               Case: 12-11836      Date Filed: 07/10/2013     Page: 1 of 21


                                                                   [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT

                             ________________________

                                   No. 12-11836
                             ________________________

                     D.C. Docket No. 2:10-cr-00140-WKW-CSC-1

UNITED STATES OF AMERICA,

                            Plaintiff-Appellee,

versus

ANTWOIN HARBISON,
a.k.a. Gump,

                            Defendant-Appellant.

                             ________________________

                     Appeal from the United States District Court
                         for the Middle District of Alabama
                           ________________________
                                  (July 10, 2013)

Before WILSON and COX, Circuit Judges, and VOORHEES, ∗ District Judge.

PER CURIAM:




         ∗
        Honorable Richard Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.
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      Antwoin Harbison appeals his conviction and 180-month sentence. After a

three-day trial, Harbison was found guilty of conspiring to lease, rent, use, and

maintain a residence for the purpose of manufacturing, distributing, and using

crack cocaine and cocaine hydrochloride in violation of 21 U.S.C. §§ 856(a)(1) and

846, conspiring to possess with the intent to distribute crack cocaine in violation of

21 U.S.C. § 846, and possession with intent to distribute 28 grams or more of crack

cocaine in violation of 21 U.S.C. § 841(a)(1). On appeal, Harbison contends that

the original search warrant issued violated the Fourth Amendment’s particularity

requirement and that the denial of his motion for mistrial based upon an alleged

violation of Rule 16(a)(1)(A) constitutes reversible error. Harbison also challenges

the imposition of four sentencing enhancements, namely: (1) U.S.S.G.

' 2D1.1(b)(1), for possession of a firearm; (2) ' 2D1.1(b)(12), for maintaining a

premises for the purpose of manufacturing drugs; (3) ' 3B1.1(c), for assuming a

leadership role in respect to his offenses; and (4) '' 2D1.1(e)(1) and 3A1.1(b)(1),

for committing a sexual offense against, and distributing crack cocaine to, a

vulnerable victim. For the following reasons, we affirm on all accounts.

                                          I.

      A.     Constitutionality of Search Warrant

      We first consider whether the search warrants issued for Harbison’s

residence were sufficiently particular under the Fourth Amendment despite


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inclusion of an erroneous street address. Prior to trial, Harbison unsuccessfully

moved to suppress the evidence seized during the search as well as any fruit

derived from execution of the search warrants.1              We review a “district court’s

denial of a defendant’s motion to suppress under a mixed standard of review,

examining the district court’s findings of fact for clear error and the district court’s

application of law to those facts de novo.” United States v. King, 509 F.3d 1338,

1341 (11th Cir.2007) (per curiam).

       The physical evidence introduced at trial during the Government’s case-in-

chief was obtained after a search of Harbison’s mobile home located in Prattville,

Alabama. 2 The search warrant described the property as “1563” while the target

trailer had the number “1551” on it. Harbison’s mobile home was one of four

trailers located on a lot that could only be accessed by an unpaved and unmarked

dirt road off of Alabama Highway 14 in an unincorporated area of Autauga

County. At the time law enforcement sought to obtain the first search warrant,

       1
          Upon referral for recommended disposition of Harbison’s motion to suppress, the
magistrate judge found that the officers’ knowledge and prior experience at the residence,
combined with the description within the warrant, supported a decision upholding the search
warrant as sufficiently particular. The presiding district judge adopted the magistrate’s findings
and recommendation.
       2
          There were a total of three search warrants executed at Haribson’s residence in
connection with this investigation; the respective dates are April 9, 2010, July 9, 2010, and July
29, 2010. All of the search warrants included the same address and physical description. The 28
grams or more of crack cocaine charged in the indictment was seized in connection with the first
search on April 9, 2010. A smaller quantity of crack cocaine was seized in connection with the
second search on July 9, 2010.


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surveillance had been undertaken from a wooded area surrounding the property but

law enforcement had not been able to ascertain a residence number.                             Law

enforcement obtained the address to include in the search warrant application from

the Prattville City Map Book (“City Map Book”). The City Map Book identified

the unpaved road leading from Highway 14 to the property the trailer sat on as

“1563.”

