                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             DEC 18, 2007
                              No. 07-10619                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 06-20265-CR-ASG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JAMES FRANKLIN MCCOY,

                                                          Defendant-Appellant.


                        ________________________

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

                            (December 18, 2007)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

     James Franklin McCoy appeals his conviction and 264-month sentence for
possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)

and 18 U.S.C. § 924(e)(1). For the reasons set forth below, we affirm.

                                I. BACKGROUND

      On April 24, 2006, approximately ten Miami police officers went to 415

NW 9th Street, Apartment 9 (“Apartment 9”) to execute a felony arrest warrant for

Andrea McWhorter, who was known to carry weapons and was a suspect in at least

3 murders. Miami Police Detective Wayne Tillman received an anonymous tip

that McWhorter had exited a compact beige car and entered Apartment 9. Before

the officers police knocked on the door, McCoy, who was known to the officers as

a felon, appeared in the doorway. As McCoy was moving out of the doorway,

Detective Suarez saw a chrome revolver lying on the floor in the apartment near

the couch and yelled “gun.” Around the time that McCoy opened the door to the

apartment, Tillman saw a beige car leaving at a high rate of speed, but he testified

that he did not try to stop the vehicle because Suarez had just yelled “gun.”

      Police handcuffed McCoy and patted him down for weapons. During the

pat-down, police found keys to the apartment in McCoy’s pockets. The officers

testified that they entered the apartment to make sure that neither McWhorter nor

anyone else was inside. After the officers were inside, McCoy told an officer that

no one was inside the apartment. Once the officers cleared the apartment, they



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exited and obtained a search warrant. Pursuant to that search warrant, police

recovered the firearm along with crack cocaine, marijuana, and drug paraphernalia.

      Before trial, McCoy moved to suppress the evidence that the officers

obtained from the pat-down and search. The magistrate judge recommended that

McCoy’s motion to suppress be denied. The magistrate found that, pursuant to

Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990), a

protective sweep was permissible because McCoy was lawfully arrested within

minutes of the search. The district court affirmed the report and denied McCoy’s

motion to suppress.

      At trial, Tillman testified that McCoy was not a lessee of the apartment, and

the police did not find any of McCoy’s clothes in the apartment. Police did find,

however, a letter that was postmarked October 2005 and addressed to McCoy at

Apartment 9. Suarez also identified copies of Western Union wire transfer receipts

found in a kitchen drawer in which McCoy was listed as the transferor. The

Maintenance Manager for the building testified that McCoy lived at Apartment 9

for about a year and a half.

      McCoy stipulated that he was a convicted felon and that the chrome revolver

found near the couch had traveled in interstate and foreign commerce. McCoy

testified that he lived with his mother and sister, but that McWhorter had allowed



                                         3
him to rest on the couch in Apartment 9 on the day of the arrest because he had

spent the previous night in the hospital. After resting for about forty-five minutes

to an hour, McCoy says he got up, opened the door, and found the police outside.

He claims, however, that he did not see a gun while he was in the apartment.

McCoy explained that the letter that was found inside Apartment 9 came from a

prisoner friend who used to live in the same building, and “he probably figured out

that . . . [McCoy] might get that letter from, from [McCoy’s friend].” According to

McCoy, police found the Western Union receipts in his truck where McCoy kept

them.

        After the defense rested, McCoy failed to reassert his motion for a judgment

of acquittal and the jury found McCoy guilty of possession of a firearm by a

convicted felon.1 In the presentence investigation report (“PSI”), the probation

officer classified McCoy as an armed career criminal under 18 U.S.C. § 924(e).

Based on a total offense level of 34 and a criminal history category of VI, the

guideline imprisonment range was 262 to 327 months’ imprisonment. McCoy did

not object to the findings in the PSI.


        1
          In the five-count superceding indictment, McCoy was also charged with possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i) (Count II), and three
counts of possession with intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1) (Counts
III, IV, V). The jury was unable to reach a verdict on Counts II-V, and the district court declared
a mistrial on those counts. After McCoy was sentenced for possession of a firearm by a convicted
felon, the government dismissed Counts II-V.

                                                 4
      At the sentencing hearing, McCoy objected to being classified as an armed

career criminal. He admitted, however, that he had been “convicted of [1] battery

on a law enforcement officer, resisting with violence, [2] fleeing and attempting to

elude during a high-speed chase[,] and [3] aggravated assault on a police officer.”

The district court determined that McCoy was an armed career criminal and

imposed a sentence of 264 months’ imprisonment.

      On appeal, McCoy argues that: (1) the district court erred in denying his

motion to suppress; (2) the evidence was insufficient to support his conviction; and

(3) the district court erred in classifying him as an armed career criminal.

