                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-12034                ELEVENTH CIRCUIT
                                                            APRIL 14, 2010
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

                  D. C. Docket No. 08-21082-CR-PCH

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

COLLIE LEE WILLIAMS,

                                                        Defendant-Appellant.


                      ________________________

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

                             (April 14, 2010)



Before EDMONDSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
      Collie Lee Williams was convicted of possessing with intent to distribute

crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C)(ii) (Count 1),

using and carrying a firearm during and in relation to a drug trafficking offense, in

violation of 18 U.S.C. § 924(c)(1)(A) (Count 2), and being a felon in possession of

a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count 3).

Williams received concurrent sentences of 204 months’ imprisonment on Counts 1

and 3, and a consecutive sentence of 60 months’ imprisonment on Count 2.

Williams asserts two issues on appeal, which we address in turn.

                                          I.

      Williams first challenges the sufficiency of the evidence, contending the

evidence adduced at trial merely established he purchased drugs for personal use

and, thus, was insufficient to prove he intended to distribute drugs or carried a

firearm in relation to a drug trafficking crime, as charged in Counts 1 and 3.

      “To support a conviction for possession of a controlled substance with intent

to distribute, the evidence must show that the defendant knowingly possessed the

controlled substance with the intent to distribute it.” United States v. Leonard, 138

F.3d 906, 908 (11th Cir. 1998). To support a conviction under 18 U.S.C.

§ 924(c)(1)(A), the government must prove the defendant (1) committed a federal




                                           2
drug trafficking crime and (2) used, carried, or possessed a firearm in relation to or

in furtherance of that crime. 18 U.S.C. § 924(c)(1)(A).

      Viewed in the light most favorable to the verdict, a reasonable jury could

have found beyond a reasonable doubt Williams possessed crack cocaine with

intent to distribute and carried a firearm in relation to the drug trafficking offense.

See United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007) (stating the

evidence is sufficient to support a conviction if a reasonable jury could conclude it

established guilt beyond a reasonable doubt). Detective Hugh Oliphant testified he

observed Williams hand Jones a clear plastic bag with a red dot on it and a yellow

tint within. Oliphant then observed Jones place the bag inside a purse that, in turn,

was placed into a white Styrofoam container within a cardboard box located in front

of the convenience store. Although Williams suggests the jury was not entitled to

credit Oliphant’s testimony, the testimony was not incredible as a matter of law.

See United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (stating we

must accept a jury’s credibility determinations unless the testimony is incredible as

a matter of law). First, despite being located approximately 20 to 25 yards away

from the transaction, Oliphant maintained he had an unobstructed view of the

transaction and the magnification of his binoculars effectively placed him 2 to 3

yards from the transaction. See id. (“For testimony of a government witness to be



                                            3
incredible as a matter of law, it must be unbelievable on its face.” That is, the

testimony must concern facts the witness “physically could not have possibly

observed or events that could not have occurred under the laws of nature.”)

(quotations omitted). Moreover, Oliphant’s testimony was consistent with other

evidence adduced at trial, including the video recording played for the jury; the

location and appearance of the recovered bag of crack cocaine, which notably bore

the insignia of a red apple; the absence of drugs found on Williams’ person or in his

vehicle; and the fact no one saw Williams throw anything away other than the

handgun later recovered by police. The lack of drugs found in Williams’

possession also undermines his theory he simply purchased drugs from Jones for his

own personal use.

      The evidence was also sufficient to support Williams’ conviction for carrying

a firearm during and in relation to a drug trafficking offense. Not only did Williams

admit to possessing a firearm, the uncontradicted evidence also showed he

possessed and disposed of the firearm during and shortly after his transaction with

Jones. In light of the evidence, a reasonable jury could conclude Williams’

possession of the gun was not merely coincidental, but rather, that it at least had the

potential to facilitate the drug trafficking offense by protecting the drugs or the

proceeds derived from their sale. See United States v. Timmons, 283 F.3d 1246,



                                            4
1251 (11th Cir. 2002) (explaining the “in relation to” requirement is met where a

firearm facilitates or has the potential to facilitate a drug trafficking offense).

                                               II.

       Second, Williams challenges his sentence on Count 2, arguing the district

court erred in its construction of 18 U.S.C. § 924(c)(1)(A) to mandate a 5-year

consecutive term on Count 2, even though he was otherwise subject to a 15-year

mandatory minimum sentence on Count 3. Williams’ argument is belied by the

record. The district court stated it was not obligated to impose a mandatory

consecutive 5-year sentence on Count 2. Although the district court ultimately

imposed a consecutive sentence of five years, it did not do so because it believed it

was mandatory.1

       AFFIRMED.




       1
           Williams does not challenge the reasonableness of his below-Guidelines sentence.

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