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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                             No. 17-11800

                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 0:16-cr-60213-WJZ-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                      versus

QUINCEY LOCKHART,
a.k.a. Slap,
CARL WILLIAMS,
a.k.a. Foot,
                                                     Defendants - Appellants.

                      ________________________

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

                             (May 4, 2018)

Before MARCUS, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:
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      Quincey Lockhart appeals his 180-month sentence imposed after a jury

found him guilty of one count of conspiracy to possess a controlled substance with

intent to distribute, in violation of 21 U.S.C. § 846, and five counts of possession

of a controlled substance with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1). Carl Williams likewise appeals his 97-month sentence imposed after a

jury found him guilty of one count of conspiracy to possess a controlled substance

with intent to distribute and one count of possession of a controlled substance with

intent to distribute. As to their convictions, Lockhart and Williams argue (1) that

the district court abused its discretion by admitting evidence of prior narcotics

convictions and (2) that the government failed to introduce sufficient evidence to

support their conspiracy convictions. As to their sentences, Lockhart and Williams

contend that the district court erred in applying (1) a two-level enhancement for

possessing a dangerous weapon and (2) a two-level enhancement for maintaining a

premises for the purpose of manufacturing or distributing a controlled substance.

      After careful review, and finding no error, we affirm. The facts are known

to the parties; we will not repeat them here.


                                           I


      We review a district court’s evidentiary rulings for abuse of discretion.

United States v. Kahn, 794 F.3d 1288, 1293 (11th Cir. 2015). Where a party


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asserts errors for the first time on appeal, we will not reverse “unless they

constitute ‘plain error’ amounting to a miscarriage of justice seriously affecting the

fairness, integrity, or public reputation of the proceeding.” United States v. Wright,

392 F.3d 1269, 1277 (11th Cir. 2004).

      Federal Rule of Evidence 404(b) forbids the admission of evidence of “a

crime, wrong, or other act . . . to prove a person’s character in order to show that

on a particular occasion the person acted in accordance with the character.” Fed.

R. Evid. 404(b). Such evidence, however, may be admissible for other purposes,

such as proof of intent and absence of mistake. Id. To be admissible, Rule 404(b)

evidence must (1) be relevant to an issue other than the defendant’s character, (2)

be sufficiently proven to allow a jury to find that the defendant committed the

extrinsic act, and (3) possess probative value that is not substantially outweighed

by its undue prejudice under Fed. R. Evid. 403. United States v. Barron-Soto, 820

F.3d 409, 417 (11th Cir. 2016).

      Federal Rule of Evidence 403 permits a court to “exclude relevant evidence

if its probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

Rule 403 “is an extraordinary remedy which the district court should invoke

sparingly, and the balance should be struck in favor of admissibility.” United


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States v. Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011) (quotation marks omitted).

In reviewing issues under Rule 403, we “look at the evidence in a light most

favorable to its admission, maximizing its probative value and minimizing its

undue prejudicial impact.” United States v. Edouard, 485 F.3d 1324, 1344 n.8

(11th Cir. 2007) (quotation marks omitted).

      Relevant circumstances for determining if the danger of unfair prejudice

substantially outweighs the probative value of Rule 404(b) evidence include

whether the defendant would contest the issue of intent, the overall similarity of

the extrinsic act and the charged offense, and the temporal remoteness between the

extrinsic act and the charged offense. United States v. Jernigan, 341 F.3d 1273,

1282 (11th Cir. 2003). We have held that jury instructions regarding the proper

use of Rule 404(b) evidence can minimize the evidence’s prejudicial impact.

United States v. Brown, 665 F.3d 1239, 1247 (11th Cir. 2011).

                                          A

      As an initial matter, both Lockhart and Williams assert for the first time on

appeal that the Rule 404(b) evidence should have been excluded because it was too

remote in time to be relevant and misled the jury into believing that they had been

involved in drug crime for an extended period of time. Because the defendants

raise the remoteness issue for the first time on appeal, we review it only for plain

error. The defendants have not demonstrated that it was plain error to admit


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evidence of their prior convictions on the ground that they were too remote in time.

We have held that inquiries into temporal remoteness are fact-specific. United

States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005). Here, Lockhart and

Williams assert that because their prior convictions were approximately ten and six

years old, respectfully, they were too remote. But we have upheld the admission of

evidence even more remote in time than the defendants’ prior convictions. See id.

at 1312 (citing United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995)).

Accordingly, the district court here did not plainly err in admitting the evidence of

other acts under the theory that they were too remote in time to be probative.

