                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                FILED
                          ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           March 6, 2006
                               No. 05-12379
                                                         THOMAS K. KAHN
                           Non-Argument Calendar             CLERK
                         ________________________

                  D. C. Docket No. 04-00204-CR-BBM-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                   versus

DEWAYNE B. SMITH,
a.k.a. Dewayne Smith,

                                                         Defendant-Appellant.


                         ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                               (March 6, 2006)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Dwayne B. Smith appeals (1) his conviction following a jury trial for

possessing a firearm in furtherance of a drug-trafficking offense, in violation of 18

U.S.C. § 924(c), and (2) his total 111-month sentence for being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1); possessing with

intent to distribute a detectible amount of cocaine, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(c), and his § 924(c) offense. Smith argues on appeal that the

government’s evidence was not sufficient for a reasonable jury to conclude that he

possessed firearms in furtherance of a drug-trafficking offense, and that the district

court, therefore, erred in denying his motion for a judgment of acquittal, filed

pursuant to Fed.R.Crim.P. 29. Furthermore, Smith contends that the court erred in

adopting facts in Smith’s presentence investigation report (“PSI”) relating to his

offenses of conviction, in violation of the Supreme Court’s decision in Shepard v.

United States, 544 U.S. 13, ___, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005).

For the reasons set forth more fully below, we affirm.

      After a federal grand jury returned an indictment, charging Smith with the

above-referenced offenses, he plead guilty to the §§ 922(g)(1) and 841(a)(1)

offenses. During Smith’s plea colloquy, he agreed that the government could

establish that (1) officers with the Doraville Police Department searched an

apartment that Smith had used, but at which he did not reside; (2) during this



                                           2
search, the officers recovered from throughout the apartment eight-and-a-half

ounces of cocaine, three ounces of marijuana, baggies, and a scale; (3) the officers

also recovered from underneath a seat cushion and next to the sofa a loaded .38

special .357 Magnum and a loaded .45 caliber revolver; (4) Smith previously had

been convicted of at least one controlled-substance offense; (5) he previously had

traded drugs to obtain the firearms at issue; (6) he had the firearms for protection;

(7) he intended to sell the cocaine; and (8) the firearms either were made or

assembled outside of Georgia.

      Smith then proceeded to a jury trial on his remaining § 924(c) offense,

during which John Kanupke, an investigator with the Special Investigation Section

of the Doraville Police Department, testified that, pursuant to a search warrant

obtained through information supplied by a confidential informant (“CI”), officers

entered an apartment at 1449 Briarwood Road, Apartment 32, Atlanta, Georgia,

and they searched it for drugs and drug paraphernalia. On entering this apartment,

Investigator Kanupke observed that it was unfurnished, except for a couch, chair,

and a television set, and that it contained no personal items, other than some

clothing in a corner and an insurance letter addressed to Smith in a kitchen cabinet.

      Investigator Kanupke further testified that, as part of this search, the officers

recovered (1) three baggies of cocaine from inside a cabinet, next to an open box of



                                           3
baking soda and sandwich bags; (2) an electronic digital scale, with white residue

on its surface, from the lower shelf of the same cabinet; (3) an additional baggie of

cocaine from inside a dustpan on the top of the refrigerator; (4) a box of 12

Remington .45 caliber bullets with dime-size baggies from drawers adjacent to the

refrigerator; and (5) three baggies of cocaine from inside a light fixture in the

bathroom. In the living-room area, the officer also recovered (1) a loaded .38

special .357 Magnum revolver from the floor, next to the couch; and (2) a loaded

Smith and Wesson .45 caliber revolver from underneath the middle cushion of the

couch. When Smith drove up to the apartment during this search, the officers

recovered from his person more than $1,000 in U.S. currency. The officers also

discovered that one of Smith’s keys fit the lock of the apartment. After being

taken to the police station, Smith conceded that: (1) although the apartment was not

his primary residence, he used it; (2) he owned the cocaine recovered from the

residence; (3) two years earlier, he had purchased the firearms with $100 worth of

cocaine; and (4) he had the firearms for protection, because he was scared.

