         Case: 15-13385   Date Filed: 04/12/2017   Page: 1 of 41


                                                        [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 15-13385
                     ________________________

              D.C. Docket No. 2:14-cr-00020-JES-CM-5



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

versus

BOBBY LESANE, JR.,
MAURY CARSON MORRIS,

                                            Defendants - Appellants.


                     ________________________

                           No. 15-14440
                     ________________________

              D.C. Docket No. 2:14-cr-00020-JES-CM-1



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

versus
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LORENZO D. HOOD,

                                                         Defendant - Appellant.



                              ________________________

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

                                      (April 12, 2017)



Before TJOFLAT, HULL, and O’MALLEY, * Circuit Judges.

O’MALLEY, Circuit Judge:

       In this consolidated appeal, defendants Bobby Lesane Jr., Maury Carson

Morris, and Lorenzo D. Hood challenge their convictions. Defendant Lesane also

challenges his sentence. After review of the record and the parties’ briefs, and

with the benefit of oral argument, we affirm in part, vacate in part, and remand.

                                   I. BACKGROUND

       We address the background in four parts: the evidence supporting the

defendants’ convictions, the proceedings in the district court, the defendants’

convictions and sentences, and the circumstances surrounding this appeal.




       *
         Honorable Kathleen M. O’Malley, United States Circuit Judge for the Federal Circuit,
sitting by designation.
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A.    Facts Underlying the Defendants’ Convictions

      This case arises from a drug trafficking operation in Lee County, Florida.

Below, we set forth the evidence pertaining to the operation and investigation of

this drug activity.

      1.     Nixon’s Controlled Purchases

      In January 2013, an individual named Jason Nixon went to a house on Utana

Avenue in Fort Myers, Florida to buy drugs from defendant Hood. During this

meeting, Nixon noticed pots and pans for cooking drugs inside the house and a

surveillance camera monitoring the front door. Nixon bought an ounce of cocaine

from Hood during this January 2013 transaction.

      In February 2013, the Fort Myers Police Department (“FMPD”) began

investigating Nixon for drug activity. On three separate occasions during that

month, a confidential informant met with Nixon and bought marijuana and

methylenedioxy-methamphetamine, also known as MDMA or ecstasy. In May

2013, FMPD officers confronted Nixon about these drug sales. To avoid

prosecution, Nixon agreed to cooperate with the FMPD and to participate in

controlled drug purchases.

      With Nixon’s cooperation, the FMPD continued their ongoing investigation

of a residence located at 6226 Demery Circle in Fort Myers (“6226 Demery”).

Police had been investigating this home for drug activity since April 2013. Based


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on their investigations, FMPD officers knew that the residence at 6226 Demery

was equipped with surveillance devices so that the occupants could see any activity

taking place outside the house. Officers also knew, based on their surveillance of

6226 Demery, that defendant Hood was frequently at the residence, along with his

brother James Hood and his girlfriend Edricka Cook.1

       Sometime in April or May 2013, Nixon conducted his first controlled drug

transaction at 6226 Demery. FMPD officers monitored, but did not record, this

first transaction. During this first controlled buy, Nixon went to 6226 Demery,

where he met James Hood at the back door and asked for a “poolie”—around 3.5

grams—of cocaine. After Nixon gave James Hood the money, defendant Morris

came to the door and gave Nixon the cocaine. This amount of cocaine had a value

of $160. After leaving 6226 Demery, Nixon handed the drugs over to FMPD

officers.

       From May to September 2013, with Nixon’s help, the FMPD carried out and

recorded eight controlled drug purchases at 6226 Demery. During each

transaction, Nixon carried concealed video and audio recording devices. On May

31, 2013, Nixon bought drugs from James Hood at 6226 Demery; defendant

Lesane also was present. On June 26, 2013, Nixon again bought drugs from James

       1
        James Hood is not involved in this appeal but was charged along with defendants
Lesane, Morris, and Hood. James Hood pled guilty before trial. FMPD officers interviewed
James Hood during their investigation of 6226 Demery, but James Hood refused to cooperate as
a confidential informant.
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Hood at 6226 Demery. Nixon testified that defendant Hood was in the kitchen

during this transaction. On June 28, 2013, Nixon bought cocaine from James

Hood at 6226 Demery. An individual named Walter Campbell was present at the

residence during that transaction.2 On July 3, 2013, Nixon went to 6226 Demery

and bought cocaine from James Hood and Walter Campbell.

       On August 2, 2013, Nixon conducted another controlled buy at 6226

Demery, during which he purchased cocaine from defendant Lesane. During this

transaction, Nixon gave defendant Lesane money and told defendant Lesane how

much cocaine he wanted to buy. Defendant Lesane then walked into the house,

through the living room, and into a room off to the right. Defendant Lesane then

came back and handed Nixon the drugs.

       On August 8, 2013, Nixon bought cocaine from defendant Hood at 6226

Demery. James Hood and Walter Campbell were also present. During this August

8 transaction, Nixon asked defendant Hood for a poolie of cocaine. Defendant

Hood then walked into the house, through the kitchen, and into a room off to the

right. Defendant Hood returned with a large bag of cocaine, from which he

measured out a poolie for Nixon. Nixon paid defendant Hood $160 for this

amount of cocaine.



       2
        Walter Campbell is not involved in this appeal but was charged along with defendants
Lesane, Morris, and Lorenzo Hood. Walter Campbell pled guilty before trial.
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      On September 7, 2013, Nixon again bought drugs at 6226 Demery. For each

of these controlled purchases, FMPD officers searched Nixon beforehand to ensure

that he was not in possession of any other contraband. FMPD officers also

provided Nixon with money for each controlled purchase. The amount varied, but

the average transaction was for $160. After each recorded purchase, Nixon handed

the drugs over to FMPD officers.

      2.     September 9, 2013 Search at 6226 Demery

      On September 9, 2013, FMPD officers executed a search warrant at 6226

Demery. As officers approached the house, three people fled from the back door.

Cook was the only person in the house when officers entered. Officers found Cook

in a bedroom, where she was on her knees with her hands underneath the bed.

