                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             SEPT 9, 2008
                              No. 08-10059                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                 D. C. Docket No. 06-00096-CR-FTM-99SPC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ANSELMO RODRIGUEZ,
a.k.a Victor,

                                                          Defendant-Appellant.


                        ________________________

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

                            (September 9, 2008)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Anselmo Rodriguez was convicted by a jury on both counts of an indictment
charging him with conspiring to possess with intent to distribute and manufacture

100 or more marijuana plants in violation of 21 U.S.C. §§ 846 and 841 (“Count

1"), and one count of possessing, using, carrying and brandishing a firearm during

and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)

(“Count 2"). The court sentenced Rodriguez to 78 months of imprisonment on

Count 1 and 84 months of imprisonment on Count 2, to be served consecutively.

On appeal, Rodriguez does not challenge his conviction for the drug trafficking

conspiracy, nor does he dispute that he brandished a firearm on October 8, 2005.

Instead, Rodriguez argues that the conspiracy terminated before the firearm

incident, as two of his co-conspirators had withdrawn from the conspiracy and had

been arrested in September 2005, and that the evidence was otherwise insufficient

for a reasonable jury to conclude that the incident took place “during and in

relation to” the conspiracy.

      We review de novo the sufficiency of the evidence supporting a criminal

conviction. United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). We

must determine whether “a reasonable juror could conclude that the evidence

establishes guilt beyond a reasonable doubt.” Id. In considering the sufficiency of

the evidence, we view all of the evidence “in the light most favorable to the

verdict, drawing all reasonable inferences and resolving all questions of credibility



                                          2
in favor of the government.” Id.

      To convict a defendant under 18 U.S.C. § 924(c)(1)(A), the government

must establish both that the defendant used or carried a firearm, and that he used or

carried it “during and relation to” a drug trafficking crime. United States v.

Timmons, 283 F.3d 1246, 1250 (11th Cir. 2002). The phrase “in relation to” means

that “the firearm must have some purpose or effect with respect to the drug

trafficking crime; its presence or involvement cannot be the result of accident or

coincidence.” Smith v. United States, 508 U.S. 223, 238, 113 S. Ct. 2050, 2058-59,

124 L. Ed. 2d 138 (1993). In other words, “the gun at least must facilitate, or have

the potential of facilitating, the drug trafficking offense.” Id., 113 S. Ct. at 2059

(internal quotation marks and alterations omitted).

      Rodriguez moved for a judgment of acquittal after the government rested,

and the district court took the motion under advisement, reserving judgment on the

matter until after the verdict. The court expressed some initial reservations about

the sufficiency of the evidence to support the conviction as to the firearm count.

      The evidence at trial reflected that Rodriguez discharged a firearm at a co-

conspirator after learning that the co-conspirator reported to law enforcement about

Rodriguez’s involvement in the marijuana cultivation operation. The co-

conspirator’s wife and child were nearby at the time of the incident, although



                                            3
neither suffered any physical injuries related to the incident. There is evidence that

when a law enforcement officer approached the scene, Rodriguez pointed the

firearm at the officer.

      Rodriguez argues that the government failed to prove any nexus between the

firearm and a drug trafficking crime. He argues that when he discharged the

firearm in the direction of a co-defendant on October 8, 2005, the co-conspirators

had withdrawn from the conspiracy, had been arrested, and Rodriguez had

terminated his own involvement in the conspiracy. Therefore, the jury could not

reasonably have concluded that he brandished the firearm or used it to facilitate the

conspiracy. It was, he argues, an act of personal animosity not in furtherance of a

conspiracy.

      Having reviewed the relevant parts of the record and the parties’ briefs, we

hold that a reasonable jury could have concluded that the evidence was sufficient

to establish Rodriguez’s guilt as to the firearm offense beyond a reasonable doubt.

We agree with the district court that at the time that he brandished the firearm,

Rodriguez “still remained a conspirator who had not withdrawn or terminated his

involvement, and there was evidence of the involvement of other conspirators in

connection with the distribution of marijuana. The evidence clearly establishes

that the shooting was not accidental or coincidental, and . . . the shooting could



                                           4
potentially facilitate the drug conspiracy as retaliation for cooperation with the

police as an example to other conspirators.” Accordingly, we find that the district

court did not err in denying Rodriguez’s motion for a judgment of acquittal, and

we affirm his conviction.

      AFFIRMED.




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