            Case: 19-13136   Date Filed: 06/25/2020   Page: 1 of 7



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-13136
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:19-cr-20053-RKA-1



TAVARES MCCRAY,

                                                          Defendant-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee.

                       ________________________

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

                              (June 25, 2020)

Before JILL PRYOR, NEWSOM, and LAGOA, Circuit Judges.

PER CURIAM:
               Case: 19-13136     Date Filed: 06/25/2020   Page: 2 of 7



      Tavares McCray appeals his convictions for possession with intent to

distribute a controlled substance within 1000 feet of a school, in violation of 21

U.S.C. §§ 841(a)(1) and 860(a)(1), and maintaining a drug-involved premises

within 1000 feet of a school, in violation of 21 U.S.C. §§ 856(a)(1) and 860(a). On

appeal, McCray contends that the government failed to present sufficient evidence

to support his convictions.

      The facts of the case are known to the parties, and we will not repeat them

here except as necessary to resolve the case.

      The inquiry into the sufficiency of the government’s evidence produced at

trial is a question of law subject to de novo review. See United States v. LeCroy,

441 F.3d 914, 924 (11th Cir. 2006); see also United States v. Byrd, 403 F.3d 1278,

1288 (11th Cir. 2005). We view the evidence in the light most favorable to the

government, making all reasonable inferences and credibility choices in the

government’s favor. See LeCroy, 441 F.3d at 924; Byrd, 403 F.3d at 1288. “In

order to uphold the lower court’s denial of [a defendant’s motion for] judgment of

acquittal and the jury’s guilty verdict, [we] need only find that a reasonable fact

finder could conclude that the evidence establishe[d] the defendant’s guilt beyond

a reasonable doubt.” United States v. Keller, 916 F.2d 628, 632 (11th Cir. 1990).

The evidence need not “exclude every [possible] hypothesis of innocence or be

wholly inconsistent with [any] conclusion except that of guilt.” United States v.


                                          2
                Case: 19-13136      Date Filed: 06/25/2020      Page: 3 of 7



Tinoco, 304 F.3d 1088, 1122 (11th Cir. 2002) (quotation omitted). Instead, “[t]he

jury is free to choose among reasonable constructions of the evidence.” United

States v. Lyons, 53 F.3d 1198, 1202 (11th Cir. 1995); see also United States v.

Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997).

                                              I

       Section 841(a)(1) of Title 21 makes it unlawful to “knowingly or

intentionally . . . possess with intent to . . . distribute . . . a controlled substance.”

Id. To sustain a conviction under this statute, the government must prove

(1) knowledge, (2) possession, and (3) intent to distribute. See United States v.

Poole, 878 F.2d 1389, 1391 (11th Cir. 1989). “All three elements can be proven

by either direct or circumstantial evidence.” Id. at 1391–92. “Evidence of

surrounding circumstances can prove knowledge.” Id. at 1392 Likewise, “[i]ntent

to distribute can be proven circumstantially from, among other things, the quantity

of cocaine and the existence of implements such as scales commonly used in

connection with the distribution of cocaine.” Id. Section 860 enhances the penalty

for violations of § 841(a)(1) if the perpetrator committed such conduct within 1000

feet of a school.

       As an initial matter, McCray argues that the government’s proof was

insufficient because very little physical evidence was presented to the jury. We

disagree. The jury could convict McCray on the basis of the photographic and


                                              3
               Case: 19-13136     Date Filed: 06/25/2020   Page: 4 of 7



circumstantial evidence with which it was presented. See United States v. Flores,

572 F.3d 1254, 1262–63 (11th Cir. 2009). When viewing that evidence in the light

most favorable to the government, it is sufficient to support the jury’s finding that

McCray knowingly possessed an illegal substance. See Keller, 916 F.2d at 632;

Byrd, 403 F.3d at 1288.