       As a result of this discrepancy, Harbison contends that the officers were left

“with no way of determining the correct trailer to search.” Specifically, Harbison

claims that because the City Map Book did not identify four different trailers on

the property, all allegedly similar in appearance, the physical description provided

in the warrant was insufficient to remedy inclusion of the erroroneous street

address.3

       Our decision in United States v. Burke controls. 784 F.2d 1090 (11th Cir.

1986). In Burke, we explained:

             A warrant’s description of the place to be searched is not
       required to meet technical requirements or have the specificity sought
       by conveyancers. The warrant need only describe the place to be
       searched with sufficient particularity to direct the searcher, to confine
       his examination to the place described, and to advise those being
       searched of his authority. An erroneous description of premises to be
       3
           The physical description provided in the initial search warrant read in pertinent part: “a
light colored mobile home trimmed in red with a wooden front porch.” The warrant further
instructed “as you turn and go up the driveway, it is the third mobile home on the left” and that
“the unique feature of the trailer that clearly distinguished it from all other mobile homes on the
lot – there was an aggressive pit bull chained to the wooden porch.”


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       searched does not necessarily render a warrant invalid. The Fourth
       Amendment requires only that the search warrant describe the
       premises in such a way that the searching officer may with reasonable
       effort ascertain and identify the place intended.


784 F.2d at 1092 (internal quotation marks omitted) (quoting United States v.

Weinstein, 762 F.2d 1522, 1532 (11th Cir.1985) (finding search warrant’s

erroneous description − southwest versus northwest corner of building − did not

invalidate warrant under particularity requirement). In Burke, the search warrant

at issue included the wrong street address and building number, yet contained the

correct apartment number as well as a physical description of the building. 784

F.2d at 1092. The Burke panel held that the search warrant described the premises

to be searched with sufficient particularity given 1) the detailed physical

description within the warrant; and 2) because the officer who had visited the

premises with the confidential informant prior to seeking the warrant pointed out

the exact location to the officer tasked with executing the warrant. Id. at

1092−1093.       Under these circumstances, the warrant was sufficiently particular

“to direct the officers to the correct apartment, to confine the officers’ examination

to that apartment, and to place the occupants on sufficient notice of the officers’

authority to search the premises.”4 Id., 784 F.2d at 1093.


       4
           Harbison doesn’t appear to challenge the scope of the officers’ search or to contend
that the search warrant failed to provide sufficient notice of the officer’s authority to search.


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      Like Burke, the physical description of the target residence, as well as law

enforcement’s familiarity with the property based on surveillance, puts to rest

Harbison’s contention that the officers did not have sufficiently particular

information. Here, prior to execution of the original search warrant, Narcotics

Investigators Mark Harrell and Clint Lee briefed the Prattville Police Department’s

SWAT Team, whose members were tasked with executing the warrant. Harrell

and Lee had participated in all phases of the investigation, including the

surveillance, and were familiar with the target trailer. Harrell and Lee even drove

the SWAT Team to 1563 Highway 14 West and directed SWAT where to go. As

Harbison’s appellate counsel conceded during argument, the search warrant in this

case is properly upheld as sufficiently particular.

      B. Motion For Mistrial

      We next consider whether Harbison’s motion for mistrial pursuant to an

alleged violation of Fed. R. Crim. P. 16(a)(1)(A) was properly denied by the

district court. We review the district court’s denial of a motion for mistrial for an

abuse of discretion. See United States v. Perez-Oliveros, 479 F.3d 779, 782 (11th

Cir. 2007); United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985) (citing

Fed. R. Crim. P. 33; United States v. Russo, 717 F.2d 545, 550 (11th Cir. 1983)).