      At the close of the government’s evidence, Smith moved for a Rule 29

judgment of acquittal, arguing that the government had produced insufficient

evidence to prove that he possessed the firearms at issue in relation to, or in




                                           4
furtherance of, a drug-related offense. After the district court reserved its ruling on

this Rule 29 motion, the jury found Smith guilty of the § 924(c) offense.

       Prior to sentencing, the probation officer prepared a PSI, which included a

description of the offense conduct. Smith objected to this description, arguing that,

because this information was obtained by reviewing the prosecutor’s case file and

the investigative police reports, it was hearsay. Smith also cited in support to

Shepard, 544 U.S. at ___, 125 S.Ct. at 1263, in which the Supreme Court decided

that a sentencing court may not rely on police reports in deciding whether a prior

conviction was a “generic burglary,” in the context of determining whether the

conviction is a “violent felony” under the Armed Career Criminal Act.1 The

probation officer responded that the inclusion of this offense conduct was proper

because (1) Smith admitted it during his plea colloquy as it related to his

§§ 922(g)(1) and 841(a)(1) offenses, and (2) the government established at trial his

§ 924(c) offense conduct.

       At sentencing, Smith renewed his objection to the PSI’s inclusion of offense

conduct that the probation officer obtained solely by reviewing the prosecutor’s

case file and police reports. Smith also explained that, to the extent the


       1
         The Armed Career Criminal Act sets a mandatory minimum 15-year sentence for a
defendant who is convicted of possessing a firearm, pursuant to 18 U.S.C. § 922(g), when the
defendant has three prior convictions for serious drug offenses, “violent felonies,” or a
combination of both. See 18 U.S.C. § 924(e).

                                               5
government produced evidence at trial, he did not believe that this evidence

established his § 924(c) conviction. Apparently interpreting this additional

explanation as a renewal of Smith’s Rule 29 motion, the court stated as follows:

      I think it is a very close question, the [§] 924(c) conviction. Because
      the facts of the case were that Mr. Smith was down in his automobile.
      The gun was up in the apartment. There wasn’t any evidence that I
      heard [] that there was a drug transaction being conducted at the time.
      So it gives me just intellectually a problem making that leap . . . But
      the precedent, as you know, in the Eleventh Circuit, you know, I think
      the jury was properly instructed on what the rules are and they found
      that he did have the gun in furtherance of a drug[-]trafficking offense.
      I think they were instructed that it has to have some purpose or effect
      with respect to the drug[-] trafficking crime, and had I been on the
      jury I’m not sure I would have seen that from the evidence in this
      case, but, of course, that’s not the standard on a motion for a directed
      verdict. I think I’ve got to deny that. I don’t know what the Eleventh
      Circuit will do with that and I hope you’ll present the question to
      them.

      In addition to responding that Shepard was inapplicable because Smith,

unlike the defendant in Shepard, was not an armed career offender, the government

offered testimony from the probation officer who prepared Smith’s PSI that the

officer had relied, at least in part, on charging documents and sentencing

documents in determining Smith’s criminal-history points. On cross-examination,

the probation officer conceded that she also relied on information she received

from the prosecutor’s file in preparing the offense-conduct section of the PSI.

Smith, however, clarified that he was not objecting to the PSI’s calculation of his



                                          6
offense level or his criminal-history points. Explaining that it only was relying on

offense conduct in the PSI that it had learned through the plea colloquy and at trial,

the court overruled this objection. The court then adopted the PSI’s factual

findings and calculations, and it sentenced Smith to 111 months’ imprisonment, 3

years’ supervised release, and a $1,500 fine.