                                 II. DISCUSSION

A. Suppression of the Firearm

      McCoy first argues that the district court erred by denying his motion to

suppress the firearm because exigent circumstances did not exist to justify the

officers’ protective sweep of Apartment 9. In reviewing a district court’s denial of

a motion to suppress, we review findings of fact for clear error and the application

of law to those facts de novo. United States v. Acosta, 363 F.3d 1141, 1144 (11th

Cir. 2004). We construe the facts in the light most favorable to the party prevailing

in the district court, United States v. Hromada, 49 F.3d 685, 688 (11th Cir. 1995),

and we may affirm a district court decision on any ground supported by the record,



                                           5
Bircoll v. Miami-Dade County, 480 F.3d 1072, 1088 n.21 (11th Cir. 2007).           While

“[t]he warrantless search of a home is presumptively unreasonable,” United States

v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (internal quotation marks omitted),

“[t]he exigent circumstances exception to the warrant requirement recognizes a

warrantless entry by criminal law enforcement officials may be legal when there is

compelling need for official action and no time to secure a warrant.” Bashir v.

Rockdale County, 445 F.3d 1323, 1328 (11th Cir. 2006) (internal quotation marks

omitted). Probable cause must exist, however, even where exigent circumstances

are present, id., and the government bears the burden of proving exigent

circumstances, United States v. Holloway, 290 F.3d 1331, 1337 (11th Cir. 2002).

      The exigent circumstances exception only applies if the police reasonably

believed that an emergency situation justified warrantless action. Id. at 1338.

Examples of exigent circumstances include: “danger of flight or escape, loss or

destruction of evidence, risk of harm to the public or the police, mobility of a

vehicle, and hot pursuit.” Bashir, 445 F.3d at 1328 (internal quotation marks

omitted).

      We hold that exigent circumstances justified the warrantless search of

Apartment 9 because the risk of harm that the officers reasonably perceived

presented a compelling need for immediate action. The officers believed that



                                           6
McWhorter was inside the apartment when Suarez noticed the chrome revolver.

The officers knew, moreover, that McWhorter was known to carry weapons, was a

suspect in at least three murders, and was believed to be inside the apartment.

Although Tillman acknowledged that he saw a beige vehicle leaving the scene at a

high-rate of speed around the same time that Suarez yelled “gun,” Tillman testified

that his attention was focused on the potentially dangerous situation at the

apartment. The district court did not err, therefore, in denying McCoy’s motion to

suppress the firearm.

      We reject McCoy’s argument based on United States v. Colbert, 76 F.3d 773

(6th Cir. 1996), because the circumstances in Colbert are not analogous to those

that the officers faced here. Colbert was arrested while leaving his girlfriend’s

apartment. Even though a shotgun was resting in plain view inside the apartment

when the officers arrested Colbert, the Sixth Circuit determined that the protective

sweep of the apartment was unreasonable because nothing suggested that anyone

might have been in the apartment. Id. Here, however, the officers’ belief

concerning the possible presence of a dangerous person in Apartment 9 was

reasonable.

B. Suppression of the Keys

      McCoy next argues that the keys to Apartment 9 must be suppressed



                                          7
because the officers discovered them during a pat-down incident to an unlawful

arrest. “[A] law enforcement officer’s reasonable suspicion that a person may be

involved in criminal activity permits the officer to stop the person for a brief time

and take additional steps to investigate further.” Hiibel v. Sixth Judicial Dist.

Court of Nev., Humboldt County, 542 U.S. 177, 185, 188, 124 S. Ct. 2451, 2458,

159 L. Ed. 2d 292 (2004). “Once an officer has legitimately stopped an individual,

the officer can frisk the individual so long as ‘a reasonably prudent man in the

circumstances would be warranted in the belief that his safety or that of others was

in danger.’” United States v. Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002)

(quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889

(1968)).

      Whether an officer has reasonable suspicion is a question of law that we

review de novo. Evans v. Stephens, 407 F.3d 1272, 1280 (11th Cir. 2005) (en

banc). We consider the question in light of the totality of the circumstances from

the perspective of a reasonable officer. Hicks v. Moore, 422 F.3d 1246, 1252 (11th

Cir. 2005). “While ‘reasonable suspicion’ is a less demanding standard than

probable cause and requires a showing considerably less than preponderance of the

evidence, the Fourth Amendment requires at least a minimal level of objective

justification for making the stop.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.



                                           8
Ct. 673, 675-76, 145 L. Ed. 2d 570 (2000). The officer must “be able to point to

specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant [the] intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. at

1880. Reasonable suspicion does not, however, “require officers to catch the

suspect in a crime.” Acosta, 363 F.3d at 1145.

      Because the officers knew that McCoy was a convicted felon, specific and

articulable facts supported their reasonable belief upon seeing the firearm in the

apartment that McCoy had committed or was committing the crime of possession

of a firearm by a convicted felon. Accordingly, the officers had the requisite

suspicion of criminal activity when they detained McCoy and conducted the pat-

down. The district court did not err, therefore, by denying McCoy’s motion to

suppress the keys.