      Testifying about the circumstances surrounding execution of the second

search warrant, Investigator Clint Lee stated, “[w]hile we were outside discussing


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among the investigators whether we were going to arrest Mr. Harbison that day or

seek a warrant at a later time, [Harbison] piped up and said, y’all can’t make

nothing stick on me.” Harbison’s counsel moved for a mistrial at the conclusion of

Investigator Lee’s testimony and argued that nondisclosure violated Rule 16 and

prejudiced Harbison. The motion was denied. 5

       Because Harbison’s oral statement was not subject to the mandatory pretrial

disclosure requirements within Rule 16(a)(1)(A), there was no discovery violation

and no abuse of discretion by the trial judge. Rule 16(a), which governs the

Government’s obligation to disclose information to the Defendant, reads in

pertinent part:

       (1) Information Subject to Disclosure.
              (A) Defendant’s Oral Statement. Upon a defendant’s request,
       the government must disclose to the defendant the substance of any
       relevant oral statement made by the defendant, before or after arrest,
       in response to interrogation by a person the defendant knew was a
       government agent if the government intends to use the statement at
       trial.


Fed. R. Crim. P. 16(a)(1)(A). The Government’s duty to disclose an oral statement

made by the Defendant is triggered by the following: 1) the oral statement is made

in response to interrogation by a person Defendant knew was a government agent;



       5
           Trial counsel failed to request any less drastic sanction or propose any curative
instruction be given to the jury following Lee’s testimony. In addition, when the motion for
mistrial was denied, defense counsel failed to pursue the matter further.

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and 2) the Government intends to use the statement at trial. Id. Under Rule 16, the

following is not subject to disclosure:

              Except as Rule 16(a)(1) provides otherwise, this rule does not
       authorize the discovery or inspection of reports, memoranda, or other
       internal government documents made by an attorney for the
       government or other government agent in connection with
       investigating or prosecuting the case. Nor does this rule authorize the
       discovery or inspection of statements made by prospective
       government witnesses except as provided in 18 U.S.C. § 3500.

Fed. R. Crim. P. 16(a)(2).6 Lee had no written notes documenting the alleged

statement but reportedly informed the Government about the statement at least two

weeks before trial. The Government’s obligation to disclose discoverable material

is a continuing duty. Fed. R. Crim. P. 16(c).

       We conclude that Rule 16 did not require disclosure of Harbison’s statement

because the statement was made voluntarily and spontaneously as opposed to being

elicited by law enforcement during interrogation. See, e.g., United States v. Taylor,

417 F.3d 1176, 1181 (11th Cir. 2005) (per curiam) (no discovery violation under

Rule 16(a)(1)(A) given that defendant’s statement was not made during

interrogation by government agent); United States v. Bailey, 123 F.3d 1381, 1399

(11th Cir. 1997) (same). Lee testified that Harbison’s statement was spontaneous,
       6
          In addition to the federal rule, the Middle District of Alabama has adopted a Local
Criminal Rule 16.1 that eliminates the need for a defendant to request disclosure or file a motion
to that end. See M.D. Ala. L.R. 16.1. The local rule simply incorporates the federal rule while
attempting to build in certain efficiencies. Despite disagreement at trial, the Government
concedes on appeal that Harbison was not required to make a formal request for disclosure of
any statements under Local Rule 16.1.


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that Harbison appeared to be directing this response to the other officers, and that

he had not posed any questions to Harbison prior to the statement.

       Moreover, even if the statement fell within Rule 16(a)(1)(A), Harbison is

unable to show the requisite prejudice or that granting a mistrial would have been

the most appropriate remedy. 7 In considering the denial of a motion for mistrial

for a different alleged violation of Rule 16, we stated:

              Violations of Rule 16 will result in a reversal of conviction only
       if such a violation prejudices a defendant’s substantial rights. In
       determining the proper remedy for the government’s violation of
       discovery rules, the Court must consider how the violation affected
       the defendant’s ability to present a defense. Furthermore, where it is
       apparent . . . that [the] defense strategy may have been determined by
       the failure to [disclose], there should be a new trial. In other words,
       actual prejudice must be shown.


