                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                 FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-10836                ELEVENTH CIRCUIT
                                                        NOVEMBER 10, 2009
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

                D. C. Docket No. 08-00284-CR-T-17-TBM

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

FASAHA ANGAZA GREY,

                                                        Defendant-Appellant.


                      ________________________

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

                          (November 10, 2009)

Before BIRCH, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
      Defendant-appellant, Fasaha Angaza Grey, appeals his conviction for

carrying and possessing a firearm in furtherance of a drug trafficking crime

pursuant to 18 U.S.C. §924(c)(1)(A). Grey argues that the evidence was

insufficient to convict him and that the prosecutor’s comments during the

government’s summation amount to misconduct and warrant a new trial. We

AFFIRM.

                                I. BACKGROUND

      A federal grand jury indicted Grey for (1) one count of conspiracy to possess

with the intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.

§§846 and 841(b)(1)(B) (Count One), and (2) one count of carrying a firearm

during and in relation to, and possessing a firearm in furtherance of, a drug

trafficking crime in violation of 18 U.S.C. §924(c)(1)(A) (Count Two). R1-24.

      Edward Quinones, a narcotics detective for the City of Tampa, testified that

he helped to arrest Grey and Grey’s co-defendants by posing undercover as a

cocaine dealer. R3 at 31. Quinones stated that, during the transaction, he did not

notice any bulges in Grey’s clothing, that no one discussed whether Grey was

carrying a gun, and that he did not observe Grey with a gun at any point. R4 at 18-

20, 23-24, 33. Quinones said, though, that it would be unusual for someone in a

drug transaction to announce that he was carrying a weapon. Id. at 38-39.



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      Anthony Tyson, a narcotics detective for the city of Tampa, also participated

in Grey’s arrest. R4 at 49. He saw another detective remove a holstered nine

millimeter pistol from the right side of Grey’s waistband immediately after the

arrest. Id. at 51. The detective then handed Tyson the weapon; Tyson removed the

15-round magazine and a live bullet from the chamber, identified the gun, holster,

magazine and ammunition; the government entered the gun into evidence. Id. at

52-56. Detectives found 39 additional rounds of nine millimeter ammunition

inside the car in which Grey drove to the warehouse and, in a post-Miranda

interview, Grey confirmed that he bought the gun three months earlier “for

protection.” Id. at 65-66.

      At the close of the government’s case, Grey moved for acquittal pursuant to

Federal Rule of Criminal Procedure 29. R5 at 7-9. He argued that the government

had failed to produce evidence that the firearm he carried at the time of his arrest

was used “in furtherance of” the underlying drug trafficking offense, as required by

statute. Id. at 8-9; see 18 U.S.C. §924(c). Grey argued that “[t]here was no

evidence that he brought the firearm to the drug transaction for protection of the

drugs and in furtherance of the drug offense.” R5 at 8. This was demonstrated,

Grey argued, by Detective Quinones’s testimony that he was unaware Grey was

carrying a firearm. Id. The government responded that the statute does not require



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a defendant to use or brandish the weapon. Id. at 9. The court denied the motion

and another for acquittal on the underlying conspiracy charge. Id. at 10.

      Grey rested and renewed his previous motions for acquittal but the court

renewed its denial. R5 at 11. After the government and Grey presented their

initial closing arguments, the government presented its rebuttal summation, during

which counsel for Grey objected:

      [PROSECUTOR]: [Grey] didn’t have to brandish [the gun], he’s not
      charged with brandishing it or actually using it. It gave him the
      confidence to be calm no matter what happened in this drug
      trafficking offense when he met these people that he didn’t know
      anything about. That’s why it’s illegal.

      And it’s not – it’s irrelevant that he was a prohibitive person or not.
      And it’s irrelevant that – whether the gun was stolen or not. It doesn’t
      matter. It could have been, you know, his own personal gun, he could
      have had a license to carry anything. What made it illegal was for him
      to walk into that drug trafficking offense with that firearm[.] That is
      what made it illegal, that’s what makes it a [f]ederal offense. You
      can’t bring a gun to a drug trafficking crime. And that’s the crime that
      is charged in this case.

      [DEFENSE COUNSEL]: May I object, Judge, there’s no need to approach,
      if you could just note my objection.

