                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              March 26, 2008
                              No. 07-10709                  THOMAS K. KAHN
                          Non-Argument Calendar                  CLERK
                        ________________________

                     D.C. Docket No. 06-14030-CR-DLG

UNITED STATES OF AMERICA,


                                                                Plaintiff–Appellee,

                                    versus

AUGUSTIN OLIVIER,

                                                          Defendant–Appellant.


                        ________________________

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

                              (March 26, 2008)

Before BARKETT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

     Augustin Olivier appeals his convictions and 151-month sentences for
(1) conspiracy to possess, with the intent to distribute, 50 grams or more of a

mixture or substance containing a detectable amount of cocaine base, and a

mixture or substance containing a detectable amount of cocaine hydrochloride, in

violation of 21 U.S.C. § 846; and (2) possession, with intent to distribute, 50 grams

or more of a mixture or substance containing a detectable amount of cocaine base,

in violation of 21 U.S.C. § 841(a)(1).

      On appeal, Olivier makes three arguments. First, he argues that the district

court erred by not sua sponte severing his and a codefendant’s trials, pursuant to

Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968),

when the government impeached the codefendant with her post-arrest statements,

which also implicated him in the crime. Second, Olivier maintains that the

evidence was insufficient to support his conviction. Finally, Oliver asserts that the

district court clearly erred in applying a two-level enhancement, pursuant to

U.S.S.G. § 2D1.1(b)(1), because he did not possess the firearm discovered by law

enforcement officers in connection with the crime.

                                    I. Severance

      Ordinarily, we review a district court’s Bruton rulings for an abuse of

discretion, and subject “improperly admitted Bruton evidence to review for

harmlessness beyond a reasonable doubt.” United States v. Turner, 474 F.3d 1265,



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1275 (11th Cir. 2007), pet. for cert. filed, (U.S. June 5, 2007) (No. 07-5686).

However, if a defendant fails to raise a contemporaneous Bruton objection, the

review is for plain error. See id. For us to correct an error under plain error

review, there must be “(1) error, (2) that is plain and (3) that affects substantial

rights. If all three conditions are met, [we] may then exercise . . . discretion to

notice a forfeited error, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at 1276.

       In Bruton, the Supreme Court held that a defendant’s Sixth Amendment

right of confrontation was violated by the admission of a codefendant’s

“powerfully incriminating extrajudicial statement,” and a district court’s

instruction that the jury only consider the confession against the codefendant does

not cure the violation. Bruton, 391 U.S. at 135-36, 88 S.Ct. at 1627-28. However,

in Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), the

Supreme Court held that, as long as the codefendant is subject to cross-

examination, there is no Confrontation Clause issue. Nelson, 402 U.S. at 627, 629-

30, 91 S.Ct. at 1726-27; see also United States v. Arias-Izquierdo, 449 F.3d 1168,

1184-85 (11th Cir. 2006), cert. denied, 127 S.Ct. 521 (2006); United States v.

Clemons, 32 F.3d 1504, 1510-11 (11th Cir. 1994).

       In Arias-Izquierdo, the district court denied a defendant’s motion for



                                             3
severance following a law enforcement officer’s testimony that a codefendant, in

post-arrest statements, informed officers that he had planned the crime and

recruited “the other five.” Arias-Izquierdo, 449 F.3d at 1184. We held that the

district court did not err in denying the motion because the codefendant testified at

trial and was available for cross-examination. Id. at 1185. Likewise, in this case

the codefendant was available for cross-examination, and thus, the district court

did not plainly err by not severing Olivier’s and a codefendant’s trials.

                          II. Sufficiency of the Evidence

      “We review the sufficiency of the evidence de novo, viewing the evidence in

the light most favorable to the government.” United States v. Garcia, 405 F.3d

1260, 1269 (11th Cir. 2005). A defendant’s conviction must be affirmed unless a

jury could not, under a reasonable construction of the evidence, have found him

guilty beyond a reasonable doubt. Id. “All reasonable inferences and credibility

choices must be made in favor of the government and the jury’s verdict.” Id.

“When a defendant does not move the district court for a judgment of acquittal at

the close of the evidence, we may reverse the conviction only to prevent a manifest

miscarriage of justice.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.

2002). “This standard requires the appellate court to find that the evidence on a

key element of the offense is so tenuous that a conviction would be shocking.” Id.



