          Case: 11-10327   Date Filed: 08/13/2012   Page: 1 of 14

                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 11-10327
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:10-cr-00127-CG-C-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                 versus

RUSSELL LOUIS TATUM, JR.,



                                                         Defendant-Appellant.

                     ________________________

               Appeal from the United States District Court
                  for the Southern District of Alabama
                      ________________________

                           (August 13, 2012)
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Before HULL, WILSON and BLACK, Circuit Judges.

PER CURIAM:

      After a jury trial, Defendant Russell Tatum, Jr., appeals his convictions and

120-month concurrent sentences for (1) possession with intent to distribute 157

grams of powder cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 1), and (2)

possession with intent to distribute 18.2 grams of crack cocaine, in violation of 21

U.S.C. § 841(a)(1). On appeal, Tatum challenges the sufficiency of the evidence

to support his convictions and the district court’s application of a dangerous

weapon enhancement at sentencing. Tatum also contends that the district court

erred when it refused to apply the penalty provisions in 21 U.S.C. § 841(b) as

amended by the Fair Sentencing Act (“FSA”). After review, we affirm Tatum’s

convictions and the dangerous weapon enhancement, but vacate and remand for

resentencing in light of Dorsey v. United States, ____ U.S. ____, 132 S. Ct. 2321

(2012).

                               I. BACKGROUND

      At trial, the following evidence was presented.

A.    Search of 2472 Bragdon Avenue House

      Police investigated drug activity at a house on 2472 Bragdon Avenue in

Mobile, Alabama. On March 30, 2010, four Mobile County Deputy Sheriffs–John

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Thornton, John McLain, Jeffery Sullivan, and Steve Leger–attempted a controlled

buy from Defendant Tatum through a confidential informant (“CI”). The deputies’

CI was to stop by the Bragdon Avenue house while under surveillance by the four

deputies.

       The CI went to and entered the Bragdon Avenue house while the deputies

watched from the street inside their vehicles. While the CI was inside the Bragdon

Avenue house, an unknown vehicle stopped in front of the house. Defendant

Tatum came out of the house to speak with the two men who emerged from the

vehicle.

       The deputies then exited their vehicles and approached Defendant Tatum

and the other two men. The deputies announced that they were sheriff’s deputies

with a search warrant.1 When Deputy McLain approached Defendant Tatum,

Tatum put his hand into his sweatshirt. The deputies ordered Tatum and the other

two men to the ground.2 Deputy Thornton went into the Bragdon Avenue house to

ensure no one else was there.

       Meanwhile, Deputy McLain searched Defendant Tatum and removed a clear


       1
        As a result of their investigation, the deputies already had a search warrant for the house,
which they planned to execute during the course of the controlled buy.
       2
       At this point, the CI, who had remained inside the house, left through a side door and
was secured by a fifth deputy.

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plastic bag containing 27.31 grams of powder cocaine3 from Tatum’s sweatshirt

pocket and some currency. Deputy McLain dropped the bag and currency on the

ground. Tatum was not armed.

       After Deputy Thornton checked the inside of the house, he returned outside

and searched Defendant Tatum himself. Deputy Thornton found 1.73 grams of

crack cocaine and more currency in Tatum’s pants pockets, including $880 in

prerecorded bills given to the CI to make the controlled buy. Additionally, Deputy

Thornton found a pistol permit in Tatum’s wallet. The address on the permit was

2472 Bragdon Avenue, and the expiration date was September 17, 2010. Deputy

Thornton testified that a pistol permit is good for one year in Mobile County.

After Deputy Thornton searched Defendant Tatum, Tatum stated, “Anything you

find in the residence belongs to me.”

       Deputy Thornton went back inside the Bragdon Avenue house to search it.

In the kitchen, Deputy Thornton found powder cocaine, two crack cocaine

“cookies,” and a baking soda box on the kitchen counter. The kitchen had a

microwave, which tested positive for cocaine residue in a field test. Deputy

Thornton explained that crack cocaine can be manufactured by combining powder


       3
        On direct examination, Deputy McLain testified that the bag contained crack cocaine.
On cross examination, however, Deputy McLain clarified that the bag contained powder cocaine,
not crack cocaine.

