                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                December 27, 2006
                                No. 06-12263                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                     D. C. Docket No. 03-00068-CR-CG-001

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

MARLO DEVAN FERGUSON,

                                                             Defendant-Appellant.
                          ________________________

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

                              (December 27, 2006)

Before ANDERSON, BARKETT and HULL, Circuit Judges.

PER CURIAM:

      After a jury trial, Marlo Devan Ferguson appeals his conviction and 120-

month sentence for being a felon in possession of a firearm. After review, we
affirm.

I. BACKGROUND

       Ferguson, a convicted felon, was charged in a single-count indictment with

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Ferguson pled not guilty, and proceeded to trial.1 We first recount the trial

evidence.

       On October 26, 2001, at approximately 2:00 a.m., Officer Melvin Jones was

on routine patrol in his car when he observed a silver sport utility vehicle (“SUV”)

parked on a service road. Officer Jones saw Ferguson standing in front of the

SUV. Ferguson attempted to conceal himself by moving around to the other side

of the SUV. Finding Ferguson’s behavior suspicious, Officer Jones turned his car

around to investigate.

       Officer Jones met Ferguson’s SUV as it was leaving the area. The two

vehicles stopped side-by-side, so that the driver’s side doors were next to each

other. Ferguson immediately opened his car door and said, “What’s up? What’s

up, Officer?” in a manner that alarmed Jones. Officer Jones exited his patrol car,

focusing on Ferguson’s hands. Ferguson’s left hand was on the steering wheel, but

his right hand was down on his right side, between the center console and the


       1
        There were two mistrials. The trial discussed in this opinion was Ferguson’s third trial,
at which he was convicted and from which he appeals.

                                                2
driver’s seat. Officer Jones told Ferguson to place both hands on the steering

wheel. Ferguson did not comply until Jones instructed him three times.

      As Officer Jones drew closer, he noticed on the floorboard of the SUV, near

the brake pedal, “a small baggy” of what appeared to be cocaine. Jones radioed for

backup. In the meantime, Ferguson’s right hand again dropped back between the

driver’s seat and the center console. Jones twice ordered Ferguson to exit the

SUV, which he finally did. Jones patted Ferguson down and placed him in the

back of his patrol car. Jones’s backup, Officer Jason Naylor, arrived and the two

officers retrieved the baggy from the SUV floorboard.

      Officer Jones returned to his patrol car to place Ferguson under arrest, while

Officer Naylor inventoried the SUV. Naylor called Jones back to the SUV because

he “found something.” Jones returned, sat in the SUV driver’s seat, and saw “what

appeared to be the butt of a pistol in between the driver’s seat and the center

console.” Jones pulled the gun out and verified that it was a pistol. The gun was

not loaded, and electrical tape was wrapped around its handle. Jones and Naylor

also located a marijuana cigarette in the SUV.

      At trial and over defense objection, the district court permitted the

government to use two photographs as demonstrative aids, but did not permit the

photographs to be sent out with the jury as evidence. The photographs depicted the



                                           3
pistol jammed down between the driver’s seat and the center console.2 The SUV in

the photographs had a different color interior than Ferguson’s. The photographs

were taken in daylight, rather than at night (when Ferguson was arrested). The

district court expressly clarified to the jury that the photographs were “not of the

actual vehicle or what was happening that night.”

       According to Officer Naylor, the firearm in the photographs was in

“approximately the same location” as Ferguson’s. Naylor acknowledged, however,

that Ferguson’s firearm had been “back maybe just a touch, maybe just a hair back

. . . . an inch or two, you know” to the right of where it was depicted in the

photographs.

       Ferguson’s sister, Jamika Ferguson, and his girlfriend, Paula Massey, also

testified. The SUV belonged to Jamika, but her children’s father (Robert Bradley),

Massey, and the defendant Ferguson all frequently drove the SUV. Jamika had

seen Bradley with a gun, and Bradley usually carried a firearm. In fact, Bradley

shot Ferguson a few months after Ferguson’s arrest in this case. Jamika had never

seen Ferguson with a gun. Jamika could not explain, however, why she initially

told investigators that no one besides herself and Ferguson drove the SUV.

