             Case: 18-11367     Date Filed: 07/26/2019   Page: 1 of 11


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-11367
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 6:16-cr-00207-ACC-TBS-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

JOSHUA OTIS GORDON CARTER,

                                                              Defendant-Appellant.
                           ________________________

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

                                  (July 26, 2019)

Before WILLIAM PRYOR, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

      Joshua Carter appeals his convictions for possession with intent to distribute

cocaine and possession of a firearm by a convicted felon. Carter argues that there
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was insufficient evidence that he constructively possessed the cocaine and the

firearm, which were found in the closet of his master bedroom. He also argues that

his trial counsel provided ineffective assistance when he made an inadequate

motion for judgment of acquittal and failed to request special jury instructions

about possession. Although we decline to review on direct appeal the performance

of counsel with respect to the jury instructions because Carter did not raise the

issue in the district court, we affirm Carter’s convictions in all other respects.

                                           I

      The Altamonte Springs (Florida) Police Department executed a search

warrant at Carter’s house the evening of February 29, 2016. Carter had recently

moved into the home, which he shared with his girlfriend and their children. He

gave the address to his probation officer when he moved out of the small apartment

he had shared with his girlfriend and her father. The probation officer had visited

Carter at the new home five days before the search.

      No one was home during the search. Police began searching in the master

bedroom upstairs, where they found scattered cash and a currency counter. In the

master bedroom closet, which contained 75% men’s clothes, 25% women’s

clothes, and 20 to 30 pairs of men’s shoes, police found a Glock .40-caliber

handgun with an extended magazine. They also found a red Iron Age–brand

shoebox containing a kilogram of cocaine, baggies, cups, spoons with cocaine


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residue and burn marks, lidocaine, nail polish remover,1 a GPS device, two credit

cards in the name of Carter’s girlfriend’s father, a receipt in the father’s name for a

different firearm, and an empty box for a digital scale. An orange Nike shoebox

contained $12,000 in cash, baggies, the digital scale, a wallet, and a health

insurance card in Carter’s name. Another shoebox contained a wallet, a driver’s

license with Carter’s photo, and credit cards in the name of Carter’s mother and

girlfriend. The closet also contained paper bags filled with photographs of Carter

and his family, love letters between Carter and his girlfriend, greeting cards, and

prison commissary receipts in Carter’s name.

       During the search, Carter’s probation officer called Carter four times to

inquire why he was not at home. The first time, he said he was at work. The second

time, he asked why the police were in front of his development. The third and

fourth times, Carter did not answer. Carter never came home the night of February

29.

                                                  II

       A federal grand jury indicted Carter on one count of possession with intent

to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1),




1
 A police officer testified at trial that acetone nail polish remover is used in drug trafficking for
diluting pure cocaine by bonding it with other substances, such as lidocaine, before resale.
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(b)(1)(B),2 and possession of a firearm by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1), 924(a)(2).3 During the two-day jury trial in October 2017, a

police officer testified about executing the search of Carter’s home, and police

analysts testified about the fingerprint evidence recovered from the seized items.

Five of Carter’s fingerprints had been identified on the gun receipt from the Iron

Age shoebox. The probation officer testified about Carter’s move and her

conversations with him the night of the search.

       Carter’s girlfriend’s father testified as follows. Carter lived with him briefly

in February or March 2016 after Carter got out of prison, and then Carter and his

girlfriend moved into a house together. The girlfriend’s father had never been to

the new house. He was in the habit of storing his belongings in shoeboxes, but he