      Smith contends that his appeal presents an issue of first impression, that is,

does a defendant’s possession of firearms satisfy the “in furtherance of”

requirement in § 924(c) when there is no evidence that the defendant was involved

in a drug transaction at the time he possessed the firearms. Smith asserts that the

government presented no evidence showing that the firearms were accessible when

drug transactions occurred, or that he possessed the firearms to protect either the

drugs or their profits. Smith also contends that neither his status as a convicted

felon in possession of a firearm, nor his general concession that he obtained the

firearms for “protection because he was scared,” was sufficient to establish the “in

furtherance of” requirement. Moreover, Smith argues that the jury’s finding that

the government satisfied § 924(c)’s “in furtherance of” requirement was

inconsistent with the statute’s legislative history, our caselaw, and persuasive

authority from other circuits.




                                           7
      We review de novo the sufficiency of evidence to support convictions.

United States v. Pineiro, 389 F.3d 1359, 1367 (11th Cir. 2004). We, however,

resolve all reasonable inferences in favor of the jury’s verdict. Id. “The evidence

is sufficient so long as a reasonable trier of fact, choosing among reasonable

interpretations of the evidence, could find guilt beyond a reasonable doubt.” Id.

(quotation omitted).

      The statute at issue, § 924(c)(1)(A), is applicable when:

      [A]ny person who, during and in relation to any crime of violence or
      drug[-] trafficking crime . . . for which the person may be prosecuted
      in a court of the United States, uses or carries a firearm, or who, in
      furtherance of any such crime, possesses a firearm . . ..

18 U.S.C. § 924(c)(1)(A). Prior to Congress adding the “in furtherance of” prong

of this statute in November 1998, the government was required to prove that the

defendant used or carried the firearm. See United States v. Suarez, 313 F.3d 1287,

1291-92 (11th Cir. 2002) (discussing prior caselaw interpreting § 924(c)).

Moreover, in construing the “use” prong of this prior version of § 924(c), the

Supreme Court held in Bailey v. United States, 5165 U.S. 137, 143-44, 116 S.Ct.

501, 505-06, 133 L.Ed.2d 472 (1995), that mere possession of a firearm during

such a crime was not sufficient and that an active employment of the firearm by the

defendant, instead, was required.




                                          8
      Subsequent to the 1998 Amendment to § 924(c), we adopted the Fifth

Circuit’s reasoning in United States v. Ceballos-Torres, 218 F.3d 409 (5th Cir.

2000), that is, that the plain meaning of “furtherance” was consistent with the

legislative intent of this amendment and not in violation of the canons of statutory

construction. United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002)

(citing Ceballos-Torres, 218 F.3d at 415). We discussed that the legislative history

indicated that the amended version of the statute added the phrase criminalizing

possession “in furtherance of” a drug- trafficking crime to “revers[e] the restrictive

effect of the Bailey decision.” Timmons, 293 F.3d at 1252 (quoting H.R. Rep.

105-455 at 6 (1997)). Thus, we concluded that, although “the presence of a gun

within the defendant’s dominion and control during a drug[-]trafficking offense is

not sufficient by itself to sustain a § 924(c) conviction,” a conviction is supported

by “a showing of some nexus between the firearm and the drug[-]selling

operation.” Timmons, 283 F.3d at 1253.

      Additionally, we adopted in Timmons the following non-exclusive list of

factors for determining whether this nexus exists: (1) the type of drug activity that

was being conducted, (2) the accessibility of the firearm, (3) the type of firearm,

(4) whether the firearm was stolen, (5) whether the possession of the firearm was

legal, (6) whether the firearm was loaded, (7) the firearm’s proximity to the drugs



                                           9
or drug profits, and (8) the time and circumstances under which the firearm was

found. Id. Applying these factors in Timmons, we concluded that, although the

defendant was standing outside of his apartment when the police arrive, he had

possessed a firearm “in furtherance of” a drug trafficking offense when he had on

his person a cellular phone and a pager, and the police recovered (1) a two-way

radio from the ground a few feet away from the defendant, (2) documents from

inside the apartment indicating that the defendant lived there, (3) two fully loaded

firearms from the top of the stove-top oven, (4) an empty ammunition box of 9mm

cartridges from inside the oven, (5) a bullet-proof vest from the closet next to the

living room, (6) cocaine base and $350 from inside a drawer under the stove, (7) a

plastic baggie with individual hits of cocaine base from under the cushions of the

couch, and (8) six individually packaged rocks of cocaine base from a shoe

matching the defendant’s size in the bedroom of the apartment. Id. at 1249, 1253.

