqua contends that the cross-reference was unlawful because he already had a

conviction under § 924(c). Fuqua overlooks, however, that the cross-reference here elevated his

base-offense level for his felon-in-possession conviction, not his drug-trafficking conviction.

The rule that Fuqua seeks to apply bars only enhancement of a drug conviction when a defendant

already has a § 924(c) conviction in connection with that drug conviction. See U.S. Sentencing

Commission, Office of General Counsel, Firearms Primer, 32 (March 2013) (“If the court

imposes a sentence for a drug offense along with a consecutive sentence under 18 U.S.C.

§ 924(c) based on that drug offense, it simply cannot enhance the sentence for the drug offense

for possession of any firearm.” (emphasis added)). Thus this contention too is meritless. The

district court properly applied the cross-reference.

                                                  I.

       Fuqua challenges the district court’s denial of his Rule 33 motion for a new trial, or in the

alternative, a new sentencing hearing. Fuqua first argues that he is entitled to a new trial because

he has new evidence that shows he did not fire the shot at Grindstaff. We review the court’s

denial of a new trial for an abuse of discretion. United States v. Jones, 399 F.3d 640, 647 (6th

Cir. 2005).

       A district court may grant a new trial if: “(1) the new evidence was discovered after the

trial; (2) the evidence could not have been discovered earlier with due diligence; (3) the evidence

is material and not merely cumulative or impeaching; and (4) the evidence would likely produce

an acquittal.” United States v. Heriot, 496 F.3d 601, 604 (6th Cir. 2007).

       Here, Fuqua presented as new evidence two written statements by Owens, who again was

the other man who was in possession of a gun when the police executed their search warrant at

Fuqua’s house. Owens signed these statements in 2014, after the district court had sentenced



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Nos. 14-5099 and 15-5515, United States v. Fuqua


Fuqua. In these statements Owens says that he, not Fuqua, fired the shot at Grindstaff as

Grindstaff moved towards the kitchen. The district court held that these statements did not

entitle Fuqua to a new trial. The court reasoned as follows:

               the most recent statements of Mr. Owens . . . do not rebut any
               element of the crimes for which the Defendant was convicted—
               possession of a firearm by a felon; possession and discharge of a
               firearm in furtherance of a drug trafficking crime; and possession
               of marijuana with intent to distribute it. To the extent the
               Defendant argues that the statements would call into question the
               testimony of Detective Grindstaff, the Court concludes that the
               statements are merely impeaching, rather than material to
               Defendant’s convictions, and would not likely produce an acquittal
               had the statements been available at trial.

United States v. Fuqua, No. 3:10-00065, (M.D. Tenn. May 5, 2015). This decision was not an

abuse of discretion.

       Fuqua similarly argues that he is entitled to a new sentencing hearing because, he says, he

did not fire the second shot at Detective Grindstaff. In seeking that hearing, however, Fuqua

filed a motion for a new trial under Federal Rule of Criminal Procedure 33. And that Rule

makes no provision for a new sentencing hearing. See Fed. R. Crim. P. 33. Fuqua has not cited

any case law that shows otherwise. Hence this argument also fails.

                                                J.

       Finally, Fuqua makes some other arguments without citing any case law to support them.

But “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.” Gradisher v. City of Akron, 794 F.3d 574, 586 (6th Cir.

2015) (internal quotation marks omitted). Thus we do not address these arguments.

                                          *     *     *

       The district court’s decisions in this case were both correct and thoroughly explained. Its

judgment is affirmed.

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