      McCray separately contends that the evidence was insufficient to prove that

he knowingly possessed drugs. Again, we disagree. First, as to McCray’s

knowledge of the presence of drugs in his home, the evidence showed the

following: (1) officers found a drug scale with visible cocaine residue on it in plain

view on the kitchen countertop; (2) they found McCray’s prescription bottles near

the cocaine-covered drug scale; and (3) they found McCray’s personal mail, some

of which was opened, was found stored in the same kitchen drawer as plastic

baggies that were used to package the drugs found elsewhere in the home. The

jury could reasonably infer that McCray knew that drugs were present in his home

based on the paraphernalia that was present in the kitchen either because it was

found in plain view or because McCray clearly had access to the areas it was

discovered.

      Second, as to McCray’s possession of the drugs, the evidence demonstrated

that McCray admitted ownership of the house by referring to it as his “crib” and,

moreover, that McCray’s own witness identified him as his neighbor who lived in


                                          4
               Case: 19-13136     Date Filed: 06/25/2020     Page: 5 of 7



the house. Additionally, a search of McCray’s person revealed two bundles of

cash in his right pocket, totaling $2424. Viewing this evidence in the light most

favorable to the government, a reasonable juror could infer that McCray (1) owned

the home where the drugs were found, (2) knew the drugs were there based on the

presence of residue and paraphernalia in plain view and in spaces McCray clearly

used, and (3) was a participant in the illegal enterprise based on his control over

the home, his knowledge of the drugs, and the large amount of cash found on his

person.

      For all these reasons, we hold that sufficient evidence supports McCray’s

conviction on Count 1.

                                           II

      Section 856(a)(1) of Title 21 provides that it is unlawful to “knowingly open

. . . or maintain any place . . . for the purpose of manufacturing, distributing, or

using any controlled substance.” Id. To sustain a conviction under this statute, the

government must prove “that the defendant (1) knowingly, (2) operated or

maintained a place, (3) for the purpose of manufacturing, distributing, or using any

controlled substance.” United States v. Clavis, 956 F.2d 1079, 1090 (11th Cir.

1992). The offense requires two mental elements—knowledge and purpose. See

id. Section 860 enhances the penalty for violations of §§ 841(a)(1) and 856 if the

perpetrator committed such conduct within 1000 feet of a school.


                                           5
               Case: 19-13136      Date Filed: 06/25/2020    Page: 6 of 7



      When considering whether there is sufficient evidence of knowingly

maintaining a drug-involved premises, the court can consider acts evidencing such

matters as control, duration, acquisition of the site, renting or furnishing the site,

repairing the site, supervising, protecting, supplying food to those at the site, and

continuity. See Clavis, 956 F.2d at 1090–91.

      McCray first argues that the government failed to prove his knowledge of

the criminal enterprise taking place in his home. We disagree. As already

explained, the evidence presented at trial supports a reasonable inference that

McCray was aware of the drugs in his home.

      McCray next argues that the government failed to show that he maintained

the home for the purpose of drug distribution. Again, we disagree. The evidence

showed both (1) that numerous items relating to distribution, including the drug

scale and a variety of plastic baggies, were discovered in the home; and (2) that the

plastic baggies, which are commonly used to distribute drugs, were the same

baggies used to package the powder cocaine and crack cocaine found in the other

areas of the house. Accordingly, the jury could reasonably infer that McCray used

the baggies to package the controlled substances found at his home. The jury

could also have reasonably inferred that McCray maintained the house for a drug-

involved purpose based on the fact that he owned the home, which contained tools

and supplies connected to distributing powder cocaine and crack cocaine. These


                                            6
              Case: 19-13136     Date Filed: 06/25/2020   Page: 7 of 7



tools, supplies, and furnishings, combined with the large quantity of cash found on

McCray’s person and his long-term ownership of the home, indicates a business-

like and continuing enterprise, as opposed to a one-off incident. See Clavis, 956

F.2d at 1090–91.

      For all these reasons, we hold that sufficient evidence supports McCray’s

conviction on Count 2.

                                      * * *

      Because the evidence was sufficient for a reasonable juror to find that

McCray both (1) knowingly possessed the drugs in his home and (2) maintained

his home for the purpose of distributing those drugs, we affirm.

      AFFIRMED.




                                         7