never kept drugs or large amounts of cash in them. The Iron Age shoebox (but not

its contents) was his, and Carter probably took it when he moved out of his


2
  “[I]t shall be unlawful for any person knowingly or intentionally— (1) to . . . possess with
intent to . . . distribute . . . a controlled substance.” 21 U.S.C. § 841(a) (2010) (amended Dec. 21,
2018). Violations involving “500 grams or more of a mixture or substance containing a
detectable amount of . . . cocaine” were subject to a term of imprisonment “not less than 5 years
and not more than 40 years,” but if the offender had a prior conviction for a “felony drug
offense,” the mandatory minimum sentence was 10 years. Id. § 841(b)(1)(B)(ii).
         As since amended, § 841(b)(1)(B) now applies the 10-year mandatory minimum when an
offender has a prior conviction for a “serious drug felony or serious violent felony.” First Step
Act of 2018, Pub. L. No. 115-391, § 401(a)(2)(B), 132 Stat. 5194, 5220 (Dec. 21, 2018). That
amendment is not retroactive. Id. § 401(c), 132 Stat. at 5221.
3
  “It shall be unlawful for any person— (1) who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting
commerce, any firearm or ammunition.” 18 U.S.C. § 922(g). Violations of § 922(g) are subject
to a fine, a term of imprisonment “not more than 10 years,” or both. Id. § 924(a)(2).
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apartment. The Nike shoebox (but not its contents) may or may not have been his

because he and Carter wore the same size shoe, and Carter bought a lot of Nike

shoes. Carter’s girlfriend’s father also testified that he lawfully owned three

firearms but not the Glock seized from Carter’s house.

          At the close of the government’s evidence, Carter’s counsel moved for a

judgment of acquittal, asking the district court, “Would you like my Rule 29

motion?”:4

          It’s been a day and a couple of hours. I believe my Judge has been on
          the bench some time. So I leave it to the Court to evaluate this
          evidence and come to the conclusion that there’s not enough evidence
          sufficient to send the case to a jury.

The court denied the motion, reasoning, “I think there’s enough to go to the jury.”

The jury deliberated for nearly three hours before returning verdicts of guilty on

both counts. In March 2018, the court sentenced Carter to 120 months’

imprisonment, the mandatory minimum sentence for offenders, like Carter, with a

prior conviction for a “felony drug offense.” See 18 U.S.C. § 841(b)(1)(B) (2010)

(amended Dec. 21, 2018). Carter now appeals his convictions.5




4
  “After the government closes its evidence or after the close of all the evidence, the court on the
defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is
insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a).
5
    On appeal, Carter does not raise any issues about his sentence.
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                                          III

      Carter argues that his motion for a judgment of acquittal should have been

granted, because the evidence was legally insufficient to allow the jury to convict

him of possession of the firearm and the cocaine. But earlier in his briefing, Carter

asserts that his counsel “failed to actually make a motion for judgment of acquittal”

or that the motion he made was “legally insufficient” because it argued only briefly

that “there’s not enough evidence sufficient to send the case to a jury.” If we took

Carter at his word that this issue was not properly raised in the district court, we

would review this issue not de novo, but rather only to determine whether a

reversal of his convictions is “necessary to prevent a manifest miscarriage of

justice.” United States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006).

      But “it does not matter” whether we view his counsel’s Rule 29 motion as

sufficient to raise the issue before the district court. Id. Even assuming that his

counsel’s motion was legally sufficient, “the result of this appeal would be the

same.” Id. After viewing the evidence and making all reasonable inferences in

favor of the verdict, id., we conclude that any motion for a judgment of acquittal

was due to be denied.

      We will uphold the district court’s denial of a motion for judgment of

acquittal “if a reasonable trier of fact could conclude that the evidence establishes

the defendant’s guilt beyond a reasonable doubt.” United States v. Rodriguez, 218


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F.3d 1243, 1244 (11th Cir. 2000). Of course, “[i]t is not necessary that the

evidence exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt.” United States v. Tinoco,

304 F.3d 1088, 1122 (11th Cir. 2002) (quoting United States v. Calderon, 127 F.3d

1314, 1324 (11th Cir. 1997)). “The test for sufficiency of the evidence is identical

regardless of whether the evidence is direct or circumstantial, and no distinction is

to be made between the weight given to either direct or circumstantial evidence.”

United States v. Mieres-Borges, 919 F.2d 652, 656–67 (11th Cir. 1990) (internal

quotation marks omitted). However, where the government relies on circumstantial

evidence, “reasonable inferences, not mere speculation,” must support the jury’s

verdict. United States v. Mendez, 528 F.3d 811, 814 (11th Cir. 2008).

      To sustain a conviction for possession of a firearm by a convicted felon, the

government must prove (1) that the defendant was a convicted felon; (2) that the

defendant was in knowing possession of a firearm; and (3) that the firearm was in

or affected interstate commerce. United States v. Wright, 392 F.3d 1269, 1273

(11th Cir. 2004). To sustain a conviction for possession with intent to distribute a

controlled substance, the government must prove that the defendant had

(1) knowledge, (2) possession, and (3) intent to distribute. United States v.