When officers looked under the bed, they discovered a bag containing cocaine and

heroin. In various places throughout the house, officers found more cocaine, cash,

digital scales, and drug paraphernalia.

      In addition, officers recovered from the house several items of mail

addressed to defendant Hood and Cook at the address 1606 Hibiscus Avenue in

Lehigh Acres (“1606 Hibiscus”), including a “notice to pay rent or quit” addressed

to Cook at 1606 Hibiscus. FMPD officers also recovered footage from the

surveillance equipment used to monitor activity outside the residence. The

footage, which spanned a period reaching back to about two weeks before the


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FMPD searched the residence, showed numerous people coming and going from

6226 Demery on a regular basis. The footage also showed what police believed to

be twenty or thirty drug transactions taking place at 6226 Demery over a two-week

period.

      Based on the footage, FMPD officers believed that one group of people

consistently worked inside the residence, while other individuals regularly came to

the residence to purchase drugs. Defendants Lesane, Hood, and Morris, as well as

Walter Campbell, all appear in the footage from 6226 Demery, apparently

conducting drugs transactions.

      The portion of the footage covering September 9, 2013, shows that

defendants Lesane and Hood, as well as Walter Campbell, were all present at 6226

Demery on that day, but that they left a few hours before FMPD officers executed

the search warrant. The September 9 footage also showed defendant Morris and

James Hood fleeing the residence as officers arrived to execute the search warrant.

      3.    Herman’s Controlled Purchases

      After executing the search warrant on September 9, 2013, the FMPD

continued their surveillance of 6226 Demery. During this period following the

September 9 search, officers observed an individual named Nicholas Herman at

6226 Demery on several occasions. Herman testified that he had been buying

personal use amounts of cocaine and heroin from defendant Hood and his


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associates for eight or nine years. Herman testified that he bought drugs from

defendant Morris and James Hood at least twenty times each. Herman also saw

defendant Hood selling drugs to others.

      Sometime between September 9 and October 1, 2013, FMPD officers

stopped Herman while he was driving away from a visit to 6226 Demery. Officers

discovered that Herman was carrying drugs and eventually charged him with

possession of cocaine and heroin. To avoid prosecution, Herman agreed to

cooperate as a confidential informant.

      During October 2013, Herman made a series of controlled, recorded drug

purchases from 6226 Demery. On October 1, Herman went to 6226 Demery and

bought cocaine and heroin from James Hood. On October 15, Herman went to

6226 Demery, gave money to defendant Hood, and received cocaine and heroin

from someone else inside the house. On October 16, Herman went to 6226

Demery and bought cocaine and heroin from James Hood. On October 17,

Herman went to 6226 Demery and bought cocaine and heroin from someone who

may have been James Hood. On October 18, Herman went to 6226 Demery, again

purchasing cocaine and heroin.

      On October 23, Herman went to 6226 Demery, where he bought cocaine and

heroin. The video from this transaction showed that defendant Morris entered the

residence at 6226 Demery after Herman initially arrived. Herman testified that, on


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that day, defendant Morris came from a different house, located next door to 6226

Demery. Upon arriving at 6226 Demery from the house next door, Morris

weighed out the drugs for Herman.

      After Herman completed this series of controlled buys, FMPD officers asked

Herman to identify the individuals from whom he bought drugs at 6226 Demery.

FMPD officers prepared photo lineups and asked Herman to identify the

individuals with whom he dealt during the October 23 transaction. Using these

lineups, Herman identified defendant Morris.

       4.   October 24, 2013 Search of 6226 Demery and 6220 Demery

      On October 24, 2013, FMPD officers executed a second search warrant at

6226 Demery. When officers arrived at 6226 Demery, no one was inside the

house; the defendants here—Hood, Lesane, and Morris— were all next door.

During the search of 6226 Demery, FMPD officers found cocaine hidden in

various places throughout the house. Officers also found two digital scales in the

kitchen.

      At the same time, officers executed a search warrant for the residence next

door—6220 Demery Circle (“6220 Demery”). Cook owned the property at 6220

Demery. An individual named Terry Little, who lived at 6226 Demery during the

fall of 2013, testified that defendant Hood lived next door at 6220 Demery.




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      Little also testified that, during the time he lived at 6226 Demery, he saw

defendant Morris at 6226 Demery on a daily basis. In addition, Little testified that

he bought cocaine from “pretty much everybody” at 6226 Demery, including

defendants Hood and Morris, and James Hood. Little stated that everyone at 6226

Demery seemed to be working for defendant Hood.

      5.     October 29, 2013 Arrest of Defendant Hood

      On October 29, 2013, FMPD officers, with the help of several United States

Marshals, went to locate defendant Hood and execute a warrant for his arrest.

Officers thought that they might find defendant Hood at 1606 Hibiscus, because

his driver’s license listed this residence and because a motorcycle that defendant

Hood regularly used was parked near the front door of that house.

      Before entering the house, officers surveilled the property for a period of

two or three hours. During that period, officers observed someone peeking

through the blinds of a window next to the front door on the north side of the

house. It appeared that the person was using a black object to push through the

blinds and look outside.

      Around two o’clock in the afternoon, a group of approximately six FMPD

officers and marshals approached the house at 1606 Hibiscus, knocked on the front

door, and announced their presence. After receiving no response for several

minutes, officers breached the door. Once inside, the officers yelled for defendant


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Hood to come out. After a few seconds, he emerged from a room in the rear on the

south side of the house and began to walk into the foyer toward the officers.

Officers then took defendant Hood into custody in the foyer. After taking him into

custody, officers took defendant Hood outside the home. One officer testified that

defendant Hood’s attitude and conduct appeared to be “evasive.”

      While inside the home, officers conducted what they alleged to be a

protective sweep search. Because defendant Hood emerged from a room in the

rear on the south side of the house, the officers believed that someone else might

have been in the front on the north side of the house—where they had seen

someone peeking through the blinds.

      Officers first checked for other people in the kitchen area of the house.

There, the officers found scales, drug paraphernalia, and what looked like crack

cocaine residue on the counter.