                                           B

      More generally, the district court did not abuse its discretion by allowing

Rule 404(b) evidence of the defendants’ prior convictions. Because both

defendants pleaded not guilty to the charges against them, including the conspiracy

charge, their intent became a material issue. Barron-Soto, 820 F.3d at 417. Both

defendants acknowledge that a “mere presence” defense puts knowledge and intent

at issue. Furthermore, both defendants’ prior convictions were for conduct similar

to that charged in the current case. Finally, the district court here explained to the

jury how to properly use Rule 404(b) evidence following the testimony of each

witness testifying about the prior acts and again during the jury instructions, which




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we have held can minimize any prejudicial impact of the evidence. Brown, 665

F.3d at 1247.

                                          II

      We ordinarily review the sufficiency of the evidence de novo, viewing the

record in the light most favorable to the government and drawing all reasonable

inferences in favor of the verdict. United States v. Feliciano, 761 F.3d 1202, 1206

(11th Cir. 2014). We will uphold the conviction “unless a rational fact-finder

could not have found the defendant guilty under any reasonable construction of the

evidence.” Id. (quotation omitted).

      In reviewing the sufficiency of the evidence, we ask whether, after viewing

the evidence in the light most favorable to the government, with all reasonable

inferences and credibility choices made in its favor, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. United

States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009). “It is not necessary that

the evidence exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, provided a reasonable trier

of fact could find that the evidence establishes guilt beyond a reasonable doubt.”

United States v. Martinez, 763 F.2d 1297, 1302 (11th Cir. 1985) (quotation marks

omitted).




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      To be guilty of conspiracy to possess a controlled substance with intent to

distribute, the government must prove (1) that a conspiracy or agreement existed

between the defendants or the defendant and others, (2) that the defendant knew

the essential object of the conspiracy to possess a controlled substance with intent

to distribute, and (3) that defendant knowingly and voluntarily participated in the

conspiracy. 21 U.S.C. § 846; United States v. Westry, 524 F.3d 1198, 1212 (11th

Cir. 2008).

      The district court did not err in allowing the conspiracy charges against

Lockhart and Williams to go to the jury. After viewing the evidence in the light

most favorable to the government, and with all reasonable inferences drawn in its

favor, it is possible that the jury could have found beyond a reasonable doubt that

both defendants engaged in a conspiracy to possess a controlled substance with

intent to distribute. For instance, the government presented evidence at trial—

   • that Williams and Lockhart worked together, with Williams acting as
     security for Lockhart;

   • that an undercover agent informed Williams that he wanted to “re-up” and
     then later purchased those drugs from Lockhart;

   • that on at least one occasion, Williams stated “we have that good too,”
     indicating that he could also sell an undercover agent marijuana;

   • that Williams refused to sell an undercover agent a gun, stating, “I can’t sell
     that. That’s our only one”; and




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   •   that on at least one occasion, Lockhart’s and Williams’s co-defendant,
       Marquis Brickley, acted as a go-between for Lockhart and an undercover
       agent, passing the drugs and money between the two.

       Viewing the evidence in the light most favorable to the government—and

the verdict—it is not improbable that the jury found that both defendants were

engaged in a conspiracy to possess a controlled substance with the intent to

distribute. Spoerke, 568 F.3d at 1244.


                                         III


       We review a district court’s interpretation and application of the Sentencing

Guidelines de novo and its factual findings for clear error. United States v. Smith,

480 F.3d 1277, 1278 (11th Cir. 2007). Factual findings are clearly erroneous only

when the appellate court “is left with a definite and firm conviction that a mistake

has been committed.” United States v. Barrington, 648 F.3d 1178, 1195 (11th Cir.

2011) (quotation marks omitted). There is no clear error in cases where the record

supports the district court’s findings. United States v. Petrie, 302 F.3d 1280, 1290

(11th Cir. 2002).

                                         A

       Pursuant to U.S.S.G. § 2D1.1(b)(1), if the defendant possessed a dangerous

weapon (including a firearm) during the commission of the charged offense the

base offense level is increased by two levels. U.S.S.G. § 2D1.1(b)(1). The


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guideline commentary states that “the enhancement should be applied if the

weapon was present, unless it is clearly improbable that the weapon was connected

with the offense.” U.S.S.G. § 2D1.1, comment. (n. 11(A)).

      The government must show that “the firearm was present at the site of the

charged conduct” or that “the defendant possessed a firearm during conduct

associated with the offense of conviction.” United States v. Stallings, 463 F.3d

1218, 1220 (11th Cir. 2006). Although “‘[e]xperience on the trial and appellate

benches has taught that substantial dealers in narcotics keep firearms on their

premises as tools of the trade,’ the mere fact that a drug offender possesses a

firearm does not necessarily give rise to the firearms enhancement.” Id. at 1221

(citation omitted). Rather, the government must show some nexus, beyond mere

possession, between the firearms and the drug crime. Id. Once the government

meets this burden, however, the evidentiary burden shifts to the defendant to

demonstrate that a connection between the weapon and the offense was “clearly

improbable.” Id. at 1220 (quotation marks omitted).

