             Case: 13-10908    Date Filed: 07/21/2014   Page: 1 of 8


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-10908
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 5:11-cr-00046-RS-2



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

SARA MARI HOEHN,

                                                            Defendant-Appellant.

                          ________________________

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

                                 (July 21, 2014)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

      A grand jury returned an indictment charging Sara Mari Hoehn with three

counts: conspiring to possess with intent to distribute methamphetamine, 21
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U.S.C. § 846 (Count 1); manufacturing and possessing with intent to distribute

methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1)(A) (Count 2); and possessing a

sawed-off shotgun in furtherance of a drug-trafficking crime, 18 U.S.C. §§ 2,

924(c)(1)(A)(i), (c)(1)(B)(i) (Count 3). After a jury trial, she was found guilty on

all three counts. She was sentenced to 331-months imprisonment.

       Hoehn raises two challenges on appeal. First, she argues that the district

court erred in denying her motion for judgment of acquittal regarding Count 3

because she did not actually possess the shotgun and the evidence was insufficient

to show that she constructively possessed it. Second, she argues that the district

court erred in using the drug quantity estimate in her Presentence Investigation

Report (PSR).1 After careful review, we affirm.

                                              I.

       At trial Hoehn moved for judgment of acquittal on Count 3, arguing there

was insufficient evidence to show that she constructively possessed the shotgun.

We review de novo a district court’s denial of a motion for judgment of acquittal

based on sufficiency of the evidence. United States v. Capers, 708 F.3d 1286,

1296 (11th Cir. 2013). We view the evidence in the light most favorable to the

government and interpret all inferences and credibility choices by the jury in a


1
  Hoehn does not challenge her convictions on Counts 1 and 2, and thus any claims in this
respect are abandoned. United States v. Levy, 416 F.3d 1273, 1275–76 (11th Cir. 2005) (per
curiam).
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manner that supports the jury’s verdict. United States v. Williams, 390 F.3d 1319,

1323 (11th Cir. 2004). We affirm a conviction so long as a reasonable juror could

have found the defendant guilty beyond a reasonable doubt. Id. at 1324.

       To convict a person of possession of a firearm in furtherance of a drug

trafficking crime, the government must prove (1) possession and (2) a connection

to a drug trafficking crime. 18 U.S.C. § 924(c)(1)(A). Possession includes

constructive possession, meaning the person had both the “power or right” and

“dominion and control” over the gun. United States v. Perez, 661 F.3d 568, 576

(11th Cir. 2011) (per curiam). Possession may be sole or joint. Id. at 578 n.12; see

also United States v. Garcia, 655 F.2d 59, 62 (5th Cir. Unit B Sept. 1981)2

(“Constructive possession can be joint, as when more than one person occupy a

room containing the item.”). The government can prove constructive possession

through evidence showing the defendant’s ownership, dominion, or control over

the firearm itself or the place where the firearm was located. United States v.

Cochran, 683 F.3d 1314, 1320 (11th Cir. 2012). “We have found control of

premises to be enough to uphold a conviction on a sufficiency of the evidence

challenge.” Id.




2
 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding
precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. Id. at
1209.
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      Hoehn was arrested at a hotel after the police received a tip that individuals

were manufacturing methamphetamine in room 309 and were armed with a

shotgun and pistol. Three or four officers entered the room with guns drawn and

saw Hoehn crouched down between the bed and the bar. One police officer

testified that a shotgun was within “easy reach” and “somebody could snatch that

gun and shoulder or hip it just in a blink of an eye. It wouldn’t take but one move

to pick that weapon up and have it at the ready.” An agent with the Bureau of

Alcohol, Tobacco, Firearms and Explosives testified that the fact that there were

two firearms in the room was relevant because it was evidence that the

methamphetamine lab in the room was a two-person operation. He also described

the placement of the shotgun as “grab and go.” A different police officer testified

that the shotgun looked like it was “ready to be grabbed at a moment’s notice to be

used.” The shotgun was loaded.