      While checking the room with the window in which they had seen

movement, officers found a rifle and an unattached rifle scope. According to two

officers, this rifle scope was consistent with the object they previously saw poking

through the blinds. Officers also noticed a closet inside this room, the door to

which was ajar. Through the open closet door, officers could see a number of

rifles and shotguns inside the closet.




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         Meanwhile, other officers looked through the south side of the house, from

which defendant Hood had emerged. Officers found a variety of ammunition,

some of which was compatible with firearms found in the house. In addition,

officers found another rifle equipped with attachments like a tripod, scope, and

light.

         In the master bedroom, officers found a box containing cocaine and a device

commonly used to press loose cocaine into a block. On the dresser in the master

bedroom, officers discovered mail addressed to defendant Hood at 1606 Hibiscus.

According to an officer who participated, the sweep of 1606 Hibiscus lasted no

longer than three or four minutes in total.

         Detective Christopher Tice testified that, on October 29, 2013, he received

word from the Lee County Warrants Unit that officers were at 1606 Hibiscus

executing an arrest warrant for defendant Hood. The officers told Tice that they

saw narcotics-related items in plain view while sweeping the home. That same

day, Detective Tice obtained a search warrant for 1606 Hibiscus, which he

executed that same day. During his search of the residence, Tice took photographs

of the drugs, drug paraphernalia, firearms, and ammunition in the house.

         At trial, defendant Hood and the government entered a stipulation which

stated that the parties “agree that, on October 29, 2013, the Defendant Lorenzo D.




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Hood was a convicted felon whose rights to [possess] firearms and ammunition

had not been restored by the State of Florida.”

      6.     March 14, 2014 Interview with Defendant Hood

      On March 14, 2014, an agent from the Drug Enforcement Administration

interviewed defendant Hood. After being advised of his right to remain silent,

defendant Hood stated that he sold drugs for financial gain and that he had sources

of supply in Lee County and on Florida’s east coast. Defendant Hood further

stated that he used 6226 Demery as a drug distribution location. In particular,

defendant Hood admitted that he sold both cocaine and heroin.

      7.     Other Arrests and Statements in Jail

      On June 26, 2014, defendant Morris was arrested. Defendant Lesane, who

was already in state custody, was transferred to federal custody after his indictment

in this case. While they were incarcerated in the Charlotte County jail, defendants

Hood and Morris discussed this case with inmate Gary Williams. Defendant Hood

told Williams that he was selling cocaine at such a high rate that it did not matter

that the cocaine was so expensive to obtain. He told Williams that the guns at his

house were his, that he was unsure whether one of the guns at his house was fully

automatic, and that he was concerned about receiving a sentence enhancement for

having automatic weapons. Defendant Hood further told Williams that Cook was

going to claim that the guns were hers because the house was in her name.


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Defendant Morris told Williams that he sold small bags of heroin and cocaine out

of one of the houses.

B.    District Court Proceedings

      On May 14, 2014, the government filed a superseding indictment charging

defendants Hood, Lesane, and Morris, as well as James Hood and Walter

Campbell, with various drug and gun offenses. James Hood and Walter Campbell

pled guilty to all charges against them.

      1.     Charges Against Defendants Lesane, Morris, and Hood

      The superseding indictment charged defendant Lesane with: conspiracy to

distribute and possess cocaine, cocaine base, and heroin with intent to distribute,

between 2004 and 2013, in violation of 21 U.S.C. § 846 (Count 1); and possession

of cocaine with intent to distribute and distribution of cocaine, on August 2, 2013,

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 4).

      The superseding indictment charged defendant Morris with: conspiracy to

distribute and possess cocaine, cocaine base, and heroin with intent to distribute,

between 2004 and 2013, in violation of 21 U.S.C. § 846 (Count 1); and possession

of heroin with intent to distribute and distribution of heroin, on October 23, 2013,

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 7).

      The superseding indictment charged defendant Hood with: conspiracy to

distribute and possess cocaine, cocaine base, and heroin with intent to distribute,


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between 2004 and 2013, in violation of 21 U.S.C. § 846 (Count 1); possession of

cocaine with intent to distribute and distribution of cocaine, on August 8, 2013, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 5); possession of

cocaine and heroin with intent to distribute, on September 9, 2013, in violation of

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 6); possession of cocaine with

intent to distribute, on October 29, 2013, in violation of 21 U.S.C. § 841(a)(1) and

18 U.S.C. § 2 (Count 8); and possession of firearms and ammunition as a

previously convicted felon, on October 29, 2013, in violation of 18 U.S.C. § 922(g)

(Count 9).

      2.     Defendant Hood’s Pretrial Motion to Suppress

      On August 25, 2014, defendant Hood filed a motion to suppress evidence

obtained as a result of the October 29, 2013 sweep of the house at 1606 Hibiscus.

In his motion, Hood argued that, after he was arrested and taken outside the home,

officers re-entered the home without legal justification.

      On October 7, 2014, the magistrate judge held a hearing on the motion and,

on October 20, 2014, the magistrate judge entered a report recommending that the

motion to suppress be denied. In that report, the magistrate judge found that the

officers who searched defendant Hood’s home had a reasonable belief that

someone else was inside the house, and thus that they were entitled to engage in a

protective sweep for their own safety. The magistrate judge further found that the


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search was appropriate in scope and duration and that the evidence discovered in

plain view could be properly used to obtain a search warrant, which officers then

did at 1606 Hibiscus. Alternatively, the magistrate judge found that, even if the

sweep was invalid, the officers had sufficient probable cause to seek a search

warrant based on their discovery of drug paraphernalia in plain view so that the

discovery of the confiscated evidence would have occurred in any event.

      On December 10, 2014, over defendant Hood’s objections, the district court

adopted the magistrate judge’s report without alteration or addition, and denied the

motion to suppress.

      3.     Trial

       On March 10, 2015, defendants Lesane, Morris, and Hood jointly proceeded

to jury trial. None of the defendants moved to sever their trial from that of the

others. During opening statements, counsel for the government made the

following comment about the nature of the case:

      As Judge Steele told you earlier today, this case is about drugs and it’s
      about guns. The defendants Lorenzo Hood, Bobby Lesane, and
      Maury Morris are each charged with conspiracy to possess and
      distribute cocaine, cocaine base or crack cocaine, and heroin. That
      conspiracy began back around 2004 and continued into 2013.