      Similarly, in United States v. Suarez, 313 F.3d 1287 (11th Cir. 2002), one of

the defendants argued that his § 924(c) conviction was not supported by sufficient

evidence because the evidence showed that his possession of a firearm was

“merely coincidental with the criminal conduct.” Id. at 1291. Applying the

Timmons factors, we discussed that (1) the defendant’s residence, where the

firearms were recovered, was the initial delivery point of the drugs from Mexico;



                                          10
(2) the firearms recovered from the residence consisted of the civilian version of an

AK-47, two semi-automatic rifles, a sawed-off shotgun, two semi-automatic

pistols, and a Tech .9 millimeter Intertech pistol; (3) the firearms were distributed

in several different places and were easily accessible; (4) two of the firearms were

illegally shortened; and (5) none of the firearms was of a type typically used for a

legal purpose, such as hunting. Id. at 1292-93. We concluded that the jury

reasonably could have inferred that the firearms recovered from the residence were

to be used to protect the conspirators’ investment in their shipment, and that the

evidence in the case was sufficient to support a conviction for possession of a

firearm in furtherance of a drug-trafficking crime. Id. at 1293.

      Applying the Timmons factors to the facts in the instant appeal, Investigator

Kanupke testified that the officers recovered from the apartment in question

(1) three baggies of cocaine from inside an upper cabinet, next to an open box of

baking soda and sandwich bags; (2) an electronic digital scale, with white residue

on its surface, from the lower shelf of the same cabinet; (3) an additional baggie of

cocaine from inside a dustpan on the top of the refrigerator; (4) a box of 12

Remington .45 caliber bullets with several dime-size baggies from drawers

adjacent to the refrigerator; and (5) three baggies of cocaine from inside a light

fixture in the bathroom. Moreover, the firearms, which Investigator Kanupke



                                          11
testified were recovered from the floor, next to the couch in the living room, and

underneath the middle cushion of the couch, were readily accessible. Indeed, to

the extent Smith is contesting accessibility because he was stopped and arrested

outside of the apartment, the officers discovered that one of Smith’s keys fit the

lock of the apartment, and an insurance paper recovered from the apartment had

Smith’s name on reflected that he at least used the apartment. See United States v.

Miranda, 425 F.3d 953, 959 (11th Cir. 2005) (explaining that, for purposes of

§ 924(c), “[p]ossession may be actual or constructive, joint or sole”) (quotation

omitted).

      Furthermore, similar to the firearms in Suarez, neither the .38 special .357

Magnum, nor the .45 caliber revolver, was of a type typically used for a legal

purpose, such as hunting. See Suarez, 313 F.3d at 1292-93. These firearms were

loaded, as well as being illegally possessed by a convicted felon and obtained in

exchange for drugs. Similar to the facts in Timmons, a box of 12 Remington .45

caliber bullets were recovered in close proximity in the kitchen to evidence

indicating drug distribution, including baggies of cocaine, an open box of baking

soda, sandwich bags, and an electronic digital scale with white residue on its

surface. See also Timmons, 283 F.3d at 1249, 1253. Moreover, despite Smith’s

contention that his general statement that he had the firearms for protection did not



                                          12
establish the requisite nexus, the jury, in reviewing this admission as well as the

evidence recovered from the apartment, reasonably could have inferred that the

firearms recovered from the residence were to be used to protect the intended drug

trafficking activity. See Suarez, 313 F.3d at 1293.

       Thus, “a reasonable trier of fact, choosing among reasonable interpretations

of the evidence,” could have found Smith guilty beyond a reasonable doubt of

possessing a firearm in furtherance of a drug-trafficking offense, and the district

court did not err in denying Smith’s Rule 29 motion. See Pineiro, 389 F.3d at

1367. We, therefore, affirm Smith’s § 924(c) conviction.

       Smith also is arguing on appeal that the district court erred in adopting the

PSI’s factual findings as they related to his possession with intent to distribute

cocaine base when the probation officer testified at sentencing that she relied upon

the government’s case file and police reports. In raising this argument, Smith

again relies on the Supreme Court’s holding in Shepard.