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cocaine and baking soda in a microwave and that crack cocaine is normally

“cooked” in a Pyrex glass or a cup, making it resemble a cookie. According to

Deputy Thornton, the two cookies of crack cocaine were sitting on a napkin on the

counter to dry.

       In a bedroom closet, Deputy Thornton found a shoe box that contained

digital scales, a marijuana grinder, a small amount of marijuana,4 $1,000 in

currency and some prepackaged cocaine. The shoe box also contained a bag with

some Lortab pills. Next to the shoe box was another set of scales, another

marijuana grinder, a Pyrex cup and a box of sandwich bags. Deputy Thornton

testified that in his experience as a narcotics investigator, scales are often

employed to measure out cocaine, and sandwich bags are used for packaging

illegal narcotics.

       Deputy Thornton also discovered in the closet a bulletproof vest and neck

collar, a “rifle-type gun,” and a suitcase that had a tag marked “Tatum/Russell.”

Deputy Sullivan also found a vehicle registration and college application in

Defendant Tatum’s name, both listing the 2472 Bragdon Avenue address. The

vehicle registration was dated February 25, 1999, and the college application was


       4
         Deputy Thornton did not submit the marijuana for forensic examination. However, he
testified that based on his experience as a narcotics investigator, he recognized the material as
marijuana.

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dated May 22, 1998. The deputies found four guns in the bedroom: a Remington

shotgun and a Browning scoped rifle, both in cases, and a pistol grip shotgun and

a black and silver shotgun hidden under the mattress. Subsequent testing by the

Alabama Department of Forensic Science indicated that the deputies recovered

233.89 grams of powder cocaine and 27.56 grams of crack cocaine during the

search.

      The defense called Willie Pettway, Defendant Tatum’s stepfather. Pettway

testified that he owned the house on Bragdon Avenue and that Defendant Tatum

had never lived there. Instead, Pettway maintained that, at the time of the search,

Tatum lived on Tucker Street.

      At the close of the evidence, the district court denied Tatum’s renewed

motion for a judgment of acquittal. The jury convicted Tatum on both counts and

found that Tatum’s offense in Count 2 involved five grams or more of crack

cocaine.

B.    Presentence Investigation Report

      The presentence investigation report (“PSI”) calculated Defendant Tatum’s

advisory guidelines range using the pre-FSA November 2010 Sentencing

Guidelines Manual. The PSI assigned an offense level of 26 based on the 233.89

grams of cocaine powder and 27.56 grams of crack cocaine involved in the

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offenses. See U.S.S.G. § 2D1.1(c)(7). The PSI increased Tatum’s offense level by

two levels for possession of a dangerous weapon, pursuant to U.S.S.G.

§ 2D1.1(b)(1), and by two levels for obstruction of justice, pursuant to U.S.S.G.

§ 3C1.1, for a total offense level of 30.

       The PSI assigned Tatum a criminal history category of I. The PSI listed

Tatum’s prior Alabama drug conviction, but assigned no criminal history points

for that conviction. Specifically, in 1998, Tatum pled guilty in Alabama state

court to second degree marijuana possession and was given a one-year suspended

sentence. With Tatum’s total offense level of 30 and criminal history category of

I, the PSI initially calculated Tatum’s advisory guidelines range as 97 to 121

months’ imprisonment.

       Later on, the PSI concluded that crack cocaine offense in Count 2 carried a

ten-year mandatory minimum sentence. If a defendant’s § 841(a) offense involved

5 or more grams of crack cocaine and the defendant had a prior felony drug

conviction, he was subject to a ten-year mandatory minimum sentence. See 21

U.S.C. § 841(b)(1)(B)(iii) (2006). The PSI stated that Tatum’s advisory guidelines

range was 120 to 121 months, pursuant to U.S.S.G. § 5G1.1.5 Tatum’s Alabama



       5
         The PSI further stated that the statutory maximum was 30 years’ imprisonment for Count
1 and life imprisonment for Count 2. See 21 U.S.C. § 841(b)(1)(B)(iii), (C) (2006).

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drug conviction was the basis for the PSI’s conclusion that, as to Count 2, Tatum

was subject to the ten-year mandatory minimum under 21 U.S.C. § 841(b)(1)(B).