United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir.1999) (alterations in

original) (internal citations and quotation marks omitted) (trial judge did not abuse

discretion in denying defendant’s motion for mistrial for purported discovery



       7
           Rule 16 speaks to the types of sanctions available in the event of a violation:

                 (2) Failure to Comply. If a party fails to comply with this rule, the court
       may:
                 (A) order that party to permit the discovery or inspection; specify its time,
                 place, and manner; and prescribe other just terms and conditions;
                 (B) grant a continuance;
                 (C) prohibit that party from introducing the undisclosed evidence; or
                 (D) enter any other order that is just under the circumstances.

Fed. R. Crim. P. 16(d)(2).

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violation where defendant was unable to show that failure to disclose existence of

expert adversely affected ability to present a defense).

      As for prejudice to the Defendant, the statement that purportedly came as a

surprise to defense counsel was Harbison’s own statement. More importantly,

defense counsel had the opportunity to cross-examine Lee and ask in the jury’s

presence whether the “y’all can’t make nuthin’ stick” statement could have been

made by someone who felt he was being wrongly accused. In terms of impact on

Harbison’s defense, trial counsel contended that the Government’s nondisclosure

prevented him from interviewing Lee’s counterpart, Investigator Harrell, to test

Lee’s testimony against Harrell’s memory and recollection.         No other prejudice

was asserted.   Similarly, there was no objection to the prosecution’s opening

statement when the statement was first mentioned in the presence of the jury,

which tends to show that defense counsel either knew about the statement or did

not consider it significantly damaging or prejudicial.

      We further note that the Government presented overwhelming independent

evidence of Harbison’s guilt. See, e.g., United States v. Capers, 708 F.3d 1286,

1298 (11th Cir. 2013) (government’s failure to comply with Standing Order on

Discovery may be rendered harmless where there is substantial independent

evidence of guilt), petitions for cert. filed, May 15 & June 3, 2013 (Nos. 12-

10378, 12-10635). For this reason, we find that Harbison is unable to show actual


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prejudice and any error with respect to admission of Defendant’s statement was

harmless.

                                               II.

      With respect to his sentence, Harbison contends that four different guideline

enhancements were improperly applied. We review the district court’s findings of

facts supporting an enhancement for clear error, and the application of the

Sentencing Guidelines to those facts de novo. 8 United States v. Pham, 463 F.3d

1239, 1245 (11th Cir. 2006) (per curiam). “When a defendant objects to a factual

finding that is to be used as a basis for sentencing, the government bears the

burden to establish the disputed fact by a preponderance of the evidence.” United

States v. Agis-Meza, 99 F.3d 1052, 1055 (11th Cir. 1996).                        Although the

preponderance standard is a relaxed evidentiary standard, it “does not grant the

court a license to sentence a defendant in the absence of sufficient evidence.” Id.

We first take up those sentencing matters Harbison’s counsel advanced most

forcefully during argument.

      A.      Drug Premises Enhancement

      Harbison argues that the imposition of the Section 2D1.1(b)(12) “drug

premises” enhancement constituted impermissible double-counting in light of his




      8
          The 2011 version of the United States Sentencing Guidelines was applied in this case.

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conviction under 21 U.S.C. § 856(a)(1) based upon the same underlying conduct. 9

       Effective November 1, 2010, the Guidelines provide for application of a

two-level enhancement for maintaining a premises for the purpose of

manufacturing or distributing a controlled substance. U.S.S.G. § 2D1.1(b)(12) &

App. C. Amend. 748 (2010). Our circuit has not yet had an opportunity to consider

application of this enhancement in conjunction with a conviction under §

856(a)(1).

       On this record, we conclude that Harbison’s § 2D1.1(b)(12) challenge is

without merit. “Impermissible double counting occurs only when one part of the

Guidelines is applied to increase a defendant’s punishment on account of a kind of

harm that has already been fully accounted for by application of another part of the

Guidelines.” United States v. Matos-Rodriguez, 188 F.3d 1300, 1309−10 (11th

Cir. 1999) (“Double counting during sentencing is permissible if the Sentencing

Commission intended the result, and if the result is permissible because each

section concerns conceptually separate notions related to sentencing.”).