Flanders, 752 F.3d 1317, 1332 (11th Cir. 2014). “Possession may be either actual

or constructive; if the accused exercised some measure of dominion or control over


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the contraband, either exclusively or in association with others, he constructively

possessed it.” Tinoco, 304 F.3d at 1123 (quoting United States v. Battle, 892 F.2d

992, 999 (11th Cir. 1990)). “Constructive possession, whether exclusive or joint,

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

premises where the object is found.” Flanders, 752 F.3d at 1332 (emphasis added).

      Carter argues that “the jury guessed” that the firearm and the drugs were in

his possession. Viewing the evidence in the light most favorable to the jury’s

verdicts, we disagree. Carter concedes on appeal that he lived in the house where

the items were seized. His girlfriend’s father and his probation officer also testified

that Carter resided in the house, and we must assume the jury believed that

testimony. Thus, the jury was entitled to conclude that, because Carter had

dominion and control over the premises where the firearm and the cocaine were

found, he constructively possessed them. See id.

      Nonetheless, Carter argues that his girlfriend also lived in the house and that

his girlfriend’s father stored items there. Yet Carter acknowledges that the father

testified that the firearm and the cocaine did not belong to him, and, viewing the

evidence in the light most favorable to the verdicts, we must assume that the jury

credited that testimony. Thus, Carter’s remaining contention is that the government

did not prove that the firearm and the cocaine did not belong to his girlfriend. This

argument fails because, as we have noted, Carter had dominion and control over


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the premises, which is sufficient to establish constructive possession of the items.

Furthermore, even if Carter’s girlfriend jointly possessed the items with him, joint

possession is sufficient to sustain a conviction, because “constructive possession of

a controlled substance may be exclusive or joint.” United States v. Tamargo, 672

F.2d 887, 890 (11th Cir. 1982). In sum, because the firearm and cocaine were

found in the closet attached to Carter’s bedroom, and in close proximity to Carter’s

belongings, a reasonable jury could have found that Carter “exerted ‘ownership,

dominion, or control’” over them. See United States v. Molina, 443 F.3d 824, 830

(11th Cir. 2006).

                                          IV

      Carter also argues that his counsel was ineffective for not making a legally

sufficient motion for a judgment of acquittal, and for not requesting special jury

instructions about possession. Neither of these ineffective-assistance issues was

raised in the district court, which therefore had no opportunity to develop a factual

record about them. Generally, we do not consider on direct appeal claims of

ineffective assistance of counsel that were not raised in the district court. United

States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010). We will, however,

consider such claims on direct appeal “if the record is sufficiently developed.” Id.

(quoting United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002)).




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      Because Carter did not raise either of these issues in the district court, the

record as to his counsel’s performance is entirely undeveloped. We do not know

whether, as a factual matter, his handling of the jury instructions was “sound trial

strategy.” See Strickland v. Washington, 466 U.S. 668, 689 (1984). Similarly, we

have not been asked to make any legal determinations on direct appeal about the

jury instructions, and the district court made no legal conclusions about jury

instructions that were not requested. Accordingly, we will not consider his

ineffective-assistance-of-counsel claim as to jury instructions.

      With respect to his ineffective-assistance claim as to the motion for a

judgment of acquittal, however, the record is sufficiently developed for us to

decide the issue. A claim of ineffective assistance relating to a motion for a

judgment of acquittal is “one of those rare instances” where the record is

sufficiently developed on direct appeal for our adjudication. Greer, 440 F.3d at

1272. Having just decided on direct appeal that any motion for a judgment of

acquittal was properly denied, we also conclude that Carter suffered no prejudice

from any deficient performance with respect to that motion. See Holladay v. Haley,

209 F.3d 1243, 1248 (11th Cir. 2000) (“the court need not address the performance

prong if the defendant cannot meet the prejudice prong”). Because the motion for a

judgment of acquittal was due to be denied in any case, Carter cannot establish “a

reasonable probability that but for counsel’s deficient performance, the result of his


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trial would have been different.” Id. (citing Strickland, 466 U.S. at 694). His

ineffective-assistance claim on this issue therefore fails.

                                           V

      Carter’s convictions are AFFIRMED.




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