       Massey likewise testified that she, Ferguson, Jamika, and Bradley all drove


       2
       Neither Officer Jones nor Officer Naylor took or assisted with preparation of the
photographs.

                                               4
the SUV. On the day of his arrest, Ferguson picked up the SUV from Jamika at

around noon, and Massey and Ferguson went out that night in the SUV. Ferguson

brought Massey home between 11:00 p.m. and 12:00 a.m., and Ferguson went out

again. Massey did not remember seeing a gun or cocaine in the SUV.

       The jury convicted Ferguson. At sentencing, Ferguson’s base offense level

was 24, pursuant to U.S.S.G. § 2K2.1(a)(2). The district court applied a 4-level

enhancement, pursuant to U.S.S.G. § 2K2.1(b)(5), finding that Ferguson possessed

the firearm “in connection with” another felony (possession of cocaine and

marijuana).3 With an adjusted offense level of 28 and a criminal history category

of IV, Ferguson’s advisory guidelines range was 110 to 137 months’

imprisonment. The statutory maximum sentence for Ferguson’s § 922(g)

conviction was 120 months’ imprisonment. The district court sentenced Ferguson

to 120 months’ imprisonment.

                                    II. DISCUSSION

A.     The photographs

       Ferguson argues that the district court abused its discretion by allowing the

government to show the photographs to the jury, because the photographs did not

accurately depict the SUV on the night of his arrest and were more prejudicial than


       3
        Drug possession charges were filed against Ferguson in state court. Unlawful
possession of a controlled substance is a felony in Alabama. Ala. Code § 13A-12-212.

                                              5
probative.4 This situation is different from most we have addressed because the

photographs were used only as demonstrative aids and were not admitted into

evidence or allowed into jury deliberations. Cf. United States v. Brown, 441 F.3d

1330, 1362 (11th Cir. 2006) (considering the admissibility of color photographs

from a homicide scene).

       More importantly, the officers identified the photographs as similar to the

actual crime scene. See United States v. Myers, 972 F.2d 1566, 1579 (11th Cir.

1992).5 Any inconsistencies between the photographs and the actual crime scene

were addressed by the officers’ testimony concerning the differences between the

interior color of the SUV and the lighting conditions at the time of the arrest.

Although Jones testified that the photographs accurately represented the location of

the firearm as it appeared that evening, Naylor’s testimony that the firearm in the

photographs was in a slightly different position put the jury on notice that the

photographs may not have precisely captured the firearm’s exact location.

Moreover, the district court specifically addressed the accuracy of the photographs


       4
         We review a district court’s evidentiary rulings for abuse of discretion. See United
States v. Pendas-Martinez, 845 F.2d 938, 941 (11th Cir. 1988).
       5
         In Myers, this Court held that the district court did not abuse its discretion by allowing
into evidence a photograph of a bunk bed in a jail cell that was similar, but not identical, to the
bunk bed in which the defendant police officer’s victim was located at the time of the officer’s
alleged attack on the victim. Another police officer testified that the photograph “fairly and
accurately” depicted the bunk in which the victim was located, except that it was on the opposite
side of the room. Myers, 972 F.2d at 1579.

                                                 6
by stating before the jury that the photographs were “not of the actual vehicle or

what was happening that night.”

       Given that the photographs were admitted only as demonstrative aids, were

not introduced into evidence or allowed into the jury room, and were identified by

both officers as essentially accurate portrayals of the SUV on the night of

Ferguson’s arrest, we cannot say that the district court abused its discretion.6

B.     Jury instruction

       Next, Ferguson argues that the district court abused its discretion by refusing

to give a jury instruction that a defendant’s “mere presence” near an object is not

sufficient to establish possession.7 However, the district court’s jury instructions

included an accurate statement of the law regarding actual and constructive

possession, and Ferguson’s requested instruction was adequately covered by the

charge. Specifically, the district court instructed the jury that a person may have



       6
        Ferguson relies on United States v. Garcia, 916 F.2d 710 (4th Cir. 1990), but Garcia is
distinguishable. The photographs here, unlike the videotape in Garcia, were “‘nearly the same in
substantial particulars as to afford a fair comparison’” for the jury. United States v. Gaskell, 985
F.2d 1056, 1060 (11th Cir. 1993) (citation omitted). Moreover, in this case, the photographs did
not depict anything irrelevant or contrary to the evidence, like the gold coins in Garcia or the
defendant and his family going to church in Garcia.
       7
         “We review a district court’s refusal to give a requested jury instruction for abuse of
discretion.” United States v. Klopf, 423 F.3d 1228, 1241 (11th Cir. 2005). A district court
abuses its discretion in refusing to give a requested jury instruction if: (1) the instruction was a
substantively correct statement of the law; (2) the instruction was not adequately covered by the
jury instructions given; and (3) the defendant’s ability to present an effective defense was
substantially impaired by the district court’s denial of the instruction. Id.