C. Sufficiency of the Evidence

      McCoy next argues that the evidence was not sufficient to prove that he

knowingly possessed the firearm. We review de novo whether there is sufficient

evidence to support a conviction. United States v. Charles, 313 F.3d 1278, 1284

(11th Cir. 2002) (per curiam). In considering the sufficiency of the evidence, we

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

inferences and credibility choices drawn in the government’s favor.” United States



                                          9
v. LeCroy, 441 F.3d 914, 924 (11th Cir. 2006), cert. denied, 127 S. Ct. 2096

(2007). We “cannot reverse a conviction for insufficiency of the evidence unless

. . . we conclude that no reasonable jury could find proof beyond a reasonable

doubt.” United States v. Jones, 913 F.2d 1552, 1557 (11th Cir. 1990). When,

however, a defendant fails to renew his motion for judgment of acquittal after all of

the evidence has been presented, reversal of the conviction is appropriate only to

prevent “a manifest miscarriage of justice.” United States v. Bender, 290 F.3d

1279, 1284 (11th Cir. 2002).

      “To establish a violation of Title 18, United States Code Section 922(g)(1),

the government must prove three elements: (i) that the defendant has been

convicted of a crime punishable by imprisonment for a term exceeding one year,

(ii) that the defendant knowingly possessed a firearm or ammunition, and (iii) such

firearm or ammunition was in or affected interstate commerce.” United States v.

Funches, 135 F.3d 1405, 1406-07 (11th Cir. 1998). Because McCoy stipulated to

the first and third elements, the only issue is whether McCoy knowingly possessed

the firearm.

      Possession, in the context of § 922(g)(1), “may be proven either by showing

that the defendant actually possessed the firearm, or by showing that he

constructively possessed the firearm.” United States v. Gonzalez, 71 F.3d 819, 834



                                         10
(11th Cir. 1996). The government may prove constructive possession by showing

that the defendant had unrestricted access over the premises where the contraband

was located. See United States v. Harris, 20 F.3d 445, 454 (11th Cir. 1994),

modified on other grounds, United States v. Toler, 144 F.3d 1423 (11th Cir. 1998).

Furthermore, at least where some corroborative evidence of guilt exists for the

charged offense, “a statement by a defendant, if disbelieved by the jury, may be

considered as substantive evidence of the defendant’s guilt.” United States v.

Brown, 53 F.3d 312, 314 (11th Cir. 1995). In other words, “when a defendant

chooses to testify, he runs the risk that if disbelieved the jury might conclude the

opposite of his testimony is true.” Id. (internal quotation marks omitted).

      Viewing the evidence in the light most favorable to the government, the

evidence was sufficient to support the jury’s conclusion that McCoy constructively

possessed the firearm. McCoy admitted that he was alone in the apartment, and the

firearm was within his ready access near the couch on which he was resting.

Although McCoy testified that he did not know about the gun, the jury was free to

disbelieve him and consider his testimony as substantive evidence of his guilt. The

jury could have reasonably inferred that McCoy was more than merely present in

the apartment based on (1) the apartment keys found in his pocket; (2) the

apartment manager’s testimony that McCoy lived in the apartment; and (3) the



                                          11
letter addressed to McCoy found in the kitchen. Furthermore, the jury could have

reasonably inferred from the keys and his unaccompanied presence in the

apartment that McCoy had unrestricted access to the apartment. Accordingly,

because a reasonable jury could have found beyond a reasonable doubt that McCoy

violated § 922(g), no miscarriage of justice occurred.

D. Armed Career Criminal Determination

      McCoy lastly argues that the district court violated his Fifth and Sixth

Amendment rights when it found that he was an armed career criminal and

imposed a sentence beyond the 10-year statutory maximum based on the court’s

determinations concerning his prior convictions.2 McCoy acknowledges that we

rejected an argument similar to his in United States v. Greer, 440 F.3d 1267 (11th

Cir. 2006). He raises the argument, however, to preserve the issue in the event the

Supreme Court overrules Almendarez-Torres v. United States, 523 U.S. 224, 118

S. Ct. 1219, 140 L. Ed. 2d 350 (1998).

      We held in Greer that district judges may determine whether prior

      2
        In support of his argument, McCoy cites the Supreme Court’s recent decision
in Cunningham v. California, — U.S. —, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007).
In Cunningham, however, the Supreme Court reiterated the principle that “the Federal
Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge
to impose a sentence above the statutory maximum based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant.” Id. at —, 127 S. Ct. at
860 (emphasis added). Accordingly, Cunningham does not affect the outcome here
because it preserved the Supreme Court’s exception for prior convictions.

                                         12
convictions qualify as violent felonies under the Armed Career Criminal Act.

Greer, 440 F.3d at 1275. In Almendarez-Torres, moreover, the Supreme Court

held that a prior conviction is not a fact that must be admitted by a defendant or

found by a jury beyond a reasonable doubt. Almendarez-Torres, 523 U.S. at 258,

118 S. Ct. at 1238. Furthermore, McCoy actually admitted at the sentencing

hearing to the convictions that qualified him as an armed career criminal.

Accordingly, the district court did not err by classifying McCoy as an armed career

criminal.

                                III. CONCLUSION

      For the reasons set forth above, we conclude that the evidence was sufficient

to support McCoy’s conviction for possession of a firearm by a convicted felon,

and that the district court did not err by denying McCoy’s motion to suppress and

classifying McCoy as an armed career criminal. Accordingly, we affirm.

      AFFIRMED.




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