           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 18, 2009

                                       No. 08-41261                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,
v.

DARRYL DEWAYNE EDWARDS, also known as David Devon Wilson,

                                                   Defendant - Appellant.




                   Appeal from the United States District Court
               for the Eastern District of Texas, Beaumont Division
                              USDC No. 1:07-CR-203


Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Darryl Dewayne Edwards appeals his convictions and sentence for drug
trafficking and firearms charges. We affirm for the reasons below:
1.     In appealing his convictions, Edwards seeks to reverse the district court’s
denial of his motion to suppress evidence from the search of his girlfriend’s
home. We review the district court’s findings of facts for clear error, viewing the
evidence in the light most favorable to the prevailing party, and its legal
conclusions de novo. United States v. Rico, 51 F.3d 495, 500 (5th Cir. 1995).

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-41261

      Although a warrantless entry into a residence is presumptively
unreasonable without consent, it is lawful if “probable cause and exigent
circumstances justify the encroachment,” United States v. Jones, 239 F.3d 716,
719 (5th Cir. 2001), as long as the officers did not create the exigency. United
States v. Hearn, 563 F.3d 95, 106 (5th Cir. 2009). The “knock-and-talk” is a
legitimate investigatory method, but officers cannot use the tactic knowing that
to do so will manufacture an exigent circumstance that will necessitate a
protective search of the area. Jones, 239 F.3d at 721. Exigency justifies a
warrantless entry if there is a possibility that evidence will be removed or
destroyed in the time it takes to procure a warrant. Jones, 239 F.3d at 720.
      Here, although the officers knew before knocking on Edwards’s girlfriend’s
door that the brother of a dangerous fugitive was in the house and thus that the
fugitive could be in the vicinity, they were not aware of the presence of drugs in
the house when they initiated the “knock-and-talk” encounter. They therefore
could not have created the exigency caused by the unexpected combination of
easily destructible contraband, of which they became aware after knocking but
before entering the house, and the possible presence of a fugitive.          That
combination of circumstances gave the officers reason to believe that contraband
may have been destroyed if they had waited outside until a warrant could be
procured, so their entrance was justified by exigency and evidence from the
search was properly admitted.
2.    Edwards also contends that his confessions to law enforcement officers
were involuntary and therefore should not have been admitted into evidence.
We review the district court's factual findings for clear error, and the ultimate
legal question of voluntariness de novo. United States v. Scurlock, 52 F.3d 531,
536 (5th Cir. 1995). Voluntariness is determined by considering the totality of
the circumstances and asking whether the statement was the product of the
accused's “free and rational choice.” United States v. Ornelas-Rodriguez, 12 F.3d

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1339, 1347 (5th Cir. 1994).
      Edwards contends that the officers made an “implicit promise” that if he
did not confess, his girlfriend would be arrested and their child put into state
care. However, officers who were at the scene of the arrest testified that none
of them threatened Edwards to induce his confession, nor did they mention the
possibility of putting his child in state care. Edwards does not point to any
evidence to support his claim that he was threatened in any way, nor does he
point to any evidence contradicting the district court’s conclusion that he had the
mental capacity and experience with the system to understand the rights he was
waiving when he confessed. Edwards’s confessions were therefore properly
admitted.
3.    Edwards also argues that his convictions are based on insufficient
evidence. On appeal, we view the evidence and all inferences drawn from it in
the light most favorable to the verdict, accept all credibility choices that would
support that verdict, and ask whether a rational jury could have found the
essential elements of all of Edwards’s offenses beyond a reasonable doubt.
United States v. Dean, 59 F.3d 1479, 1484 (5th Cir. 1995).
      First, Edwards argues that there was insufficient evidence that he had
dominion and control over the drugs and firearm found in his girlfriend’s home.
His convictions for possession of a firearm as a felon, possession of a firearm in
furtherance of a drug trafficking crime, and possession of crack cocaine with
intent to distribute all require a finding that he exercised dominion and control
over the contraband. The jury’s conclusion that he possessed the contraband
found in his girlfriend’s home is supported by evidence showing that he stayed
there often, that he opened the door to the officers, that he kept personal
belongings in the closet where some of the contraband was found, that the only
other adult resident of the house was surprised by the finding of the contraband
and by the absence of any evidence tying the contraband to anyone besides