                                                  7
actual or constructive possession of an object, and explained the difference

between the two, stating: “[a] person who is not in actual possession, but who has

both the power and the intention to later take control over something, either alone

or together with someone else, is in constructive possession of it.” The district

court further instructed the jury that in order to have “knowingly” possessed a

firearm, Ferguson must have possessed the firearm “voluntarily and intentionally.”

The jury could not have attributed possession to Ferguson through his mere

presence alone, because mere presence would not establish voluntarily or

intentional possession. Therefore, Ferguson’s requested instruction was

adequately covered by the instructions given to the jury. See United States v.

Rojas, 537 F.2d 216, 219-20 (5th Cir. 1976).8

C.     Sufficiency of the evidence

       Ferguson also claims the trial evidence was insufficient to establish that he

constructively possessed the firearm.9 We disagree.

       Taking the evidence in the light most favorable to the government, the

firearm was directly next to, and in view of, Ferguson as he drove the SUV.

       8
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit that were rendered prior to
October 1, 1981.
       9
         “We review a defendant’s challenge to the sufficiency of the evidence de novo, taking
all reasonable inferences in the government’s favor.” United States v. York, 428 F.3d 1325,
1330 n.6 (11th Cir. 2005), cert. denied, __U.S. __, 126 S. Ct. 2948 (2006).

                                                 8
Ferguson repeatedly dropped his right hand near the location where the gun was

found and was hesitant to obey Officer Jones’s commands to keep both hands on

the wheel. The jury reasonably could have inferred from the location of the

firearm and Ferguson’s continued hand movements toward the center console that

Ferguson had both the power and intention to later take control over the firearm,

and that Ferguson voluntarily and intentionally had the firearm in the SUV with

him. Moreover, Massey testified that she did not remember seeing a gun or

cocaine in the SUV when she was riding in the SUV just a few hours prior to

Ferguson’s arrest. Although both Massey and Jamika testified that several other

people frequently drove the SUV, Massey’s uncontroverted testimony—that there

was no gun or cocaine in the SUV two to three hours prior to Ferguson’s

arrest—also supports the jury’s finding that the gun belonged to Ferguson. The

jury reasonably could have concluded that only Ferguson operated the SUV in the

short interval between the time he dropped Massey off and the time of his arrest.

Accordingly, we must reject Ferguson’s sufficiency-of-the-evidence argument.10



       10
          Ferguson relies heavily on United States v. Pedro, 999 F.2d 497 (11th Cir. 1993), but
that case is distinguishable. In Pedro, there was insufficient evidence to establish Pedro’s
knowledge of the firearm because the firearm was in a suitcase carried by Pedro’s co-defendant.
Pedro, 999 F.2d at 500-02. The government presented no evidence that Pedro knew of the gun;
Pedro was not carrying the suitcase that held the gun; and there was no evidence that Pedro made
any movements towards the suitcase. Id. Here, by contrast, the gun was located directly next to
Ferguson and was readily accessible to Ferguson, and Ferguson made several movements
towards the gun when encountered by Officer Jones.

                                               9
D.     Section 2K2.1(b)(5) enhancement

       Ferguson next argues that the district court incorrectly found that he

possessed the firearm “in connection with” his felony cocaine and marijuana

possession, and improperly imposed a 4-level sentencing enhancement pursuant to

§ 2K2.1(b)(5).11

       Section 2K2.1(b)(5) does not define the phrase “in connection with.”

However, this Court has read the “in connection with” language expansively, and

concluded that “the firearm does not have to facilitate the underlying offense.”

United States v. Rhind, 289 F.3d at 695 (11th Cir. 2002) (concluding that

defendants possessed firearms “in connection with” counterfeiting offense where

two unloaded guns were placed in the back seat of a vehicle with counterfeit

money and the guns reasonably could have been present to protect the counterfeit

money).

