           Case: 15-13823   Date Filed: 05/11/2016   Page: 1 of 6


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13823
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:14-cr-00218-ODE-AJB-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                    versus


RICKY NUCKLES,

                                                         Defendant-Appellant.

                      ________________________

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

                             (May 11, 2016)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Ricky Nuckles appeals his convictions for possessing at least five kilograms

of cocaine with the intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(11); 18

U.S.C. § 2, and possessing a firearm in furtherance of that drug offense, id.

§ 924(c)(1)(A)(i), and his sentence of 211 months of imprisonment. Nuckles

challenges the sufficiency of the evidence, the denial of his motion for a mistrial

and to strike a surveillance video recording from evidence, and the enhancement of

his sentence for obstruction of justice. We affirm.

      Nuckles requests de novo review of his convictions, but because he

“present[ed] his case after denial of a motion for judgment of acquittal and then

fail[ed] to renew his motion . . . at the end of all the evidence,” we review his

“challenge to the sufficiency of the evidence for a manifest miscarriage of justice,”

United States v. House, 684 F.3d 1173, 1196 (11th Cir. 2012). Under this standard,

we will not disturb a “conviction unless the evidence on a key element of the

offense is so tenuous that [the] conviction [is] shocking.” Id. (quoting United

States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006)). Direct and

circumstantial evidence are given equal weight, but “[w]here the government relies

on circumstantial evidence, reasonable inferences . . . must support the jury’s

verdict.” United States v. Doe, 661 F.3d 550, 560 (11th Cir. 2011) (quoting United

States v. Klopf, 423 F.3d 1228, 1236 (11th Cir. 2005)).




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      Sufficient evidence supports Nuckles’s conviction for possessing cocaine

with the intent to distribute. See 21 U.S.C. § 841(a)(1). While Michael Connolly,

an agent of the Drug Enforcement Agency, was at a Valero gas station, he saw a

man transfer a bulky suitcase from his sedan to the back seat of Nuckles’s Ford

Taurus. Connolly suspected that the transaction involved drugs because the Taurus

was parked oddly with its gas lid facing away from the fuel pump; the man parked

the sedan on the opposite side of the fuel pump and moved the suitcase swiftly; the

man found the trunk locked, but glanced toward the convenience store and the tail

lights of the Taurus then “flashed” consistent with the trunk being unlocked

remotely; and after the man drove away, the tail lights of the Taurus illuminated a

second time. Connolly met Nuckles at his car and asked him about the suitcase.

Nuckles acted “visibly nervous” and evasive, refused to look inside his car, denied

ownership of the suitcase, asserted that he had been “inside the gas station,” and

returned to the convenience store. Nuckles’s response to Connolly “evidenc[ed] a

consciousness of guilt.” See United States v. Stanley, 24 F.3d 1314, 1321 (11th Cir.

1994). Nuckles returned approximately one minute later and consented for

Connolly to search the Taurus, and Connolly opened the suitcase to discover

$750,000 of cocaine that had been packaged to distribute in kilogram and half-

kilogram quantities. See United States v. Poole, 878 F.2d 1389, 1392 (11th Cir.

1989). And a reasonable jury could have found that Nuckles exercised dominion


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over the drugs that were placed in his car. See United States v. Leonard, 138 F.3d

906, 909 (11th Cir. 1998). Still photographs corroborated Connolly’s testimony

that the car was unlocked and relocked remotely to facilitate the delivery.

      Sufficient evidence also proves that Nuckles possessed a firearm in

furtherance of his drug offense. See 18 U.S.C. § 924(c)(1)(A)(i). Nuckles admitted

that he had a gun in his car. And a detective who assisted Connolly found a loaded

firearm and a magazine full of ammunition in the pocket of the driver’s side door.

Based on Nuckles’s ready accessibility to the firearm, a jury reasonably could have

inferred that Nuckles possessed the firearm to safeguard the cocaine. See United

States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008).

      The district court did not abuse its discretion when it denied Nuckles’s

motion for a mistrial and to strike the surveillance video recording. Nuckles argues

that the government committed a “discovery violation” and that he was prejudiced

by the admission of the videotape because it did not depict that the Taurus’s tail

lights illuminated as the courier walked from its trunk to the rear door, but Nuckles

falls short of establishing that the admission of the videotape violated his

substantial rights. See United States v. Bueno-Sierra, 99 F.3d 375, 380 (11th Cir.

1996). Nuckles fails to identify which discovery requirement the government

violated. And Nuckles cannot prove that his ability to mount a defense was

compromised by admission of the videotape, which he used to impeach Connolly


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and reveal that he had failed to mention the illumination of the tail lights in his

written report of the incident, in a summary that he prepared of the surveillance

video recording, or during a pre-trial hearing. Moreover, we cannot say that

Nuckles was prejudiced by the omission in the videotape when he allowed the

government, without objection, to introduce still photographs bearing date and

time stamps that showed Nuckles’s tail lights illuminate before and after the

courier transferred the suitcase to Nuckles’s car.

      The district court did not abuse its discretion when it enhanced Nuckles’s

sentence for obstruction of justice. A district court may increase a defendant’s

offense level by two levels if he impeded the investigation or concealed evidence

relevant to his offense of conviction. United States Sentencing Guidelines Manual

§ 3C1.1 & cmt. n.4(D) (Nov. 2014). Nuckles’s presentence investigation report

stated that, when he returned to the convenience store after speaking with

Connolly, he discarded a cellular telephone. Nuckles did not challenge this portion

of the presentence report or deny discarding a cellular telephone. Nuckles objected

to the enhancement on the ground that “no evidence presented at trial” showed that

he “tossed a cell phone,” but surveillance video recordings corroborate the facts in

the presentence report. The recordings show that Nuckles used a cellular telephone

after he arrived at the gas station, while he waited inside the convenience store for

the suitcase, and when he exited the convenience store; that after Connolly


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confronted him, Nuckles returned to the convenience store and tossed an object

under a countertop; and that neither Connolly nor a second officer who patted

Nuckles down discovered a cellular telephone in Nuckles’s belongings. The district

court was entitled to conclude that Nuckles willfully disposed of his cellular

telephone to frustrate an imminent investigation and that he obstructed the

investigation by destroying evidence connected to the cocaine and its distribution.

See United States v. Revel, 971 F.2d 656, 661 (11th Cir. 1992).

      We AFFIRM Nuckles’s convictions and sentence.




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