       Under § 2D1.1, Harbison’s base offense level was determined pursuant to

his offense conduct relating to the convictions for possession of crack cocaine with

the intent to distribute, and conspiracy to do the same – not conspiracy to maintain

       9
         Defendant does not challenge the evidentiary basis for the enhancement. Even so, the
Government asserts that because the only issue argued below was double-counting, any other
alleged error is before us for plain error review only. See United States v. Aguillard, 217 F.3d
1319, 1321 (11th Cir. 2000).

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a premises for this purpose. U.S.S.G. § 2D1.1.10                Pursuant to the Guidelines,

where multiple offenses are grouped together, the defendant’s base offense level is

determined by the offense guideline that produces the highest offense level.

U.S.S.G. § 3D1.3. Due to § 3D1.3 grouping, Harbison’s base offense level was

driven by the quantity of cocaine involved rather than the maintaining a premises

offense. Id.

       Impermissible double-counting only occurs when two Guideline provisions

account for the same offense conduct. Here, absent the § 2D1.1(b)(12)

enhancement, Harbison’s guideline calculation did not reflect or account for the

various additional harms associated with Harbison’s use of his residence to

manufacture or distribute drugs.11           During oral argument, Harbison’s counsel

conceded that the statutory and guideline harms are, in fact, distinct. Accordingly,

we find that it did not constitute impermissible double-counting for the district

court to apply § 2D1.1(b)(12).12

       10
          Section 2D1.1 sets the applicable base offense level for defendants convicted under 21
U.S.C. § 841. In contrast, if Harbison’s offense level had been calculated based on his conviction
for conspiracy to maintain a premises for the manufacturing of crack cocaine, under 21 U.S.C.
§ 856(a), § 2D1.8 would have applied.
       11
            A specific harm identified by the government during oral argument included a greater
ability to conceal the drug business by operating from a residence.
       12
           Although instructive as to evidentiary matters pertaining to § 2D1.1(b)(12), the
supplemental authority cited by the Government does not present the precise legal issue here in
that neither case considers application of the premises enhancement along with an underlying §
856 maintaining a premises conviction. See, e.g., United States v. Miller, 698 F.3d 699, 702 (8th
Cir. 2012), cert. denied, 133 S.Ct. 1296 (2013); United States v. Sanchez, 710 F.3d 724, 729−32

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       B. Vulnerable Victim Enhancement

       Harbison also argues that there was not a sufficient evidentiary basis for the

court to enhance based upon the existence of a “vulnerable victim” pursuant to §§

2D1.1(e)(1) and 3A1.1(b)(1).

       The district court’s application of § 3A1.1 presents a mixed question of law

and fact, which we review de novo. United States v. Arguedas, 86 F.3d 1054, 1057

(11th Cir. 1996). “The district court’s determination of a victim’s ‘vulnerability’

is, however, essentially a factual finding to which we give due deference.” Id.

Likewise, we afford “great deference” to the district court’s credibility

determinations at sentencing. United States v. Gregg, 179 F.3d 1312, 1316 (11th

Cir. 1999).

       Where a defendant committed, or attempted to commit, a sexual offense

against another individual by distributing, with or without that individual’s

knowledge, a controlled substance to that individual, an enhancement under

' 3A1.1(b)(1) must be imposed by the sentencing court, subject to an exception not

applicable in the instant case.13 See U.S.S.G. § 2D1.1(e)(1).



(7th Cir. 2013) (rejecting defendant’s constitutional challenge to application of § 2D1.1(b)(12)
based upon Ex Post Facto Clause).
       13
          Commentary to the Guidelines provides that “sexual offense” means “sexual act” or
“sexual contact” as defined in 18 U.S.C. §§ 2246(2) and (3). U.S.S.G. § 2D1.1(e)(1) cmt. n.21
(A).


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      In turn, § 3A1.1(b)(1) requires that, where “the defendant knew or should

have known that a victim of the offense was a vulnerable victim,” a two-level

enhancement is warranted.       U.S.S.G. § 3A1.1(b)(1).      For purposes of the

vulnerable victim enhancement, a “vulnerable victim” means a person who (i) is a

victim of the offense of conviction or other relevant conduct, and who (ii) is

“unusually vulnerable due to age, physical or mental condition, or who is

otherwise particularly susceptible to the criminal conduct.” Id. § 3A1.1 cmt. n.2.