       In this case, the baggy of cocaine was at Ferguson’s feet and in his view, and

the firearm was directly next to Ferguson and the cocaine. Ferguson made multiple

movements towards the firearm. Thus, the district court did not commit clear error

in finding that Ferguson possessed the firearm to protect his drugs or himself while



       11
         We review a district court’s application and interpretation of the sentencing guidelines
de novo, but review its findings of fact for clear error. United States v. Rhind, 289 F.3d 690
(11th Cir. 2002).

                                                10
possessing the drugs. See Rhind, 289 F.3d at 695; see also United States v.

Gainey, 111 F.3d 834, 837 (11th Cir. 1997) (determining that a defendant with

heroin around his neck and a firearm in his pants pocket possessed the firearm “in

connection with” the drugs); United States v. Hardin, 139 F.3d 813, 815 n.3 (11th

Cir. 1998) (affirming without discussion district court’s § 2K2.1(b)(5)

enhancement for defendant’s possession of gun “in connection with” defendant’s

possession of methamphetamine).

      Ferguson also contends that the § 2K2.1(b)(5) enhancement was improper

because it punishes him twice for the same conduct or harm. Ferguson relies on

United States v. Brown, 332 F.3d 1341 (11th Cir. 2003), in which this Court

concluded that a § 2K2.1(b)(5) enhancement could not apply where the defendant’s

underlying convictions were for (1) being a felon in possession of a firearm, in

violation of § 922(g), and (2) using and carrying firearms during and in relation to

a drug trafficking offense, in violation of 18 U.S.C. § 924(c). Brown, 332 F.3d at

1342, 1346. However, the defendant in Brown had two underlying convictions,

one of which was a § 924(c) offense for carrying a firearm in relation to a drug

trafficking offense. The sentencing guidelines specifically prohibit applying the §

2K2.1(b)(5) enhancement in that § 924(c) situation. Brown, 332 F.3d at 1345; see

also U.S.S.G. § 2K2.4 cmt. n.4.



                                         11
       In contrast, Ferguson was charged only with the § 922(g) offense, which had

no drug component, and as such, the 4-level enhancement for carrying a firearm in

connection with a felony (his state drug offense) did not punish twice the same

wrong.

E.     Reasonableness of Ferguson’s sentence

       Finally, Ferguson contends that his 120-month sentence is unreasonable, in

violation of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and that

the district court failed to meaningfully consider the 18 U.S.C. § 3553(a)

sentencing factors.12 We disagree.

       A district court need not discuss each § 3553(a) factor. United States v.

Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). If the district court correctly

calculated the defendant’s advisory guidelines range, an acknowledgment that the

district court considered the defendant’s sentencing arguments and the § 3553(a)

factors is sufficient. See United States v. Talley, 431 F.3d 784, 786 (11th Cir.

2005). Moreover, the burden of establishing unreasonableness lies with the party

challenging the sentence. Id. at 788.

       Here, the district court correctly determined that Ferguson’s total offense



       12
        After Booker, we review sentences for reasonableness. United States v. Talley, 431
F.3d 784, 785 (11th Cir. 2005). District courts must correctly calculate the advisory guidelines
range and consider the sentencing factors set forth in § 3553(a). Id. at 786.

                                                12
level was 28 and his criminal history category was IV, which resulted in an

advisory guidelines range of 110 to 137 months’ imprisonment. The district court

imposed a 120-month sentence, which was within that range, albeit also the

statutory maximum. Although a sentence within the advisory guidelines range is

not per se reasonable, we ordinarily expect such a sentence to be reasonable. Id. at

788. Additionally, the district court stated that it “considered the statutory

purposes of sentencing and the sentencing guidelines,” and it found the statutory

maximum guidelines-range sentence “appropriate . . . [and] otherwise reasonable”

because Ferguson previously had been convicted of “carjacking and possession of

a gun in connection with that violent felony, [as well as] drug convictions.” The

district court also specifically rejected Ferguson’s claim that he should receive a

below-advisory guidelines sentence because his gun was unloaded, stating: “an

unloaded gun will scare somebody just as bad as a loaded gun will.” The district

court complied with Talley and Booker, and Ferguson has not shown that his 120-

month sentence was unreasonable.

                                III. CONCLUSION

      For the foregoing reasons, we affirm Ferguson’s conviction and sentence.

      AFFIRMED.




                                           13
