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                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-14405
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:15-cr-00019-CDL-MSH-1



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

versus

DYRELL LESHAUN DAVIS,

                                             Defendant - Appellant.

                      ________________________

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

                            (October 27, 2017)

Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      A jury found Dyrell Davis guilty of possession of marijuana and possession

of a firearm by a convicted felon. Mr. Davis appeals that verdict, challenging the

propriety of certain closing remarks at trial made by the government’s attorney, the

sufficiency of the evidence connecting him to the firearm, and the use of two prior

Georgia convictions for aggravated assault to enhance his sentence.            After

considering the record and the parties’ arguments, we affirm.

                                          I

      The government indicted Mr. Davis for possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i);

possession of marijuana with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(D); and possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). The evidence at trial, viewed in the light most

favorable to the government and with all inferences drawn in favor of the jury’s

guilty verdict, see United States v. Holt, 777 F.3d 1234, 1259 (11th Cir. 2015),

established the following.

      Police executed a search warrant at an apartment in Columbus, Georgia, in

April of 2014. Officers approaching the apartment observed two men outside.

Upon seeing the police, one of the men, Mr. Davis, fled inside the apartment. The

officers followed Mr. Davis through the rear of the apartment, and apprehended

him somewhere near the living room. On their way to the living room, officers



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walked through the kitchen, where they discovered digital scales and a 9mm pistol

in the trashcan. During their search of the apartment, the officers found a bag of

marijuana weighing 48.2 grams. They also found various items in one of the

apartment bedrooms bearing Mr. Davis’ name, and they found a photograph of him

kissing a wad of cash.

      Mr. Davis was arrested and taken to the police department. He gave a

statement admitting that he owned the marijuana and handgun. He even specified

that he owned “a nine.”

      At trial, however, Mr. Davis denied possessing the handgun. He argued that

he could not have had a gun on him on the day of the arrest because of his attire.

The other man outside the apartment, Isiah Gordon, testified that he had not seen a

gun on Mr. Davis. Mr. Davis’ sister testified that the gun was hers. Taking the

stand, Mr. Davis admitted running into the apartment to hide the marijuana, but he

denied having anything to do with the gun.

      The jury acquitted Mr. Davis of possession of a firearm in furtherance of a

drug trafficking crime, and of possession of marijuana with intent to distribute. It

found him guilty of the lesser included offense of possession of marijuana, and of

possession of a firearm by a convicted felon.




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                                           II

      During the trial, the government sought to introduce the photograph of

Mr. Davis kissing the wad of cash. When defense counsel objected that the

photograph was unduly prejudicial, the government responded that it only intended

to use the photograph to link Mr. Davis to the bedroom in which the marijuana was

found, and not as substantive evidence of distribution. The district court gave a

limiting instruction to that effect.

      During closing remarks, the government asked the jury to consider the scales

and amount of marijuana for purposes of the trafficking and distribution charges.

In response, defense counsel stressed the lack of any evidence that Mr. Davis

possessed large amounts of cash typically found on drug dealers. The government,

on rebuttal, pointed to the picture of Mr. Davis kissing a wad of cash as such

evidence. Mr. Davis now challenges those closing remarks on appeal, arguing that

those statements constituted improper use of that photograph. Because he failed to

object to the prosecutor’s statements during trial, we review for plain error. See

United States v. Webb, 463 F.2d 1324, 1328 (5th Cir. 1972).

      We conclude that there was no plain error. The entire dispute surrounding

the photograph is that it improperly linked Mr. Davis, in the jury’s mind, to the

trafficking and distribution charges. Yet Mr. Davis was acquitted of both of these

charges. And there was more than enough evidence to convict him on the lesser



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charge of possession. Mr. Davis twice admitted—upon arrest and again on the

stand—that the marijuana was his. On plain-error review, we cannot say that the

prosecutor’s comments, even if improper, substantially prejudiced him on the

possession charge.

                                        III

      Mr. Davis argues that there was insufficient evidence to convict him of

possession of a firearm. His argument is twofold. First, he says that, although he

admitted to possessing the handgun found in the apartment, he cannot be convicted

on the basis of his post-arrest admission alone. Second, he says that his sister

admitted to owning the handgun.

      We acknowledge that Mr. Davis’ confession that he owned the handgun,

standing alone, is insufficient to convict him. See United States v. Green, 842 F.3d

1299, 1306 (11th Cir. 2016) (explaining that a confession must be corroborated).

But in this case there was enough circumstantial evidence establishing his

possession of the firearm retrieved from the kitchen trashcan.

      The evidence introduced by the government established that Mr. Davis fled

inside the apartment when he saw the police. Officers pursued him inside, past the

kitchen, and into the living room, where they arrested him.        They found the

handgun in a trashcan that was located in the kitchen and on the way to the living

room. From this evidence, a reasonable jury could have found that Mr. Davis



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possessed the firearm moments before the police stormed into the apartment and

that, to avoid detection, he dropped the handgun into the trashcan. To the extent

Mr. Davis’ sister provided conflicting testimony, the jury was free to disbelieve

her. See United States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004) (noting that

a jury is free to disregard family member’s testimony that handgun did not belong

to the defendant).

      Accordingly, we conclude that there was sufficient extrinsic evidence to

substantiate Mr. Davis’ admission, and we affirm his conviction for possession of a

firearm by a convicted felon.

                                         IV

      Finally, Mr. Davis argues, for the first time on appeal, that the district court

improperly increased his base offense level at sentencing when it considered two

prior Georgia aggravated assault convictions that he maintains do not constitute

crimes of violence under the Sentencing Guidelines. We find that the district court

did not commit plain error because, at the time of sentencing, there was no binding

precedent from this Circuit on whether a Georgia conviction for aggravated assault

qualified as a crime of violence under the Guidelines. The sole binding case cited

by Mr. Davis, United States v. Palomino Garcia, 606 F.3d 1317 (11th Cir. 2010),

does not resolve this question because it addressed an Arizona statute. Mr. Davis,

therefore, cannot show plain error and his sentence stands.



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                                 V

For these reasons, we affirm Mr. Davis’ convictions and sentence.

AFFIRMED.




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