Morris’s counsel did not object to this statement.

      At the close of the government’s case, defendant Hood moved for a

judgment of acquittal as to Counts 1, 6, and 9. Defendants Morris and Lesane each


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moved for a judgment of acquittal as to Count 1. The district court denied all of

these motions.

      After the denial of the Rule 29 motions, defendants Hood, Morris, and

Lesane announced their intention not to testify. Defendants Hood and Lesane

rested without presentation of evidence. Defendant Morris presented the testimony

of Angelique Brown, his fiancée. Brown testified, among other things, that she

never saw defendant Morris with James Hood, defendant Hood, defendant Lesane,

or Walter Campbell.

      During closing statements, counsel for the government made the following

statement about footage showing defendant Morris at 6226 Demery:

      Now, somewhat similarly to Bobby Lesane, on [the government’s
      video exhibit], for one, you see Maury Morris chasing after
      somebody. Mr. Morris comes out the door, goes back in, comes out
      again, with something that, quite frankly, appears to be a handgun in
      his left hand, and he chases after somebody.

Again, Morris’s counsel did not object to this statement. Instead, he discounted

this evidence during his closing statement, noting that the government had not

taken the time to blow up or enhance the image to show whether he was, in fact,

carrying a firearm.




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C.    Convictions and Sentences

      1.     Lesane

      On March 20, 2015, the jury found defendant Lesane guilty of Counts 1 and

4. On July 20, 2015, the district court held a sentencing hearing as to defendant

Lesane. The presentence investigation report (“PSR”) indicated that defendant

Lesane qualified as a career offender under the sentencing guidelines. See

generally U.S.S.G. § 4B1.1. The PSR stated that defendant Lesane’s offenses of

conviction constituted controlled substance offenses, and that he also had two prior

felony convictions for either a crime of violence or a controlled substance offense.

First, in 2005, defendant Lesane was convicted of possession with intent to sell a

controlled substance within 1,000 feet of a school and possession of marijuana

with intent to sell (both on the same occasion). Second, on October 24, 2014,

defendant Lesane pled nolo contendere to burglary of an unoccupied dwelling.

With the career offender enhancement, the PSR calculated defendant Lesane’s total

offense level as 32 and his criminal history category as VI. This yielded a

guidelines range of 210 to 262 months’ imprisonment.

      At the sentencing hearing, defendant Lesane did not formally object to any

aspect of the PSR. The district court adopted the factual statements in the PSR

and, in turn, the PSR’s application of the guidelines. Before the district court

pronounced sentence, counsel for defendant Lesane offered argument regarding the


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2014 conviction for burglary of an unoccupied dwelling. Defendant Lesane’s

attorney made the following statements during the hearing:

      Mr. Lesane is a career offender because of the two offenses. The
      second offense is burglary of an unoccupied dwelling, unarmed. That
      case was from 2014, or after the offenses for his conviction in federal
      court. Or after the timing of the convictions in federal court. Or when
      he committed those offenses.

      Right now he’s pled guilty, but is waiting on sentence . . . . [H]e pled
      guilty pursuant to a plea agreement. He has not been adjudicated
      guilty, however, he’s pled in open court with a plea agreement that’s
      been accepted by the judge.

      Under 4b1.1 that is a determination of guilt, Your Honor. But for that
      one offense, which occurred after the transaction for which he went to
      trial here, Your Honor, that takes him up eight levels, as a career
      offender . . . .

      We would argue, Your Honor, that under 4A1.3, that that is—would
      over-represent his criminal history, a likelihood that Mr. Lesane
      would commit other crimes and respectfully request a downward
      departure.

When asked by the district court whether he was “contesting the accuracy of

[defendant Lesane’s] classification of being a career offender,” the attorney

responded:

      I cannot do that because the language says that the guilt—the guilt of
      the Defendant has been established whether by guilty plea, trial, or
      plea of nolo contendere. Which he’s made the guilty plea, but he did
      not get adjudicated. It doesn’t say you have to be adjudicated in a
      state court. But our main argument, the offense that determines him
      to be a career offender is after the drug transaction conspiracies for
      which he was convicted, Your Honor.



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      The district court noted that it was “required to impose a sentence that is

sufficient, but not greater than necessary, after considering all the factors in Title

18, United States Code, Section 3553, and that it “considered those factors,

whether we discuss them individually or not.” The district court then sentenced

defendant Lesane to 210 months’ imprisonment on both convictions, to run

concurrently.

      2.     Morris

      The jury found defendant Morris guilty of Count 1, but only with respect to

cocaine and heroin, not as to cocaine base in particular. The jury also found

defendant Morris guilty of Count 7.

      The district court sentenced him to 180 months’ imprisonment on both

convictions, to run concurrently. He does not challenge his sentence on appeal.

      3.     Hood

      The jury found defendant Hood guilty of Counts 1, 5, 6, 8, and 9. The

district court sentenced defendant Hood to 235 months’ imprisonment on Counts 1,

5, 6, and 8, and to 120 months’ imprisonment on Count 9, all to run concurrently.

He does not challenge his sentence on appeal.

D.    Appeal

      On July 28, 2015, defendants Morris and Lesane timely filed their notices of

appeal. On October 5, 2015, defendant Hood filed a notice of appeal in a separate


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case. On October 20, 2015, the government filed an unopposed motion to

consolidate these appeals, which this Court granted. Below, we address the issues

on appeal as they relate to each defendant.

                                    II. LESANE

A.    Sufficiency of the Evidence to Support Heroin Conviction

      First, Lesane contends that the evidence was insufficient to support his

conspiracy conviction as it relates to heroin. We review de novo the sufficiency of

the evidence to support a guilty verdict. United States v. Isnadin, 742 F.3d 1278,

1303 (11th Cir. 2014). In doing so, we view the evidence in the light most

favorable to the government and resolve all reasonable inferences and credibility

choices in favor of the verdict. Id. If a reasonable trier of fact could find that the

evidence established guilt beyond a reasonable doubt, the evidence is sufficient to

support the conviction. Id.