       Post-Booker,2 we continue to review a district court’s factual determinations

for clear error. See United States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir.

       2
          The Supreme Court in Booker held that the mandatory nature of the federal guidelines
rendered them incompatible with the Sixth Amendment’s guarantee to the right to a jury trial.
See United States v. Booker, 543 U.S. 220, ___, 125 S.Ct. 738, 749-51, 160 L.Ed.2d 621
(2005). Furthermore, the Booker Court reaffirmed that “[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a
jury beyond a reasonable doubt.” See id. at ___, 125 S.Ct. at 756.

                                                13
2005) (explaining that Booker did not alter this Court’s standards of review). We

cannot find clear error unless we are “left with a definite and firm conviction that a

mistake has been committed.” Id. at 1177 (quotation omitted). On the other hand,

we review de novo the application by the district court of law to facts. United

States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005).

      As discussed above, the Supreme Court decided in Shepard that a sentencing

court may not rely on police reports in deciding whether a prior conviction was a

“generic burglary,” in the context of determining whether the conviction is a

“violent felony” under the Armed Career Criminal Act. Shepard, 543 U.S. at ___,

125 S.Ct. at 1263. Instead, when it is impossible to determine from the judgment

or statute whether the prior conviction satisfies the enhancement statute, the court’s

review “is limited to the terms of the charging document, the terms of the plea

agreement or transcript of colloquy between judge and defendant in which the

factual basis for the plea was confirmed by the defendant, or to some comparable

judicial record of this information.” Id.

      In the instant appeal, however, Smith was not sentenced as an armed career

criminal. At sentencing, Smith also conceded that he was not challenging the

court’s determination of his criminal history. Moreover, Smith has failed to cite to

caselaw in which either the Supreme Court or this Court has extended the Supreme



                                            14
Court’s decision in Shepard to facts in a PSI relating to the defendant’s offense

conduct. Thus, we conclude that Shepard is inapplicable.3

       Regardless, even if the Supreme Court’s decision in Shepard was applicable,

Smith’s argument is without merit. In addressing Smith’s Shepard objection

during sentencing, the district court explicitly stated that, although the PSI

arguably contained hearsay evidence, the court was relying solely on offense

conduct described in the PSI that either Smith had admitted during his plea

colloquy, or the government had established at trial. Thus, no error occurred.

       Accordingly, we conclude that the evidence was sufficient for a reasonable

jury to conclude that Smith possessed firearms in furtherance of a drug-trafficking

offense. The district court, therefore, did not err in denying Smith’s Rule 29

motion for a judgment of acquittal. We also conclude that, even if the Supreme

Court’s decision in Shepard was applicable, the district court did not err in relying


       3
          We note that, although a plurality of the Supreme Court in Shepard explained that,
while a dispute over whether a burglary was a “violent felony” for purposes of § 924(e)
enhancement could be “described as a fact about a prior conviction, it [was] too far removed
from the conclusive significance of a prior judicial record, and too much like the findings subject
to Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi
[v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)], to say that Almendarez-
Torres [v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)] clearly
authorizes a judge to resolve the dispute,” see Shepard, 543 U.S. at ___, 125 S.Ct. at 1262, we
repeatedly have explained post-Shepard that Almendarez-Torres must be followed because the
Supreme Court has not explicitly overruled Almendarez-Torres,” see United States v. Greer,
No. 05-11295, manuscript op. at 12-18 (11th Cir. Jan. 10, 2006) (summarizing caselaw in which
we have rejected the argument that Almendarez-Torres was undermined by Apprendi and its
progeny).

                                                15
on offense conduct described in the PSI which had also been admitted or proven at

trial. We, therefore, affirm Smith’s § 924(c) conviction and sentences.

      AFFIRMED.




                                         16