      Defendant Tatum’s written objection to the PSI did not dispute the PSI’s

factual allegations. Tatum did object to the PSI’s two-level increase for

possession of a dangerous weapon. Tatum argued that he did not possess a

weapon at the time of his arrest, and that the weapons found in the Bragdon

Avenue house were hunting weapons.

      Further, Tatum argued that he was not subject to a ten-year mandatory

minimum sentence because the Fair Sentencing Act’s amendments to § 841(b)(1)

applied. In 2010, Congress enacted the FSA, which changed the penalties in

§ 841(b) for crack cocaine offenses. The FSA, among other things, raised the

amount of crack cocaine in § 841(b)(1)(B)(iii) to 28 grams or more, thus

eliminating the ten-year mandatory minimum for § 841(a) crack cocaine offenses

involving less than 28 grams. See Fair Sentencing Act of 2010, Pub. L. No. 111-

220 § 2(a), 124 Stat. 2372 (2010). The FSA became effective on August 3, 2010.

See id. Tatum committed his § 841(a) crack cocaine offense on March 30, 2010.

However, Tatum was not sentenced until January 18, 2011, after the effective date

of the FSA.

C.    Sentencing Hearing

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      At the January 18, 2011 sentencing hearing, Defendant Tatum objected to

the two-level increase for obstruction of justice. The government conceded that it

could not prove the obstruction-of-justice enhancement, and the district court did

not impose it.

      Tatum also argued that the two-level increase for possession of a dangerous

weapon was unwarranted because he was not armed and did not have access to

any guns when he was arrested. The district court overruled the objection because

it was not “clearly improbable” that the guns were connected to the offense.

      Tatum then argued that the FSA applied to Tatum’s sentencing, and, thus,

Tatum was not subject to a ten-year mandatory minimum sentence. Noting that

Tatum’s offenses were committed prior to the FSA’s August 3, 2010 effective

date, the district court concluded that the FSA did not apply and overruled the

objection. Alternatively, Tatum contended he was eligible for safety-valve relief

from the mandatory minimum sentence, pursuant to U.S.S.G. § 5C1.2. The district

court disagreed because of the firearms found at the Bragdon Avenue residence.

      The district court found that, without the obstruction-of-justice

enhancement, Tatum’s total offense level was 28, which, with a criminal history

category of I, resulted in an advisory range of 78 to 97 months. However, due to

§ 841(b)(i)(B)’s mandatory minimum ten-year sentence, the district court

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determined that the guidelines sentence was 120 months. See U.S.S.G. § 5G1.1.

Before sentencing Tatum, the district court stated, “For your family’s sake, I’m

sorry that the law requires that I give you the mandatory minimum. Because that’s

what I believe the law does require me to do.”

       The district court sentenced Tatum to 120 months’ imprisonment on both

counts, to be served concurrently. Tatum filed this appeal.

                                     II. DISCUSSION

A.     Sufficiency of the Evidence

       We first conclude that the government’s evidence was sufficient to support

the jury’s guilty verdict on both counts.6 To convict a defendant of possession

with intent to distribute a controlled substance under 21 U.S.C. § 841(a)(1), the

government must prove: (1) knowledge, (2) possession, and (3) intent to

distribute. United States v. Mercer, 541 F.3d 1070, 1076 (11th Cir. 2008).

Knowledge, possession and intent can be proved by direct or circumstantial

evidence. United States v. Poole, 878 F.2d 1389, 1391-92 (11th Cir. 1989).

“Constructive possession is sufficient for the possession element, and can be



       6
         We review de novo a district court’s denial of a motion for judgment of acquittal on
sufficiency of the evidence grounds. United States v. Friske, 640 F.3d 1288, 1290 (11th Cir.
2011). We review the evidence in the light most favorable to the government, drawing all
reasonable inferences and credibility choices in the government’s favor. Id. at 1290-91.

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established by showing ownership or dominion and control over the drugs or over

the premises on which the drugs are concealed.” Id. at 1392.