      To convict a defendant for conspiracy, the government must establish that

(1) an illegal agreement existed, (2) the defendant knew about the agreement, and

(3) the defendant knowingly and voluntarily joined it. United States v. McDowell,

250 F.3d 1354, 1365 (11th Cir. 2001). The government need not prove the

defendant’s participation in the conspiracy by direct evidence. Id. A common

purpose or plan may be inferred based on “a development and collocation of

circumstances.” Id. (quoting United States v. Khoury, 901 F.2d 948, 962 (11th


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Cir. 1990)). Mere presence at the scene of a crime is insufficient to sustain a

conspiracy conviction. Id. Presence is probative, however, of the defendant’s

knowing and voluntary participation in the illicit endeavor. Id.

      Here, Lesane claims that his conviction cannot stand as it related to heroin

because the government did not show that he sold any of the heroin used as

evidence in the case. According to Lesane, the only evidence linking him to the

heroin conspiracy consisted of: (1) heroin transactions for which he was not the

direct seller; and (2) amounts of heroin recovered during a search of 6226 Demery.

Though Lesane acknowledges that the government’s evidence showed him making

drug transactions, he maintains that the government failed to prove that any of

these transactions involved heroin.

       We conclude that the evidence was sufficient to support Lesane’s

conspiracy conviction, including as it related to possession and distribution of

heroin. Lesane does not dispute on appeal his extensive participation in the

conspiracy with respect to cocaine. That participation necessarily placed him in

regular contact not only with the other defendants, but also the customers and

residences central to the conspiracy. In particular, though the evidence did not

include a specific instance in which Lesane sold heroin, there was ample evidence

showing that his associates sold heroin at 6226 Demery on a number of

occasions—and that Lesane was frequently present at the residence while this drug


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activity was ongoing. Nixon, for example, testified that Lesane was present during

controlled drug transactions at 6226 Demery and even delivered drugs to

customers. Likewise, footage of controlled transactions showed Lesane at the

house while the drug operation was ongoing.

      Under these circumstances, we find that a reasonable jury could have

concluded beyond a reasonable doubt that there was an agreement to possess and

sell cocaine and other drugs, including heroin, that Lesane knew of this agreement,

and that he voluntarily participated in it. Accordingly, we affirm Lesane’s

conspiracy conviction to the extent that he challenges his criminal liability for

possession with intent to sell heroin.

B.    Application of the Career Offender Sentencing Guideline

      Second, Lesane contends that the district court erred in classifying him as a

career offender, because his 2014 burglary conviction does not qualify as a

predicate offense under the sentencing guidelines. The district court’s decision to

classify a defendant as a career offender is a question of law that we ordinarily

review de novo. United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir. 2006).

Where the defendant did not raise his objection in the district court, however, we

review the issue only for plain error. United States v. Rodriguez, 751 F.3d 1244,

1257 (11th Cir. 2014). Where a defendant actually invites error, we are wholly




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precluded from reviewing the error on appeal. United States v. Harris, 443 F.3d

822, 823-34 (11th Cir. 2006).

      Before we address whether the district court incorrectly applied the career

offender enhancement, we must determine whether this issue is amenable to

review, and, if so, under what standard. While the government suggested in its

brief that, by acknowledging that the guideline calculations in the PSR were

appropriate, Lesane invited this error, the government retreated from that position

at oral argument and stated that they were not asking us to bar review of Lesane’s

sentencing appeal. We accept that concession.

      Indeed, we do not believe that Lesane conceded that the career offender

enhancement applied. Lesane’s counsel argued that the application of the career

offender enhancement was too harsh because the 2014 burglary conviction

occurred after Lesane was arrested for the drug conspiracy in 2013. Specifically,

Lesane urged the district court to depart from the enhanced guidelines range,

arguing that the application of the career offender enhancement would distort the

reality of Lesane’s criminal history at the time of the offense of conviction.

Although Lesane’s counsel phrased his position as one seeking a departure, the

point regarding the timing of the second conviction clearly was made. Though

inartfully, we believe Lesane’s counsel preserved his objection to application of

the career offender enhancement.


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      Under these circumstances, we may consider the merits of that objection.

Because Lesane did not actually object to the guideline calculations in the PSR,

however, we review this issue for plain error. See Rodriguez, 751 F.3d at 1257.

Under that standard of review, we may only reverse where there is plain error that

affects substantial rights. United States v. Williams, 469 F.3d 963, 966 (11th Cir.

2006).

      Under § 4B1.1 of the sentencing guidelines, a defendant qualifies as a career

offender only where he has “at least two prior felony convictions of either a crime

of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). The

sentencing guidelines further provide that “[t]he term ‘two prior felony

convictions’ means . . . the defendant committed the instant offense of conviction

subsequent to sustaining at least two felony convictions of either a crime of

violence or a controlled substance offense . . . .” Id. § 4B1.2(c) (emphasis added).

      Here, Lesane’s 2014 conviction for burglary of an unarmed dwelling could

not serve as a predicate crime of violence under the career offender provisions.

Federal authorities arrested Lesane in connection with the instant federal offense in

October 2013. Lesane pleaded nolo contendere to the burglary offense in October

2014. Though a plea of nolo contendere is sufficient to constitute a felony

“conviction” within the meaning of the sentencing guidelines, see United States v.

Elliot, 732 F.3d 1307, 1313 (11th Cir. 2013), a conviction only qualifies as a


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“prior” felony conviction where it occurs before the defendant commits the instant

offense of conviction. U.S.S.G. § 4B1.2(c). Under the language of the sentencing

guidelines, this 2014 burglary offense does not qualify as a prior felony conviction

vis-à-vis Lesane’s 2013 drug crime. See United States v. Williams, 29 F.3d 172,

174 (4th Cir. 1994) (“[C]onvictions sustained subsequent to the conduct forming

the basis for the offense at issue cannot be used to enhance a defendant’s status to

career offender.”). The government concedes this point.

      Given the effect this error had on Lesane’s guidelines range, we also

conclude that this error affects his substantial rights. The PSR reflects—and the

government concedes—that, without the career offender enhancement, Lesane’s

offense level only would have been twenty-four; combined with his criminal

history category of VI, that would have yielded a guidelines range of 100 to 125

months’ imprisonment as opposed to 210 to 262 months. See U.S.S.G. ch. 5, pt.

