                                                                   [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                           JUNE 27, 2006
                                     No. 05-11317                        THOMAS K. KAHN
                               ________________________                      CLERK


                           D. C. Docket No. 04-00165-CR-CB

UNITED STATES OF AMERICA,


                                                                           Plaintiff-Appellee,

                                            versus

JAMES CURTIS TOLBERT, JR.,

                                                                       Defendant-Appellant.


                               ________________________

                      Appeal from the United States District Court
                         for the Southern District of Alabama
                            _________________________

                                       (June 27, 2006)

Before BIRCH, CARNES and BRUNETTI *, Circuit Judges.

BIRCH, Circuit Judge:


       *
         Honorable Melvin Brunetti, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
      This case presents the inverse of the usual guns-and-drugs scenario—a drug

conviction enhanced by firearm possession. Here, the defendant was convicted for

a firearms crime and the weapons possession enhancement was employed because

of an uncharged drug offense. James Curtis Tolbert, Jr., appeals his 120-month

sentence imposed after he was convicted of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). He argued that the district court

erred by enhancing his offense level pursuant to U.S.S.G. § 2K2.1(b)(5) (2004), a

weapons possession Guidelines enhancement, when the government failed to prove

by a preponderance of the evidence that he possessed the cocaine found on the

ground in front of where the three codefendants were being held. Because we

agree that the evidence is insufficient to personally tie Tolbert to the cocaine, we

VACATE and REMAND for resentencing.



                                I. BACKGROUND

      Given the fact-intensive nature of this case, we first review the factual

predicates to the district court’s sentencing decision. Tolbert was a convicted felon

who had not had his right to possess a firearm restored. He was indicted by a

grand jury on one count of being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1). Tolbert was tried by a jury and found guilty of the crime



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charged.

      During trial, Agent Byron Russell testified that on 1 October 2003, he and

Agent Alfred Carter pulled over a blue car containing three men. He stated that

after the blue car stopped, Tolbert got out of the rear, right seat with a rifle in his

hand, tossed it down, and then he and another passenger, Christopher Crook, ran to

the front of the vehicle and then down the alley. The agents pursued the two men

and caught Tolbert in the alley and Crook in front of a nearby store. The agents

brought Tolbert and Crook back to the car. Agent Carter testified that after the two

men were arrested, Agent Russell had them lie face down in front of the blue car

with the driver, Tim Cunningham.

      According to the undisputed portions of the presentence investigation report,

in front of where Tolbert and Cunningham were lying on the ground, agents found

two bags of cocaine. The agents do not, however, know which suspect, if any,

discarded the bags. Subsequent testing determined that one of the bags contained

.61 grams of crack cocaine. The government presented no lab-based forensic

evidence regarding the composition or weight of the drugs contained in the other

bag, although the substance field-tested as cocaine powder.

      Prior to sentencing, Tolbert objected to the finding that he possessed the

cocaine that was found on the ground near him at the time of his arrest and the



                                            3
corresponding four-point increase in his offense level pursuant to U.S.S.G.

§ 2K2.1(b)(5), based upon his possession of a firearm in connection with another

felony. The district court concluded that all three men had “common knowledge”

of the drugs, relying on our precedent that the enhancement “reflects an increased

danger of violence, unless it’s clearly improbable that the weapon was connected

with the offense.” R6-45 at 18–20. The court continued, “finding . . . those drugs

on the ground[,] I can definitely . . . attribute to the three defendants in the

vehicle. . . . And it is not clearly improbable that the weapon was there . . . for

some other purpose.” Id. at 19.

      On appeal, Tolbert argues that there was no evidence of where the cocaine

was inside the car in which he was riding before he and his two codefendants

exited, and the evidence showed that he exited from the right side of the car and

that the gun was found on the right side of the car but that the drugs were not.

Tolbert concludes that the government failed its burden of proving that he

possessed the cocaine.



                                  II. DISCUSSION

      “A challenge to the application of the [Sentencing Guidelines] is a mixed

question of law and fact.” United States v. Anderson, 326 F.3d 1319, 1326 (11th



                                            4
Cir. 2003). We review “the district court’s findings of fact for clear error and its

application of the sentencing guidelines to those facts de novo.” Id. “The

government bears the burden of establishing by a preponderance of the evidence

the facts necessary to support a sentencing enhancement.” United States v. Askew,

193 F.3d 1181, 1183 (11th Cir. 1999). “Preponderance of the evidence is not a

high standard of proof. It is not, however, a toothless standard either, and a district

court may not abdicate its responsibility to ensure that the prosecution meets this

standard before adding months or years onto a defendant’s prison sentence.” Id.

       [I]f the probation officer and the prosecutor believe that the
       circumstances of the offense, the defendant’s role in the offense,
       or other pertinent aggravating circumstances, merit a lengthier
       sentence, they must be prepared to establish that pertinent
       information by evidence adequate to satisfy the judicial
       skepticism aroused by the lengthier sentence that the proffered
       information would require the district court to impose.

United States v. Lawrence, 47 F.3d 1559, 1567 (11th Cir. 1995) (quotations

omitted).