      Here, the government introduced ample evidence to establish all three

elements of the § 841(a) offenses. The trial evidence, viewed in the light most

favorable to the government and the jury’s verdict, showed that when Tatum left

the Bragdon Avenue house, he had on his person cocaine and the prerecorded bills

the CI used to conduct the controlled buy. In the kitchen of the Bragdon Avenue

house, from which Tatum exited immediately prior to the search, deputies found

both cocaine powder and two recently “cooked” cookies of crack cocaine. The

cookies were sitting out on the kitchen counter top, along with a box of baking

soda, which was used to convert the powder into crack. The deputies also found

in the house other materials used to cook crack cocaine and package it for sale,

such as a Pyrex cup, plastic baggies and scales, as well as some cocaine already

prepacked. Tatum told the deputies at the scene that everything in the house was

his, and the deputies found documents listing the Bragdon Avenue house as his

address. These circumstances were more than sufficient for a jury to reasonably

find that Tatum had either actual or constructive possession of the crack and

powder cocaine, that his possession was knowing and that he intended to

distribute the drugs.

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B.     Dangerous Weapon Enhancement

       Tatum argues that the district court improperly applied a two-level

dangerous weapon enhancement under U.S.S.G. § 2D1.1.

       Pursuant to U.S.S.G. § 2D1.1(b)(1), a defendant’s offense level increases by

two levels “[i]f a dangerous weapon (including a firearm) was possessed.”

U.S.S.G. § 2D1.1(b)(1). The 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, cmt. n.3(A). Once the government demonstrates by a

preponderance of the evidence that the firearm was present at the site of the

charged conduct, the burden shifts to the defendant to show that a connection

between the firearm and the offense is clearly improbable. United States v.

Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006).7

       Here, the district court did not err in applying § 2D1.1(b)(1)’s two-level

enhancement. Based on the trial evidence and the undisputed facts in the PSI, the

deputies found multiple firearms in various locations in the same house as Tatum’s

drugs and drug distribution paraphernalia. One of the firearms was found in the

closet with some of the drugs and drug paraphernalia. Several other firearms,


       7
        We review for clear error the district court’s findings of fact under U.S.S.G.
§ 2D1.1(b)(1), and we review de novo the application of the Sentencing Guidelines to those
facts. United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006).

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including one reported stolen from the Mobile Police Department, were found

under a mattress in a bedroom. These facts are sufficient to carry the

government’s burden to show that the firearms were present at the site of Tatum’s

charged drug offenses. See United States v. Hunter, 172 F.3d 1307, 1309 (11th

Cir. 1999) (concluding firearms were present at the site of the charged drug

trafficking because they were found in defendant’s home along with plastic

baggies, glass vials, mixing spoons, diluting agent and transaction records);

United States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998) (concluding firearm

was present at the site of the charged conduct because defendant’s loaded gun was

found in an office adjacent to the area where the cocaine was discovered).

      Tatum, in contrast, did not carry his burden to show that the connection

between the firearms and his drug offenses was clearly improbable. Although

Tatum argued the firearms were hunting weapons, he did not present any evidence

to support his claim at either his trial or sentencing. Accordingly, we find no error

in the district court’s application of the two-level dangerous weapon enhancement.

C.    Fair Sentencing Act

      At sentencing, the district court declined to apply the penalty provisions in

21 U.S.C. § 841(b) as amended by the FSA because Tatum’s § 841(a) crack

cocaine offense in Count 2 was committed on March 30, 2010, before the FSA’s

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August 3, 2010 effective date. The Supreme Court recently held that the FSA’s

“more lenient penalty provisions apply to offenders who committed a crack

cocaine crime before August 3, 2010, but were not sentenced until after August 3.”

Dorsey v. United States, ____ U.S. ____, 132 S. Ct. 2321, 2326 (2012). We

therefore vacate Tatum’s sentence and remand for the limited purpose of

resentencing in light of Dorsey.8

       AFFIRMED IN PART; VACATED AND REMANDED.




       8
         Because we vacate Tatum’s 120-month sentences, we do not address his argument that
his sentences were unreasonable. Furthermore, even after the FSA, a defendant’s statutory
maximum increases if he has a prior felony drug conviction. See 21 U.S.C. § 841(c) (providing
for a statutory maximum of thirty years, rather than twenty years, when a defendant has a prior
felony drug conviction). On remand, the parties also should address Tatum’s 1998 marijuana
possession conviction and whether the government satisfied the notice requirements in 21 U.S.C.
§ 851(a)(1). The district court should make a finding as to what the statutory maximum is on
each count and why.

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