     Case: 11-51162       Document: 00512051098         Page: 1     Date Filed: 11/13/2012




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

                                                                            FILED
                                                                        November 13, 2012
                                     No. 11-51162
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

LOVELL THOMAS,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:11-CR-110-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Lovell Thomas pleaded guilty to one count of conspiring to distribute and
to possess with intent to distribute less than 50 kilograms of marijuana and one
count of possessing with intent to distribute less than 50 kilograms of
marijuana. He proceeded to trial on one count of possessing a firearm in
furtherance of a drug trafficking crime and was found guilty by a jury. He
received a 12-month prison sentence on the drug counts and a consecutive 60-
month prison term on the firearms count.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-51162

      Thomas first contends that the evidence presented at trial was insufficient
to prove that he possessed a firearm in furtherance of a drug trafficking crime.
Where a defendant has preserved his sufficiency-of-the-evidence argument by
moving for a judgment of acquittal at the close of the Government’s case and at
the close of all of the evidence, we review the issue de novo, viewing the evidence
in the light most favorable to the verdict and determining whether a rational
juror could have found the elements of the offense proved beyond a reasonable
doubt. United States v. Mudekunye, 646 F.3d 281, 285 (5th Cir. 2011). On the
other hand, where the defendant has failed to make one or both of the required
motions at trial, this court reviews a challenge to the sufficiency of the evidence
for a manifest miscarriage of justice and will reverse only if the record is devoid
of evidence of the defendant’s guilt. United States v. Aguilar, 503 F.3d 431, 435
(5th Cir. 2007); United States v. Green, 293 F.3d 886, 895 (5th Cir. 2002). It is
unclear whether Thomas preserved this issue. He orally moved for a judgment
of acquittal at the close of the Government’s case-in-chief but did not make an
oral motion at the close of all of the evidence. The record contains a written
motion for a judgment of acquittal, but it is not evident if the motion was
submitted contemporaneously with the oral motion or at the close of all of the
evidence. However, we need not resolve this question because even if Thomas
preserved this issue, he cannot succeed.
      A defendant carries a firearm “in furtherance of a drug-trafficking offense
when it furthers, advances, or helps forward that offense.” United States v.
London, 568 F.3d 553, 559 (5th Cir. 2009) (internal quotation marks and citation
omitted). In determining whether this element has been proved, we consider
various factors including “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.” Id. (internal quotation marks and citation omitted).

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                                  No. 11-51162

      The Government presented evidence that Thomas packaged large
quantities of hydroponic marijuana—an expensive, potent form of the drug—in
his house. The two firearms that were described in the indictment were found
in Thomas’s bedroom—one behind the door and one next to the vanity—and
testimony showed that they were placed in strategic locations to make them
easily accessible if Thomas were to be threatened. Both guns were described by
a Government witness as tactical weapons. One was designed to be used in
combat by Russian special forces, and the other had a slew of features and
attachments that are used by military law enforcement. One of the guns was
loaded and, though there was no round in the chamber, the gun could quickly be
made fully functional.    The other gun was not loaded, but the magazine
belonging to it was found three feet away from the gun. No drugs were found in
the room with the guns, but traces of marijuana were found all over the house
and an officer testified that the entire house was used for packaging drugs.
Moreover, the guns were found in the same room as a safe containing over
$7,000, which the jury could have inferred constituted drug proceeds. Though
it does not appear that any of the guns was stolen or that it was illegal for
Thomas to possess them, most of the factors support the finding that the guns
were possessed in furtherance of his drug trafficking crimes.
      Thomas also argues that the district court erred in denying him a
reduction in his offense level for accepting responsibility for the two drug
offenses. See U.S.S.G. § 3E1.1(a). Though he pleaded guilty to these charges,
Thomas did not admit all of the conduct relevant to his offenses, namely that he
possessed a firearm in furtherance of the drug crimes, see United States v.
Pierce, 237 F.3d 693, 694 (5th Cir. 2001), and did not demonstrate “sincere
contrition regarding the full extent” of his criminal activities, United States v.
Diaz, 39 F.3d 568, 572 (5th Cir. 1994) (internal quotation marks and citation
omitted) (emphasis in original). Thus, the district court’s determination is not



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without foundation. See United States v. Rudzavice, 586 F.3d 310, 315 (5th Cir.
2009).
      The judgment of the district court is AFFIRMED.




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