      We have previously held that, where the defendant provided drugs to a

minor victim, whom the defendant knew suffered from a drug addiction, the

sentencing court properly imposed a two-level vulnerable victim enhancement.

See United States v. Amedeo, 370 F.3d 1305, 1317−18 (11th Cir. 2004) (district

court’s determination regarding application of § 3A1.1 is a factual finding subject

to clear error review). Amedeo teaches that in determining whether a § 3A1.1

vulnerable victim enhancement is applicable, it is appropriate to consider: 1) the

victim’s history of drug use and / or drug addiction; 2) the defendant’s awareness

of the victim’s drug addiction; and 3) the victim’s age. Id., 370 F.3d at 1317−18.

      During oral argument, Harbison’s counsel argued that the vulnerable victim

enhancement is intended to apply, and does so typically, in the fraud context.

Counsel suggested that the enhancement is properly applied in fraud cases where a

vulnerable victim such as an elderly, disabled, or handicapped person is targeted

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for perpetration of a fraud. While we do not dispute that § 3A1.1 applies in such

circumstances, counsel is unable to distinguish application of § 3A1.1 in Amedeo,

a drug distribution offense, from the instant case. Moreover, we note that other

circuit courts of appeal have contemplated application of § 3A1.1 in arriving at

sentences stemming from convictions for obtaining forced labor and for coercion

and enticement of a minor where the victim is uniquely vulnerable as compared to

the typical victim of such an offense. See, e.g., United States v. Calimlim, 538

F.3d 706, 716−17 (7th Cir. 2008) (upholding § 3A1.1 enhancement with

conviction for obtaining forced labor); United States v. Nielsen, 694 F.3d 1032,

1035−37 (9th Cir. 2012) (remanding on § 3A1.1 enhancement in context of

conviction for coercion and enticement of minor where district court did not

identify a specific factor that made the victim uniquely vulnerable; expressly

stating that the decision does not preclude application of § 3A1.1 in other coercion

and enticement cases).

      Counsel next argued, without reference to any authority, that a victim’s

voluntary use of a controlled substance necessarily weighed against application of

the enhancement. We reject this position as well. Section 2D1.1(e)(1) of the

Guidelines contemplates that application of the vulnerable victim enhancement is

appropriate where a controlled substance is made available (distributed) to the




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intended victim of a sexual offense with or without the victim’s knowledge. See

U.S.S.G. § 2D1.1(e)(1).

       The district court’s factual findings concerning application of § 3A1.1(b)(1)

are not clearly erroneous. Here, the district court properly found that (1) the

female victim smoked crack cocaine, whether voluntary or involuntarily;

(2) Harbison committed a sexual offense against her; and (3) she was especially

vulnerable, given her age, the age difference between the victim and Harbison, and

the victim’s drug-induced impairment. Harbison essentially asks for a re-weighing

of the evidence, arguing that testimony of witnesses he proffered contradicted the

victim’s written statements and, therefore, preclude application of the

enhancement. 14 However, we afford deference to the district court’s weighing of

the conflicting evidence in the first instance, and we note that the court was

entirely reasonable in crediting the medical report, which documented extensive

injuries consistent with sexual assault.            In fact, Harbison did not dispute at

sentencing the notion that the sexual acts committed were not consensual.

Harbison instead posited that the preponderance of the evidence did not establish

that Harbison was the perpetrator of a sexual assault. The district court was within

its perogative and did not err in applying the enhancement.

       14
           The victim did not testify at sentencing. However, according to the representations of
the Government and the sentencing judge, the medical evidence presented concerning the
victim’s physical condition following the assault was presented as showing conclusively that
there was non-consensual sexual contact.

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      C. Firearm Enhancement

      Next, Harbison argues that the district court erred in applying the firearm

enhancement because, after three thorough searches of his home, a firearm was

never found.