      Critically here, we have held that the enhancement may be applied when the

firearm is possessed by a co-conspirator. United States v. Fields, 408 F.3d 1356,

1359 (11th Cir. 2005). In that circumstance, “the government must prove by a

preponderance of the evidence: (1) the possessor of the firearm was a co-

conspirator, (2) the possession was in furtherance of the conspiracy, (3) the


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defendant was a member of the conspiracy at the time of possession, and (4) the

co-conspirator possession was reasonably foreseeable by the defendant.” Id.

      The district court did not err in applying § 2D1.1(b)(1)’s two-level

enhancement for possession of a dangerous weapon. Both defendants assert that

because the jury returned not guilty verdicts as to their own possession-of-a-

firearm charges, and because the government failed to introduce independent

evidence that either personally possessed a weapon, they cannot be subject to the

enhancement. That is incorrect. As this Court held in Fields, a defendant can be

subject to the two-level enhancement if the government proves that a co-

conspirator possessed a weapon during the conduct that underlies the charged

offense. 408 F.3d at 1359. As the district court here concluded during Williams’s

sentencing hearing, and then reiterated during Lockhart’s hearing, Fields is

applicable to this case. In fact, both defendants concede that their co-defendant

Brickley possessed a firearm during the commission of the charged offenses. The

government presented sufficient evidence to prove (1) that the firearm was present

at the site of the offenses and (2) that the gun was important to Brickley and

Williams, in that they refused to sell it to the undercover because it was their “only

one.” The government therefore sufficiently proved that the gun was both present

at the site of the charged conduct and that there was a nexus between the gun and

the charged offenses. Stallings, 463 F.3d at 1220–21. The burden then shifted to


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Lockhart and Williams to demonstrate that the connection between the weapon and

offense was “clearly improbable,” which they failed to do. Id. at 1220.

Accordingly, application of the two-level enhancement for possession of a

dangerous weapon was not improper.


                                            B


        Pursuant to U.S.S.G. § 2D1.1(b)(12), “[i]f the defendant maintained a

premises for the purpose of manufacturing or distributing a controlled substance” a

two-level enhancement applies. U.S.S.G. § 2D1.1(b)(12). The commentary states

that—

               Among the factors the court should consider in determining
        whether the defendant ‘maintained’ the premises are (A) whether the
        defendant held a possessory interest in (e.g., owner or rented) the
        premises and (B) the extent to which the defendant controlled access
        to, or activities at, the premises.

               Manufacturing or distributing a controlled substance need not
        be the sole purpose for which the premises was maintained, but must
        be one of the defendant’s primary or principle uses for the premises,
        rather than one of the defendant’s incidental or collateral uses for the
        premises. In making this determination, the court should consider
        how frequently the premises was used by the defendant for
        manufacturing or distributing a controlled substance and how
        frequently the premises was used by the defendant for lawful
        purposes.

U.S.S.G. § 2D1.1(b)(12), comment. (n. 17). We recently upheld the application of

a two-level enhancement under § 2D1.1(b)(12) where (1) one of the primary


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purposes of the defendant’s barbershop salon was the distribution of drugs and (2)

multiple witnesses saw tools of the drug trade and were offered drugs for purchase

on the premises. United States v. George, 872 F.3d 1197, 1206 (11th Cir. 2017).

In George, we held, alternatively, that the defendant’s apartment could be used for

the two-level enhancement where a witness saw tools of the trade and watched a

narcotics purchase take place there, despite the defendant’s insistence that he lived

in the apartment and there was only one instance of drugs being purchased there.

Id. Applying a “totality of the circumstances” approach, we held that “a premises

can have more than one primary use, so long as the drug activity is more than

incidental or collateral.” Id. at 1206 (quotation marks omitted).

      Here, the district court did not err in applying U.S.S.G. § 2D1.1(b)(12)’s

two-level enhancement. The court found that the apartment in question was a

“crack house” with the primary purpose of manufacturing, selling, and storing

controlled substances. Lockhart and Williams both assert that because the

apartment was not their residence, and because the government failed to prove that

they had done repairs or supplied food for the apartment, the totality-of-the-

circumstances indicates that the enhancement does not apply. But a possessory

interest is only one factor that bears on the application of the enhancement.

U.S.S.G. § 2D1.1(b)(12), comment. (n. 17). Other facts here provide ample

support for the district court’s application. As to Lockhart, for instance, he invited


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the undercover agent to the apartment to sell him narcotics, he instructed the agent

on at least one occasion to leave the apartment and wait outside, and he was

allowed in the kitchen when others were not. As to Williams, the agent testified

that he was sleeping at the apartment and that when the warrant was executed, it

was read to Williams. While it may be true (or at least unclear) that Lockhart and

Williams did not rent or lease the apartment, they clearly frequented the apartment

for the purpose of selling narcotics and that purpose was not incidental or collateral

to their presence there. George, 872 F.3d at 1206. Accordingly, the district court

did not err in applying the two-level enhancement.

      AFFIRMED.




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