      The Sentencing Guidelines provide for a four-level increase “[i]f the

defendant used or possessed any firearm or ammunition in connection with another

felony offense.” U.S.S.G. § 2K2.1(b)(5). This enhancement can be applied

regardless of whether a charge was brought or a conviction obtained. Id. cmt. n.4.

In United States v. Rhind, we discussed the enhancement, noting that “[w]hile §



                                           5
2K2.1(b)(5) does not define the phrase ‘in connection with,’ we have held that

courts should give such phrases their ordinary meaning.” 289 F.3d 690, 695 (11th

Cir. 2002) (citation omitted). We analogized the “in connection with” language to

the language contained in U.S.S.G. § 2B5.1(b)(3), noting that the ordinary and

natural meaning of “in connection with the offense” does not require that the

firearm facilitate the underlying offense. Id. Thus, for purposes of our present

inquiry—that is, whether there is sufficient evidence to support the uncharged drug

felony—Tolbert’s possession of the firearm, when he exited the car, is sufficient to

demonstrate connection with a drug offense for purposes of the enhancement.1

       The issue in this case, however, relates to whether the government

sufficiently proved Tolbert’s role in the drug offense; that is, whether he possessed

the uncharged drugs. Although a criminal conviction must be supported by

evidence showing a defendant is guilty beyond a reasonable doubt, the lesser

       1
           Although we resolve this case based on the arguments presented to us by counsel, it
may be that our prior cases on § 2K2.1(b)(5) determine the outcome, regardless of whether the
uncharged drug crime is shown by a preponderance of the evidence. See United States v.
Brown, 332 F.3d 1341 (11th Cir. 2003). In Brown, we considered whether § 2K2.1(b)(5) could
be used to enhance a drug crime when the defendant was also convicted of felony possession
under 18 U.S.C. § 922(g). We held that “[t]he weapons possessed . . . in the course of the
underlying drug trafficking offense resulted in [a] conviction under § 922(g), therefore, the
§ 2K2.1(b)(5) enhancement cannot be applied.” Id. at 1346. Thus, in this case, it might be
argued that even if there were evidentiary support for the drug crime, § 2K2.1(b)(5) could not be
applied because Tolbert was already being sentenced for his conviction under 18 U.S.C. § 922(g)
for felony possession. Although we dispose of this case on other grounds, we do not intend to
disturb the line of cases involving the circumstances in Brown, which determine whether the
Guidelines enhancement for weapons possession may be employed when the defendant in the
case is also convicted of a statutory weapons possession crime.

                                                6
preponderance of the evidence standard is applied to factual findings necessary to

support sentencing enhancements. See United States v. Duncan, 400 F.3d 1297,

1304 (11th Cir. 2005). Thus, our task is to decide whether the government

presented sufficient evidence to demonstrate that Tolbert possessed the drugs by a

preponderance of the evidence.

      “Possession may be actual or constructive, joint or sole.” United States v.

Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004) (per curiam). The possession must

also be knowing. United States v. Farris, 77 F.3d 391, 395 (11th Cir. 1996). “A

defendant has actual possession of a substance when he has direct physical control

over the contraband.” United States v. Edwards, 166 F.3d 1362, 1363 (11th Cir.

1999). “A defendant has constructive possession of a substance when he has some

form of control other than direct physical control.” Id. at 1364. However, we have

often held that mere presence at the scene where drugs are found is not enough to

support a criminal conviction for possession. See Holmes v. Kucynda, 321 F.3d

1069, 1081 (11th Cir. 2003).

      In this case, however, there is no evidence that Tolbert possessed or had

knowledge of the drugs in question. The question is whether Tolbert could jointly

possess drugs when there is no evidence that he had prior knowledge of them. This

case is distinguishable from those cases where the amount of drugs is so large that



                                          7
it warrants an inference tying defendants to drugs that were not found on their

person. See United States v. Molina, 443 F.3d 824, 829 (11th Cir. 2006); United

States v. Vera, 701 F.2d 1349, 1358 (11th Cir. 1983).

      Here, a very small quantity of drugs, amounting to a single use, was found in

front of three people, but there was no evidence tying the drugs to any of the

individuals. The application of a doctrine that would imply joint possession is

inappropriate absent other facts that would make the inference reasonable. See

United States v. Pedro, 999 F.2d 497, 502 (11th Cir. 1993) (holding that the

absence of evidence of awareness of a firearm defeats a claim for constructive

possession). The small amount of drugs at issue in this appeal makes plausible

Tolbert’s argument that one of the other people in Tolbert’s car had the drugs when

the stop was made and that Tolbert could have not known about the drugs.

      Without evidence that Tolbert knew about the drugs, the government fails its

burden of showing that Tolbert jointly possessed the drugs with his codefendants.

Because there was no proof that Tolbert was guilty of a felony offense, the district

court erred by enhancing his sentence pursuant to U.S.S.G. § 2K2.1(b)(5).



                               III. CONCLUSION

      Tolbert has appealed his 120-month sentence imposed after he was



                                          8
convicted of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). He argued that the district court erred by enhancing his offense level

pursuant to U.S.S.G. § 2K2.1(b)(5) when the government failed to prove by a

preponderance of the evidence that he possessed the cocaine found on the ground

in front of where the three codefendants were being held. Because we agree that

the evidence is insufficient to personally tie Tolbert to the cocaine, we VACATE

and REMAND for resentencing.




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