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Edwards. The possession elements of his convictions are therefore supported by
sufficient evidence.
      Second, a rational jury could have concluded that Edwards attempted to
manufacture crack cocaine based on detectives’ testimony that they found most
or all of the materials needed to manufacture crack cocaine, many of which were
coated with cocaine residue, and a large piece of crack in distributable form.
These items were found in the same circumstances as the other contraband,
indicating that they were under Edwards’s dominion and control and therefore
that he had committed a substantial step towards manufacturing crack cocaine.
      Third, a rational jury could have concluded that Edwards had the requisite
intent to distribute crack cocaine. The quantity of crack he possessed, 2.23
grams, is not sufficient, without more, to prove an intent to distribute. See
United States v. Hunt, 129 F.3d 739, 742 (5th Cir. 1997). Other evidence in the
record, however, includes evidence of the presence of enough cocaine powder (in
a compressed “wholesale” form) to make 122.82 grams of crack; the presence of
paraphernalia indicative of the manufacture of crack cocaine; expert testimony
that individuals who manufacture crack cocaine usually do not also personally
consume it and are usually distributors; the presence of a gun near the cocaine;
and the absence of smoking paraphernalia. In combination, these pieces of
evidence adequately support the jury’s conclusion that Edwards intended to
distribute the crack cocaine he possessed.
      Fourth, the record supports the jury’s conclusion that Edwards possessed
a firearm “in furtherance” of a drug trafficking crime. To determine whether a
firearm is possessed in furtherance of a drug crime, we consider “the type of drug
activity that is being conducted, accessibility of the firearm, the type of the
weapon, whether the weapon is stolen, the status of the possession (legitimate
or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the
time and circumstances under which the gun is found.”            United States v.

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Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000). Possession of a gun to
protect drugs against robbery can satisfy the required nexus between the
firearm and the predicate drug offense. Id. at 415. Here, although the gun was
not immediately accessible to Edwards when it was found, neither was it locked
up so as to be inaccessible. Further, the firearm was loaded, stored within reach
of the drugs that formed the basis of the drug trafficking offense, and could not
be lawfully possessed by Edwards because of his status as a convicted felon.
Most of the relevant factors are therefore in the government’s favor, so the jury
could have inferred that the gun was being used to protect the drugs Edwards
intended to distribute.
      The contraband and Edwards’s confessions were correctly admitted by the
district court and there was sufficient evidence before the jury for Edwards’s
convictions. His convictions are AFFIRMED.
4.    Edwards’s challenges to his life sentence also fail. First, the government
provided Edwards with proper notice of the sentence enhancement pursuant to
§ 851 notwithstanding the clerical error in the date listed for one of Edwards’s
prior offenses. An “error . . . negates the notice provided by the other listed data
only if the discrepancy misled [the defendant] to his prejudice.” United States
v. Steen, 55 F.3d 1022, 1028 (5th Cir. 1995). There is no evidence in the record
that Edwards lacked notice before trial that his sentence was subject to
enhancement, nor that he was unaware of which offenses the notice of
enhancement referenced, nor that he was otherwise misled by the error.
      Second, the district court did not “double count” Edwards’s two prior
convictions when it applied the statutory sentence enhancement for prior
convictions under 21 U.S.C. § 841(b)(1)(A). For the purposes of an enhancement
under § 841(b)(1)(A), “separate convictions constitute one offense when the
violations occur simultaneously, as opposed to sequentially.” United States v.
Barr, 130 F.3d 711, 712 (5th Cir. 1997). Although he was sentenced for both

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offenses at the same time because the second offense violated his probation for
the first, Edwards’s two offenses occurred 14 months apart, and he served two
months of probation for the first offense before committing the second.
      Third, the district court did not err by applying the statutory sentence
enhancement based on facts found by the judge instead of by a jury. At trial, the
jury heard testimony from a fingerprint expert that Edwards’s prints matched
those on two prior convictions committed under the name “David Devon Wilson.”
In order to find Edwards guilty of being a felon in possession of a firearm, the
jury was required to conclude, beyond a reasonable doubt, that Edwards had
been convicted of a prior felony offense. In so finding, the jury must also have
found that Edwards was the same person as David Devon Wilson, and therefore
that Edwards committed both of the prior felonies as required for the sentencing
enhancement under § 841(b)(1)(A). Thus, no facts were improperly found by the
judge instead of the jury and the sentence was properly imposed.
      Edwards’s challenges to his sentence are without merit and consequently
his sentence is AFFIRMED.
      The convictions and sentence of Darryl Dewayne Edwards are, for the
reasons stated, in all respects
                                                                   AFFIRMED.




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