                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                      FILED
                       ________________________          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               October 31, 2006
                              No. 05-14442                  THOMAS K. KAHN
                        ________________________                CLERK

                     D. C. Docket No. 04-21018-CR-JIC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

LAPATRICK DEON MCINTOSH,
a.k.a. Lapatrick Deon Macintoch,
a.k.a. Fat,
a.k.a. Pat,

                                                          Defendant-Appellant.


                        ________________________

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

                             (October 31, 2006)

Before EDMONDSON, Chief Judge, BARKETT and COX, Circuit Judges.

PER CURIAM:
      Lapatrick Deon McIntosh (“McIntosh”) appeals his conviction and sentence

for conspiracy to possess with intent to distribute fifty grams or more of cocaine

base. We affirm, finding no merit to the various arguments raised on appeal.

      First, we reject the argument that the evidence was insufficient to support the

jury’s guilty verdict in light of all the testimony, especially that of two co-

conspirators who directly implicated McIntosh and testified against him.

      Second, we find no abuse of discretion in the exclusion of an

unauthenticated draft transcript of a wiretap admitted in evidence. McIntosh

concedes that the transcript correctly reflected the contents of the tape. Moreover,

in light of all of the evidence in this case, even if erroneous, it would have been

harmless.

      Third, we find no error in admitting in evidence a kilogram of cocaine found

in a co-conspirator’s backpack because the evidence at trial demonstrated its

substantial probative value. The tapes introduced at trial demonstrated that the

contents of the backpack were related to the conspiracy in which McIntosh was a

participant. We have held that “evidence inextricably intertwined with the chain

of events surrounding the crime charged is admissible.” United States v. Gomez,

927 F.2d 1530, 1535 (11 th Cir. 1991). Under this precedent, there was no abuse of

discretion in the admission of this evidence.



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      We likewise find no error in the district court’s instruction to the jury that

they should indicate on the special verdict form the amount of drugs involved in

the conspiracy. We will not reverse a conviction based on erroneous jury

instructions unless, after examining the entire charge, we find that the issues of law

were inaccurately presented, the charge included crimes not contained in the

indictment, or the charge improperly guided the jury in such a substantial way as to

violate the defendant’s right to due process. See United States v. Smith, 918 F.2d

1551, 1564 (11 th Cir. 1990). Having reviewed the jury charge, we conclude that it

neither misstated the law or misled the jury to the prejudice of the defendant. See

United States v. Grigsby, 111 F.3d 806, 814 (11 th Cir. 1997).

      We also reject as meritless McIntosh’s argument that the district court

abused its discretion in denying his motion for a new trial and judgment of

acquittal. The evidence must preponderate heavily against the verdict, such that it

would be a miscarriage of justice to let the verdict stand. United States v.

Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). This standard cannot be met in

this case in light of the overwhelming evidence of McIntosh’s guilt.

      Finally, we find no error in the imposition of McIntosh’s sentence.

McIntosh asserts that the district court committed several errors in sentencing. He

argues that the district court clearly erred by imposing enhancements for drug



                                           3
quantity, for possessing a firearm, for denying a minor role reduction, and for

treating him as a career offender. The career offender enhancement resulted in an

offense level of 37 and a sentencing guideline range of 360 months to life. The

district court, after engaging in a reasonableness analysis under 3553(a), imposed a

sentence at the bottom of the advisory guidelines range—360 months’

imprisonment, to be followed by ten years’ supervised release. We conclude that

the district court did not err in its sentence.


       The trial court made a finding that the facts presented through the trial

testimony of Harris and Butts supported, by a preponderance of the evidence, a

finding that McIntosh was responsible for one kilogram of cocaine base, resulting

in a base offense level of 36. See U.S.S.G. §§ 2D1.1(a)(3) and (c). A sentencing

court does not err when it enhances a sentence under an advisory guidelines

scheme based on facts found by a preponderance of the evidence. United States v.

Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005). Thus, we find no error in the drug

quantity enhancement.


       The district court also did not err in applying a two-level enhancement for

possession of a firearm during a drug offense. According to the PSR, McIntosh

was subject to the two-level enhancement because a search of his residence

incident to his arrest revealed a firearm in his bedroom. See U.S.S.G. §

                                             4
2D1.11(b)(1). The two level enhancement is applicable “if the weapon was

present, unless it is improbable that the weapon was connected with the offense.”

U.S.S.G. § 2D1.11, comment. (n.1). The evidence presented by the government

was sufficient for the district court to conclude it probable, by a preponderance of

the evidence, that the weapon was connected with the offense. It was reasonable

for the district court to conclude from the location of the firearm in the bedroom

that McIntosh shared with his girlfriend, together with the crack found in the

dresser drawer in the same bedroom, and the cocaine cooking equipment found in

the common area of the house, that McIntosh possessed the firearm during conduct

relevant to his drug conspiracy. See United States v. Hunter, 172 F.3d 1307, 1309

(11th Cir. 1999). Consequently, McIntosh has not shown that the district court’s

application of the enhancement was clearly erroneous.


      The district court also did not err in denying McIntosh a two-level reduction

due to his minor role in the alleged conspiracy. To warrant a minor role

adjustment, the evidence must demonstrate that the defendant’s role made him

substantially less culpable than the average participant. USSG § 3B1.2 comment.

(backg’d) (emphasis added). McIntosh offered no evidence that he was less

culpable than most of the other participants. On the other hand, the government

presented evidence that he was a street dealer who handled at least a kilogram of


                                          5
crack cocaine, and that he personally cooked the crack that he and Butts sold.

      The district court also did not err in sentencing McIntosh as a career

offender. USSG § 4B1.1 provides that a defendant convicted of a crime of

violence or a controlled substance offense and who has two prior convictions for

such offenses is a career offender with special sentencing offense levels. U.S.S.G.

§ 4B1.1. The PSI listed McIntosh as having three prior qualifying convictions:

burglary of an occupied dwelling, armed robbery, and robbery in 1990; possession

with intent to sell or deliver cocaine in 1997; and aggravated battery and resisting

arrest in 1997. Each of these convictions qualifies as a crime of violence or a

controlled substance offense under U.S.S.G. § 4B1.1, thereby qualifying McIntosh

as a career criminal. See 18 U.S.C. § 924(e)(2)(B) (explicitly defining armed

robbery as a “crime of violence” under ACCA); U.S.S.G. § 2L1.2(b)(1)(A)(ii),

comment. (n.1(B)(iii)) (stating that aggravated assault is a crime of violence); see

also United States v. Washington, --- F.3d ----, 2006 WL 2550041, at n.9 (9th Cir.

Sept. 6, 2006) (stating that armed robbery “armed robbery clearly fit the definition

of “crime of violence” contained in section 924(c)”).


      McIntosh’s final argument is that his sentence, at the bottom of the

sentencing guidelines range, is unreasonable because the district court failed to

articulate the § 3553(a) factors it relied upon in imposing the sentence. The


                                          6
district court stated that it had considered the statements of all parties, the PSI,

which included advisory guidelines recommendations, and all of the § 3553(a)

factors. The district court expressly concluded that the low end of the advisory

guideline range “fully reflects the seriousness of the offense and provides just and

reasonable punishment.” McIntosh has not shown that the district court erred in its

§ 3553(a) analysis nor that the sentence imposed is unreasonable. Accordingly, his

sentence is affirmed.

      AFFIRMED.




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