A. Where, as here, the district court sentenced the defendant under an incorrect

guidelines range, the defendant obviously can show a reasonable probability that

the district court would have imposed a different sentence under the correct

guidelines range. Molina-Martinez v. United States, 136 S. Ct. 1338, 1349 (2016).

And where that reasonable probability exists, the defendant succeeds in showing

that the error affected his substantial rights and, thus, was plain. Id.




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      We conclude that the district court plainly erred in sentencing Lesane as a

career offender based on his 2014 conviction for burglary of an unoccupied

dwelling. We accordingly vacate Lesane’s sentence and remand for resentencing.

C.    Substantive Reasonableness of Sentence

      Third, Lesane contends that his sentence is unreasonable under United States

v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Under Booker and its progeny,

when we review the reasonableness of a sentence, we review for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007). We must first ask

whether the district court committed a significant procedural error, such as

improperly calculating the guidelines range or failing to consider the factors set

forth in 18 U.S.C. § 3553(a). Id. If the sentence is procedurally sound, we then

must consider the substantive reasonableness of the sentence under the totality of

the circumstances. Id.

      Because we remand for resentencing in light of the erroneous application of

the career offender enhancement, we need not decide the reasonableness of

Lesane’s sentence under Booker. After recalculating Lesane’s guidelines range

under the appropriate principles, the district court should impose a sentence it

deems appropriate in light of the factors set forth in § 3553(a).




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                                   III. MORRIS

A.    Sufficiency of the Evidence to Support Conspiracy Conviction

      First, Morris argues that the evidence is insufficient to support his drug

conspiracy conviction under Count 1. Morris does not raise a sufficiency of the

evidence challenge to his conviction for possession with intent to distribute heroin

under Count 7.

      As noted above, we review de novo the sufficiency of the evidence to

support a guilty verdict, viewing the evidence in the light most favorable to the

government and resolving all reasonable inferences and credibility choices in favor

of the verdict. Isnadin, 742 F.3d at 1303 (11th Cir. 2014).

      Here, Morris contends, in cursory fashion, that “the government offered no

evidence directly showing . . . Morris’s participation in drug-related activities.”

According to Morris, his continued presence at 6226 Demery is explained by his

employment with a landscaping company that operated out of that residence. In

sum, Morris argues that the evidence is insufficient to establish that he was

actually involved in the conspiracy.

      We disagree. The evidence adduced at trial showed that Morris was present

at 6226 Demery on a regular basis while drug activity was ongoing. The evidence

indicated that Morris participated directly in the enterprise by selling drugs to

confidential informants. Herman testified, for example, that he bought drugs from


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Morris upwards of twenty times. And recordings of controlled purchases with

confidential informants showed Morris’s involvement in the sale of drugs at 6226

Demery in particular. Corroborating this evidence, Morris himself told a cellmate

in the Charlotte County jail that he was responsible for selling small amounts of

cocaine and heroin out of 6226 Demery.

      To the extent Morris argues that his conspiracy conviction cannot stand

because the evidence does not show that he was involved in the conspiracy for its

entire duration, we reject that contention as well. The government need not prove

that each conspirator participated in every aspect of the enterprise or for the

entirety of its operation. United States v. Vernon, 723 F.3d 1234, 1273 (11th Cir.

2013); United States v. Hansen, 262 F.3d 1217, 1247 (11th Cir. 2001). It is clear

that Morris participated in some affirmative conduct in furtherance of the drug

enterprise at 6226 Demery, and that is all the law requires.

      After a thorough review of the record, we conclude that the evidence is

sufficient to show that Morris knew of the overall drug conspiracy and voluntarily

participated in it. See McDowell, 250 F.3d at 1365. We therefore affirm Morris’s

drug conspiracy conviction.

B.    Prosecutorial Misconduct

      For the first time on appeal, Morris contends that the prosecutor engaged in

misconduct by making certain statements about the role that guns played in the


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drug conspiracy at 6226 Demery. Morris submits that, in light of this alleged

misconduct, he is entitled to a reversal of both his drug conspiracy conviction

(Count 1) and his substantive drug conviction (Count 7).

      Ordinarily, we review a defendant’s claim of prosecutorial misconduct de

novo. United States v. Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008). Where the

defendant fails to object to a prosecutor’s statements at trial, however, we review

only for plain error “that is so obvious that failure to correct it would jeopardize the

fairness and integrity of the trial.” Id. at 1306-07 (quoting United States v. Bailey,

123 F.3d 1381, 1400 (11th Cir. 1997)). Under plain error review, we reverse based

on alleged prosecutorial misconduct only where the alleged misconduct is “so

pronounced and persistent that it permeates the entire atmosphere of the trial.”

United States v. Crutchfield, 26 F.3d 1098, 1099 (11th Cir. 1994) (quoting United

States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987)).

      To establish prosecutorial misconduct, the defendant must show that (1) the

prosecutor made improper remarks and (2) the remarks prejudicially affected the

defendant’s substantial rights. United States v. Eckhardt, 466 F.3d 938, 947 (11th

Cir. 2006). The misconduct results in prejudice to the defendant’s substantial

rights where, if not for the allegedly improper remarks, the outcome of the trial

would have been different. Id. Hence, where there is sufficient independent




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evidence in the record to support the defendant’s guilt, the alleged error is

harmless. Id.

      Morris takes issue with several prosecutorial comments and with the way the

government presented its case at trial. From the outset, Morris argues that the

prosecutor acted improperly during his opening statement by telling the jury that

the case was about drugs and guns. According to Morris, this suggested to the jury

that Morris was involved in firearms offenses even though only defendant Hood

was charged with a gun-related crime. In addition, Morris asserts that the

government front-loaded its case-in-chief with evidence regarding guns, devoting

approximately the first five hours of testimony to the firearms found during the

search of 1606 Hibiscus. Morris also takes issue with the government’s closing

statement, arguing that the prosecutor engaged in misconduct by improperly

suggesting to the jury that a video of 6226 Demery showed Morris carrying a gun

in his hand. Ultimately, Morris contends that these improper statements had the

cumulative effect of linking guns and drugs with all the defendants, resulting in the

undue suggestion that Morris was involved in more illegal activity than the

evidence shows.

