                    Case: 11-16130         Date Filed: 09/05/2012   Page: 1 of 4

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-16130
                                        Non-Argument Calendar
                                      ________________________

                                D.C. Docket No. 1:11-cr-20022-UU-2



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                Plaintiff-Appellee,

                                                versus

GILBERTO GARCIA,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                           (September 5, 2012)

Before DUBINA, Chief Judge, HULL and MARTIN, Circuit Judges.

PER CURIAM:
                Case: 11-16130   Date Filed: 09/05/2012   Page: 2 of 4

      Appellant Gilberto Garcia appeals his conviction for possession of a firearm

in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. §

924(c)(1)(A).

Garcia argues that there was insufficient evidence to prove that his firearm

possession was “in furtherance of” the drug-trafficking crime. The facts adduced

at the bench trial on this count showed that Garcia drove to Florida with a fully

loaded, semi-automatic firearm in the front console of the truck, knowing that he

would negotiate a cocaine deal. Garcia agreed to drive an undercover vehicle

containing the cocaine to a storage location, and intended for his codefendant to

follow him in the truck with the firearm.

      Sufficiency of the evidence is question of law subject to de novo review.

United States v. Martinez, 83 F.3d 371, 373-74 (11th Cir. 1996). While ordinarily

a party must move for a judgment of acquittal at trial in order to preserve a

sufficiency of the evidence argument on appeal, it is not necessary to do so in a

bench trial. United States v. Hurn, 368 F.3d 1359, 1368 n.5 (11th Cir. 2004). In

assessing sufficiency, we review the evidence “in the light most favorable to the

government, with all reasonable inferences and credibility choices made in the

government’s favor.” Martinez, 83 F.3d at 374. A conviction will not be reversed

unless “no reasonable trier of fact could find guilt beyond a reasonable doubt.”

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United States v. Schaltenbrand, 930 F.2d 1554, 1560 (11th Cir. 1991).

      Section 924(c) of Title 18 of the U.S. Code states, “any person who, during

and in relation to any crime of violence or drug trafficking crime . . . uses or

carries a firearm, or who, in furtherance of any such crime, possesses a firearm,

shall, in addition to the punishment provided for such crime of violence or drug

trafficking crime” be subject to additional penalties enumerated in the statute. 18

U.S.C. § 924(c)(1)(A). We have interpreted “in furtherance of” to mean that the

firearm “helped, furthered, promoted, or advanced the drug trafficking.” United

States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002). Mere presence of a

firearm in the defendant’s “dominion and control” during the drug offense is

insufficient by itself to constitute possession “in furtherance of” the

drug-trafficking crime. Id. at 1253. We consider a list of non-exclusive factors in

determining whether there is “some nexus between the gun and the drug selling

operation”: (1) the type of drug activity being conducted; (2) accessibility of the

firearm; (3) the type of the weapon; (4) whether the weapon is stolen; (5) the

status of the possession (legitimate or illegal); (6) whether the gun is loaded; (7)

proximity to the drugs or drug profits; and (8) the time and circumstances under

which the gun is found. Id. (internal quotation marks omitted).

      To prove the § 924(c) offense as charged in Count 3, the government must

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establish that Garcia (1) knowingly, (2) possessed a firearm, (3) in furtherance of a

drug-trafficking crime. United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir.

2008). We have not required that the drugs and firearm be located in the same

compartment. See United States v. Suarez, 313 F.3d 1287, 1292-93 (11th Cir.

2002) (upholding a conviction where officers recovered loaded firearms and

ammunition that was loose in a bag in the master bedroom closet in the

defendant’s residence because the residence had been used to store cocaine).

      Viewed in the light most favorable to the government, we conclude from the

record that the evidence established a nexus between the firearm and the drug

conspiracy to show that the firearm was possessed “in furtherance” of a drug-

trafficking crime and was sufficient to support Garcia’s § 924(c) conviction.

Thus, we affirm Garcia’s conviction.

      AFFIRMED.




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