      [THE COURT]: All right, noted for the record, I’ll deal with it subsequently.

      [PROSECUTOR]: And for that reason, ladies and gentlemen, we
      believe that the evidence supports beyond a reasonable doubt, any
      reasonable doubt, if you use your common sense in real life
      experiences, that Mr. Grey brought that firearm in there to give him
      the confidence to commit that crime that he committed and that was
      the conspiracy to possess that cocaine with the intent to distribute it.

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(Id. at 35-36). After the jury rendered its verdict of guilty on both counts, Grey

renewed the objection made during the government’s summation. Grey’s motion

for a mistrial was denied. Id. at 85. After a sentencing hearing, the district court

sentenced Grey to a total of 123 months in prison. R6 at 10-11. Grey appealed.

                                  II. DISCUSSION

A. Sufficiency of the Evidence

      We review challenges to the sufficiency of evidence de novo, viewing

evidence in the light most favorable to the government and upholding a conviction

unless a jury could not reasonably have found the defendant guilty. United States

v. Emmanuel, 565 F.3d 1324, 1333 (11th Cir. 2009) (quotation omitted).

      Section 924(c) provides enhanced penalties for carrying a firearm “during

and in relation to” a federal drug trafficking crime or for “possessing” a firearm “in

furtherance of” a drug trafficking crime. 18 U.S.C. §924(c)(1)(A). To prove that a

gun was possessed in furtherance of a drug trafficking crime, the government must

establish a nexus between the gun and the drug operation. United States v.

Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002). We consider several factors

when determining whether a defendant possessed a firearm in furtherance of a drug

trafficking crime, including: the type of drug activity, accessibility of the firearm,

the type of weapon, whether the weapon was stolen, the legality of firearm



                                            5
possession, whether the gun is loaded, proximity to the drugs, and the time and

circumstances under which the gun is found. United States v. Woodard, 531 F.3d

1352, 1362 (11th Cir. 2008) (citation omitted).

      Some of the Woodard factors are in Grey’s favor – the gun was not stolen

and Grey appears to have been its legal owner. The remainder, however, weigh

against him. The drug activity was a major transaction involving $18,000 and a

kilogram of cocaine. The weapon was fully loaded. It was on his person, attached

to his waistband, easy for him to reach and close to the drugs and the money that

were involved in the transaction. Viewing the evidence in the light most favorable

to the government, a reasonable factfinder could find that the gun facilitated the

offense by giving Grey confidence and security and that he therefore possessed it

in furtherance of the drug trafficking crime. Thus, there is sufficient evidence to

support Grey’s conviction under the statute.

B. Prosecutorial Misconduct

      Ordinarily, we review allegations of prosecutorial misconduct de novo.

United States v. Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008) (citation omitted).

To constitute prosecutorial misconduct, a prosecutor’s remarks must be improper

and must prejudicially affect the substantial rights of the defendant. United States

v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006) (citation omitted).



                                          6
      Considered in context, the prosecutor’s remarks were not improper. Grey

correctly argues that the mere possession of a firearm during a drug trafficking

offense is, without more, insufficient for a conviction under §924(c). Before the

objected-to statement, though, the prosecutor had said that the gun “gave [Grey]

the confidence to be calm” in a drug deal with persons unfamiliar to him. R5 at

35-36. After the objection, the prosecutor reiterated that point. In context, the

objected-to remarks cannot be considered part of an improper effort to mislead the

jury about what the offense required. The government made clear how its

argument fit within the requirements of the statute and hinged upon the promotion

of a feeling of confidence and security that furthered the offense.

      Moreover, even if the government’s remarks were improper, Grey cannot

satisfy the second prong of prosecutorial misconduct. The record contains

sufficient evidence that Grey violated §924(c)(1) when he carried a loaded firearm

to a drug transaction. In the face of such independent evidence of guilt, “any error

is harmless.” Eckhardt, 466 F.3d at 947. The appellee’s prosecutorial misconduct

argument fails both prongs of the de novo standard.

                                III. CONCLUSION

      Grey appeals on the twin bases that there was insufficient evidence to

convict him under §924(c)(1) and that the prosecution committed misconduct



                                           7
requiring a new trial. As we have explained, the conviction was proper and the

prosecution’s remarks did not amount to misconduct. Accordingly, judgment of

the district court is AFFIRMED.




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