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      “To sustain a conviction for conspiracy to possess cocaine with intent to

distribute, the government must prove beyond a reasonable doubt that (1) an illegal

agreement existed; (2) the defendant knew of it; and (3) the defendant, with

knowledge, voluntarily joined it.” United States v. Hernandez, 433 F.3d 1328,

1333 (11th Cir. 2005), cert. denied, 547 U.S. 1047, 126 S.Ct. 1635 (2006). The

agreement forming the basis of the conspiracy can be proved “by circumstantial

evidence, through ‘inferences from the conduct of the alleged participants or from

circumstantial evidence of a scheme.’” United States v. Obregon, 893 F.2d 1307,

1311 (11th Cir. 1990) (citation omitted). A jury may infer a defendant’s

participation in a conspiracy from the circumstance. Hernandez, 433 F.3d at 1333.

However, mere presence is insufficient to support a conviction for conspiracy, but

the jury is permitted to consider presence as a probative factor in determining

whether the defendant knowingly and intentionally participated in a criminal

scheme. Id.

      “To sustain a conviction for possession of a controlled substance with intent

to distribute, the government must show that a defendant knowingly possessed the

controlled substance with the intent to distribute it,” and possession may be proved

through either actual or constructive possession. Id. “Constructive possession

exists when a defendant has ownership, dominion, or control over an object itself



                                          5
or dominion or control over the premises or the vehicle in which the object is

concealed. Intent to distribute may be inferred from the amount of [the drug]

involved.” Id. (internal citation omitted) (alteration in original).

      Based on this record, we find sufficient evidence to support Olivier’s

convictions. Although Olivier denied any involvement, the jury was entitled to

disbelieve him and sufficient evidence supported the conclusion that he was a

knowing and voluntary participant in supplying an undercover informant a total of

111.1 grams of crack cocaine.

                             III. U.S.S.G. § 2D1.1(b)(1)

      We review a district court’s factual findings for clear error, and the

application of the guidelines to those facts de novo. United States v. Pham, 463

F.3d 1239, 1245 (11th Cir. 2006). A factual finding is clearly erroneous when we

are “left with a definite and firm conviction that a mistake has been committed”

after we review all of the evidence. United States v. Rodriguez-Lopez, 363 F.3d

1134, 1137 (11th Cir. 2004).

      The guidelines call for a two-level enchantment “[i]f a dangerous weapon

(including a firearm) was possessed” during a drug offense. U.S.S.G.

§ 2D1.1(b)(1). Application Note 3 of the provision provides that “[t]he adjustment

should be applied if the weapon was present, unless it is clearly improbable that the



                                            6
weapon was connected with the offense. For example, the enhancement would not

be applied if the defendant, arrested at his residence, had an unloaded hunting rifle

in the closet.” Id. § 2D1.1, cmt. (n.3). The government has the burden under

§ 2D1.1(b)(1) to demonstrate the proximity of the firearm to the site of the charged

offense by a preponderance of the evidence. United States v. Hall, 46 F.3d 62, 63

(11th Cir. 1995). If the government is successful, “the evidentiary burden shifts to

the defendant to show that a connection between the firearm and the offense is

clearly improbable.” Id.

      In Hall, the defendant pled guilty to conspiracy to commit a drug offense,

and the district court increased his level by two, pursuant to § 2D1.1(b)(1), based

on the fact that law enforcement officers found “a set of scales, a ziplock back with

cocaine residue, a purse containing $12,000, and a .357 Smith & Wesson handgun

placed in a dresser drawer next to an undetermined amount of cash” in his home.

Id. at 62-63. Additionally, there was no evidence, other than the discovery of the

handgun, suggesting that it actually had been used in the commission of the

offense. Id. at 63. We affirmed, holding that the district court’s finding that the

§ 2D1.1(b)(1) enhancement was applicable was not clearly erroneous because the

weapon was found in the home, where part of the conspiracy occurred, was in

close proximity to the drug-related, and the defendant presented no evidence to



                                           7
show it was clearly improbable that the firearm was not connected to the crime.

See id. at 64.

       Here, the district court did not clearly err in applying a two-level

enhancement for possession of a dangerous weapon because the firearm was found

at the residence of the charged offense, a codefendant identified the weapon as

Olivier’s and Olivier did not establish that the connection between the weapon and

offense was “clearly improbable.”

       Upon review of the record and consideration of the parties’ briefs, we

discern no reversible error.

       AFFIRMED.




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