      Given this record, a jury could have reasonably inferred that Hoehn

constructively possessed the shotgun. She exercised dominion or control over the

room in various ways. For example, she requested to be moved to the room where

she was arrested from a different room in the hotel. She also personally requested

various items for the room from the front desk. Further, a juror could reasonably

infer her dominion over the room from evidence that she established it as her

temporary residence, including the presence of an overnight bag with personal


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items including a notebook labeled “Sara’s” that tested positive for Hoehn’s

fingerprints. And Hoehn’s proximity to the loaded shotgun provided additional

evidence of constructive possession. Therefore, we affirm in this respect.

                                           II.

      Because Hoehn argues for the first time on appeal that the district court erred

in using the drug quantity of 734.2 grams of methamphetamine from her PSR, we

review for plain error. United States v. Patterson, 595 F.3d 1324, 1326 (11th Cir.

2010). Under plain-error review, we will only reverse if Hoehn shows (1) an error,

(2) that is plain, and (3) that error affects her substantial rights. United States v.

Bennett, 472 F.3d 825, 831 (11th Cir. 2006) (per curiam). “A substantial right is

affected if the appealing party can show that there is a reasonable probability that

there would have been a different result had there been no error.” Id. at 831–32.

      A “reasonable probability” with respect to the third prong of the plain-error

test is one that is “sufficient to undermine confidence in the outcome” in light of

the record as whole. United States v. Rodriguez, 398 F.3d 1291, 1299, 1304–05

(11th Cir. 2005) (quotation marks omitted). If the effect of an error is “uncertain

or indeterminate” then Hoehn has not met her burden with respect to this prong.

Id. at 1301. She “must prove more than that the record is consistent with [her]

argument; [she] must show that the error actually did make a difference.” United




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States v. Davila, 749 F.3d 982, 997 (11th Cir. 2014) (per curiam) (quotation marks

omitted).

      For cases involving a mixture or substance containing a controlled

substance, the guideline commentary instructs courts to deduct any unusable

portions of the mixture to calculate the weight of the mixture or substance

attributable to the defendant for sentencing purposes. See United States

Sentencing Guidelines (USSG) § 2D1.1, comment. (n.1); see also United States v.

Jackson, 115 F.3d 843, 847 (11th Cir. 1997) (“[T]he entire weight of drug mixtures

which are usable in the chain of distribution should be considered in determining a

defendant’s sentence.” (emphasis added)). Section 2D1.1(c)(4) of the Guidelines

provides a base offense level of 32 where a defendant manufactures at least 500

grams but less than 1.5 kilograms of methamphetamine. USSG § 2D1.1(c)(4).

Section 2D1.1(c)(5) provides a base offense level of 30 for at least 350 grams but

less than 500 kilograms of methamphetamine. Id. § 2D1.1(c)(5). A total offense

level of 35 and a criminal history category of II yields a guideline range of 188–

235-months imprisonment, whereas a total offense level of 33 with the same

criminal history category yields a 151–188-month range. See USSG Ch. 5, Pt. A

(Nov. 2012).

      A police investigator testified that the methamphetamine-making ingredients

in Hoehn’s hotel room would have converted into over one thousand grams of


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methamphetamine. The police sent 468.2 grams of seized liquids from six

different sources to a crime lab, and all six tested positive for methamphetamine.

But not all of the liquid in the room was tested, and not all of the liquid was

necessarily pure methamphetamine. As noted, the PSR used the figure of 734.2

grams, but included no detail about how that precise amount was calculated.

Neither the district court nor the parties discussed the weight of the

methamphetamine assigned to Hoehn at her sentence hearing. The district court

adopted the facts and sentencing calculations in the PSR.

      Here, even if the district court committed plain error by failing to subtract

the unusable portion of the seized methamphetamine mixtures in calculating the

drug weight for which Hoehn was responsible, it still would not warrant reversal.

Hoehn has failed to show by a reasonable probability that the error affected her

total sentence. There is no evidence that any deduction would have resulted in a

net usable mixture of less than 500 grams, the amount necessary to lower the

guideline range used by the court. The testimony at trial merely suggested that

some of the supposed 734.2 grams might not be usable product. Without evidence

as to how much of that amount would have been subtracted as unusable under the

guidelines, we can at most speculate as to the effect of any erroneous calculation.

But that is not enough. Because the effect of any error on the outcome is

“uncertain or indeterminate,” Hoehn has failed to show that her sentence would


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have been different but for the error. Davila, 749 F.3d at 997. Thus, her challenge

fails under the third prong of plain-error review.

      AFFIRMED.




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