      Morris acknowledges that his counsel did not object to any of these matters

at trial. Accordingly, we review only for plain error. See Merrill, 513 F.3d at

1306. On the record before us, we cannot say that the prosecutor’s statements or


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overall presentation resulted in any prejudice to Morris, let alone prejudice so

obvious and injurious that failure to correct it would jeopardize the fairness or

integrity of the proceedings.

      Nothing about the prosecutor’s opening statement was improper or

prejudicial. It is true that the prosecutor framed the case from the outset as being

about guns and drugs, but this does not mean that the prosecutor improperly

suggested to the jury that Morris himself was responsible for the gun offense with

which defendant Hood was charged. The indictment and the verdict forms made it

clear that Morris was not charged with anything other than drug crimes. This was

reiterated in the jury instructions, where the district court stated that the firearms

charge only applied to “Defendant Lorenzo D. Hood.” Beyond the single opening

phrase, the prosecutor never linked Morris to any crime relating to firearms—on

the contrary, the government went on to explicitly state which defendants were on

trial for which specific charges.

      Nor was it improper or prejudicial for the government to begin its case-in-

chief with testimony regarding Hood’s firearms. There is nothing abnormal about

coconspirators being tried together, and Morris acknowledges that there was

nothing improper about his being tried alongside Hood. See United States v.

Astling, 733 F.2d 1446, 1454 (11th Cir. 1984) (“[C]oconspirators should be tried

jointly . . . and severance is not warranted despite the fact that a defendant may


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have participated in only a single aspect of the conspiracy.”). None of the

defendants in this case requested that they be tried separately. Thus, Morris should

have expected that the jury would hear evidence at some point supporting the gun

charges against Hood. The government’s first witnesses, who did focus primarily

on the guns found at 1606 Hibiscus, never suggested that anyone other than Hood

was in possession of them. Indeed, Morris was not even mentioned until the

government called Nixon to testify on the third day of trial.

      We additionally conclude that there was no prejudicial misconduct when the

prosecutor suggested, during closing argument, that Morris was carrying a gun in

video footage of him at 6226 Demery. This Court has long recognized the close

connection between guns and drugs. United States v. Lopez, 649 F.3d 1222, 1242

(11th Cir. 2011) (noting that guns go “hand-in-hand” with illegal drug operations

and that guns are the “tools of the [drug] trade”). In light of this close connection

between firearms and drug trafficking operations, we doubt that the suggestion that

Morris was carrying a gun would have shocked or swayed the jury with respect to

its finding that Morris was engaged in a conspiracy to traffic in cocaine and heroin.

That is, we do not believe that such a suggestion is unduly prejudicial.

      Either way, in light of the substantial evidence linking Morris to the drug

conspiracy at 6226 Demery, we cannot say that, but for the prosecutor’s comments

and presentation, the outcome of the trial likely would have been different.


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Eckhardt, 466 F.3d 947. This is especially true under the present circumstances,

where we review the prosecutor’s alleged misconduct for plain error; we cannot

conclude that even an assumed error associated with these comments would be “so

pronounced and persistent that it permeate[d] the entire atmosphere of the trial.”

Crutchfield, 26 F.3d at 1099; Merrill, 513 F.3d at 1306-07. The comments the

prosecutor made were isolated and minimal in comparison to the other evidence

adduced at trial regarding Morris’s illegal conduct. Morris’s counsel diffused the

effect of those remarks in his own closing. And the order of the evidence could not

have been so disruptive as to change the outcome of the proceedings. In short, we

reject Morris’s argument that the alleged prosecutorial misconduct had the

cumulative effect of prejudicing his substantial rights. Eckhardt, 466 F.3d at 947.

       Therefore, we affirm both his conspiracy conviction (Count 1) and his

substantive drug conviction (Count 7).

                                    IV. HOOD

A.    Motion to Suppress

      First, Hood submits that the district court erred in denying his motion to

suppress the evidence found during the search of 1606 Hibiscus. In particular, he

argues that the officers who swept the house lacked articulable facts suggesting

that there was an individual in the home who might pose a threat to officers

executing the arrest warrant.


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      On appeal of the denial of a motion to suppress, we review the district

court’s findings of fact for clear error and its application of the law de novo,

construing the facts in the light most favorable to the prevailing party below.

United States v. Lewis, 674 F.3d 1298, 1302-03 (11th Cir. 2012).

      Though the Fourth Amendment ordinarily requires law enforcement to

obtain a warrant before searching a home, our constitutional jurisprudence allows

officers to conduct a warrantless “protective sweep” of a house while arresting a

suspect inside the home. Maryland v. Buie, 494 U.S. 325, 331-35 (1990). A

“protective sweep” is defined as “a quick and limited search of premises, incident

to an arrest and conducted to protect the safety of police officers or others.” Id. at

327. These sweeps are confined to a “cursory visual inspection of those places in

which a person might be hiding.” Id. As a rule, officers may, “without probable

cause or reasonable suspicion, look in closets and other spaces immediately

adjoining the place of arrest from which an attack could be immediately launched.”

Id. at 334. But to search areas beyond the immediate vicinity of the place of arrest,

officers must have “articulable facts which, taken together with the rational

inferences from those facts, would warrant a reasonably prudent officer in

believing that the area to be swept harbors” an individual posing a threat. Id.;

United States v. Delancy, 502 F.3d 1297, 1307 (11th Cir. 2007). In the course of a

lawful protective sweep, officers are “free to seize any evidence they discovered in


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plain view within the proper scope of the protective sweep.” United States v.

Tobin, 923 F.2d 1506, 1513 (11th Cir. 1991) (en banc).

      Here, Hood contends that, when officers swept 1606 Hibiscus after taking

him into custody, they exceeded the scope of a permissible protective sweep.

Hood asserts that the officers moved him outside the home, at which point the need

to sweep for dangerous individuals was extinguished. In addition, Hood argues

that the officers who conducted the sweep had no basis for believing that there was

anyone else inside the home who presented a danger. We find these arguments

unpersuasive.