      Under § 2D1.1(b)(1), a defendant’s offense level increases by two levels

“[i]f a dangerous weapon (including a firearm) was possessed” in connection with

a drug offense. U.S.S.G. § 2D1.1(b)(1). This two-level increase applies “if the

weapon was present, unless it is clearly improbable that the weapon was connected

with the offense.” Id. § 2D1.1, n. 11 (A).

      The government must show that “the firearm was present at the site of the

charged conduct” or that “the defendant possessed a firearm during conduct

associated with the offense of conviction.” United States v. Stallings, 463 F.3d

1218, 1220 (11th Cir. 2006).       Once the government meets this burden, the

evidentiary burden shifts to the defendant to demonstrate that a connection

between the weapon and the offense was “clearly improbable.” Id.

      The government need not introduce evidence that a firearm was ever

physically found in order to meet its initial burden. See United States v. Audain,

254 F.3d 1286, 1289 (11th Cir. 2001) (§ 2D1.1 enhancement supported by a

preponderance of the evidence where government witness testified that defendant

carried a firearm and defendant did not attempt to discredit the witness’s


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testimony).    Instead, circumstantial evidence may prove that the defendant

possessed a firearm in connection with his offense. Id.

      Here, although Harbison’s home was searched on three occasions and a

firearm was never found, it was not clear error for the court to find that the

enhancement applied, given that: (1) his codefendant, Curtis Lamar Powell, who

lived at Harbison’s home while he committed the instant offenses, told police that

he saw a black and silver firearm in the home during that time; (2) a separate

source told police that there were weapons inside of the home; (3) police found a

magazine and ammunition in the home that were generally consistent with the

codefendant’s description of the firearm; and (4) the magazine and ammunition

were found in Harbison’s bedroom specifically.

      Given the district court’s finding that Harbison possessed the firearm, the

burden then shifted to Harbison to show that it was clearly improbable that the

firearm was connected to his offenses. Harbison did not present any evidence or

arguments below to support such a finding.

      D. Aggravating Role Enhancement

      Harbison also argues that the district court’s application of the aggravating

role enhancement was not supported by a preponderance of the evidence.

      Pursuant to § 3B1.1(c), the sentencing court must apply a two-level

enhancement where the defendant was an organizer, leader, manager, or supervisor


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in a sufficiently extensive drug conspiracy.      U.S.S.G. § 3B1.1(c).     Although

fronting drugs to another does not automatically make a defendant a supervisor,

“the assertion of control or influence over only one individual is enough to support

a § 3B1.1(c) enhancement.” United States v. Jiminez, 224 F.3d 1243, 1251 (11th

Cir. 2000) (upholding the enhancement where a co-conspirator had to consult with

the defendant before agreeing to sell drugs).

      Here, it was not clearly erroneous for the sentencing court to find that

Harbison was an organizer, leader, or manager in relation to his offense conduct.

Contrary to Harbison’s argument on appeal, he more than merely fronted drugs to

others. His codefendant, Curtis Powell, testified at trial that: (1) Harbison was the

sole provider of crack cocaine to him; (2) he sold the drugs out of Harbison’s home

at Harbison’s direction; and (3) he used Harbison’s customers at first until he

developed his own, but continued to give proceeds of the sales back to Harbison.

At several intervals of his testimony at trial, Powell indicated that he assisted

Harbison in the sale of drugs and that Harbison directed the sales.

      D. Harmless Error

      Finally, the sentencing judge explicitly stated that he would have imposed

the same sentence notwithstanding Harbison’s challenge to the various

enhancements. In explaining the reasonableness of the 180 month sentence, the

sentencing judge stated he would so find “irrespective of whether [Harbison’s]


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guideline range fell within 151 to 188 months,” and that given the evidence

presented, “frankly, [he] would have varied up to [180 months] had [he] sustained

some of [Harbison’s] objections.”    For this reason, any misapplication of the

enhancement(s) was harmless error at best. See United States v. Keene, 470 F.3d

1347, 1350      (11th Cir. 2006) (otherwise reasonable sentence upheld despite

possible misapplication of § 2B3.1(b)(2)(F) enhancement where district court had

already stated it would impose exactly the same sentence absent application of the

enhancement).

      AFFIRMED.




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