      Because they are crucial to our resolution of this issue on appeal, we briefly

revisit the facts on which the district court relied in denying the motion to suppress.

Officers sought to locate Hood because they were tasked with executing a warrant

for his arrest. These officers believed that Hood might be inside the residence at

1606 Hibiscus because his driver’s license listed that address and because officers

saw a motorcycle parked near the front of the house which matched the description

of one he was known to use. While conducting surveillance, officers noticed

someone peeking out of the blinds of a window with a black object on the north

side of the front room of the house.

      After officers entered the house, Hood emerged from an area to the rear on

the south side of the house, opposite the area in which officers saw someone


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peeking through the blinds. Officers arrested Hood while he was still inside the

house, and then took him outside. One officer noted that Hood’s attitude and

conduct appeared to be evasive. Several officers testified that they feared someone

else might be hiding in other areas of the house.

      When officers walked into the room from which they saw someone moving

the blinds, they saw, in plain view, a rifle and scope, which looked like the object

they had seen earlier peeking through the blinds. Officers looked into an open

closet door, where they believed someone might be hiding, and found several more

firearms. Other officers checked the kitchen and rooms on the south side of the

house to ensure that no one was inside. These officers found ammunition, drugs,

and drug paraphernalia. Hood does not argue that these factual findings were

erroneous.

      After careful consideration, we agree with the district court that the officers

did not exceed their authority in conducting the protective sweep. Accordingly, we

conclude that the district court did not err in denying Hood’s motion to suppress

the evidence found during the 1606 Hibiscus search.

      Contrary to Hood’s assertion, the officers had a sufficient factual basis to

justify their belief, after taking him into custody, that there may have been

someone else inside the home who still posed a danger to officers. The officers

saw someone manipulate the blinds in the front of the house from a room on the


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north side, whereas Hood emerged from an entirely different part of the house. In

addition, officers noted that Hood exhibited evasive behavior after being taken into

custody. These facts, which were specific and articulable, would lead a reasonable

officer to believe that someone else might be in the house and that a protective

sweep was necessary for safety reasons. See Buie, 494 U.S. at 334; see also

United States v. Carballo, 595 F.3d 1214, 1223 (11th Cir. 2010) (holding that a

protective sweep was justified based on the defendant’s conduct, which included

“nervous” behavior).

      We also reject Hood’s contention that the officers’ sweep was unjustified

because he was taken outside after being placed in custody. A protective sweep of

a home is authorized, even where a suspect is apprehended outside of a house, so

long as officers have reason to believe that there is someone inside the building

who would still pose a danger to officers. United States v. Burgos, 720 F.3d 1520,

1525 (11th Cir. 1983) (concluding that officers conducted a reasonable sweep

inside the home after taking a suspect into custody outside the home based on their

belief that someone was inside and potentially armed). Here, Hood was

apprehended inside the house under circumstances that led officers to believe that

someone else was inside who might pose a threat to their safety. This is

particularly true given the fact that the window—in which movement had been

observed—had line-of-sight to where the officers’ vehicle was located. A brief


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visual inspection of the front bedroom revealed that the occupants of the home had

access to weapons that could be used to harm the officers, given that line-of-sight.

On this record, there was nothing unreasonable about the officers’ decision to

conduct a protective sweep despite having taken Hood outside.

      In addition, we disagree with Hood’s assertion that the protective sweep

exceeded its permissible scope under Buie. The officers entered rooms throughout

the house to conduct a quick visual sweep of any areas that might harbor

dangerous individuals. There is nothing in the record indicating that officers either

searched an area that could not harbor an individual or needlessly extended the

search’s duration. In particular, one officer testified that the sweep took no longer

than three or four minutes, lending support to the conclusion that the sweep was

cursory in nature. Under such circumstances, the protective sweep was lawful.

Buie, 494 U.S. at 334.

      Based on the foregoing, we affirm the denial of Hood’s motion to suppress

evidence seized during the search of 1606 Hibiscus.

B.    Motion for Judgment of Acquittal as to Cocaine Charges

      Second, Hood asserts that the district court erred in denying his motion for

judgment of acquittal on his cocaine convictions in Counts 5, 6, and 8. Hood’s

argument on this issue is limited to a single sentence, in which he contends that

there was “no evidence to support” his substantive cocaine charges.


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      As an initial matter, it bears noting that an appellant is deemed to have

abandoned a claim where he raises it in a perfunctory manner without meaningful

argument or citation to authority. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d

678, 681 (11th Cir. 2014). Hood has abandoned this claim because of the way in

which he raised the issue. He cites no authority, articulates no specific issue, and

provides no examples from the record to support his position.

      Even so, were we to address his assertion on the merits, a thorough review

of the record leads us to conclude that the district court properly denied Hood’s

motion for judgment of acquittal. The evidence confirms that confidential

informant Nixon bought cocaine from Hood during a controlled purchase at 6226

Demery. In addition, during a search of 6226 Demery, officers found cocaine and

heroin inside the house, along with evidence indicating that Hood resided in that

house with his girlfriend. Another confidential informant testified that it appeared

that the people working inside 6226 Demery were working for Hood. The drug

paraphernalia discovered at this house also tended to show that Hood was

trafficking in cocaine. Finally, when officers arrested Hood at 1606 Hibiscus, they

found a substantial amount of cocaine inside the master bedroom, as well as more

drug paraphernalia.

      Under Rule 29 of the Federal Rules of Criminal Procedure, the district court

did not err in denying Hood’s motion for judgment of acquittal at the close of the


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government’s case. Because there was substantial evidence from which a

reasonable jury could conclude that Hood was guilty of the various individual

cocaine crimes with which he was charged, we affirm the denial of his Rule 29

motion. See United States v. Gonzalez, 834 F.3d 1206, 1214 (11th Cir. 2016).

                               V. CONCLUSION

      In accordance with the foregoing, as to the convictions of Lesane, Morris,

and Hood, we affirm. With respect to the district court’s finding that Lesane

qualified as a career offender under the sentencing guidelines, we vacate and

remand for resentencing.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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