                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 06a0030p.06

                       UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                      X
                                 Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                       -
                                                       -
                                                       -
                                                           No. 04-1758
           v.
                                                       ,
                                                        >
 JOHN JOSEPH COFFEE, JR.,                              -
                              Defendant-Appellant. -
                                                      N
                       Appeal from the United States District Court
                      for the Eastern District of Michigan at Detroit.
                   No. 03-80165—Nancy G. Edmunds, District Judge.
                                      Submitted: December 1, 2005
                                  Decided and Filed: January 20, 2006
               Before: SILER and GRIFFIN, Circuit Judges; KATZ, District Judge.*
                                            _________________
                                                 COUNSEL
ON BRIEF: Stuart W. Harris, KEGLER, BROWN, HILL & RITTER, Columbus, Ohio, for
Appellant. Elizabeth A. Stafford, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
                                            _________________
                                                OPINION
                                            _________________
        GRIFFIN, Circuit Judge. Defendant John Joseph Coffee, Jr., was convicted by a jury of
possession with intent to distribute marijuana and cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), and of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
The district court denied defendant’s motion for judgment of acquittal pursuant to FED. R. CRIM. P.
29. Defendant now appeals, alleging that (1) the district court erred in denying his motion to
suppress evidence because the search warrant for the premises was issued without probable cause,
(2) the evidence was insufficient for a rational trier of fact to find defendant guilty beyond a
reasonable doubt, and (3) he is entitled to resentencing under United States v. Booker, 125 S. Ct. 738
(2005). For the reasons set forth below, we affirm defendant’s convictions, but vacate defendant’s
sentences and remand for resentencing in light of Booker.



        *
          The Honorable David A. Katz, United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                       1
No. 04-1758           United States v. Coffee                                                   Page 2


                                                   I.
        Defendant’s convictions arose out of the January 30, 2003, search of a home which defendant
rented at 26868 Penn, Inkster, Michigan. On that date, law enforcement officers from the Metro
Street Enforcement Team (“MSET”) executed a search warrant for the above address. Following
the search, defendant fled to Illinois, where he stayed until his arrest in June 2003.
        The circumstances leading to the search of the above address were described at trial by the
MSET officers. On January 29, 2003, the MSET organized and executed a controlled purchase of
cocaine base from 26868 Penn with the assistance of a confidential informant (“CI”). The officers
had received information from the CI that a male known as “J” sold narcotics out of that house.
Prior to the purchase, MSET Officer Shawn Adams searched the CI to make sure that he did not
have any narcotics or currency on his person and then gave the CI $20 in U.S. currency. The MSET
officers then watched as the CI approached 26868 Penn and entered the house. The CI was wearing
a transmitter; thus, the officers were able to hear the CI’s conversation with the seller and the voices
of children in the background. Officer Adams and another MSET officer testified that defendant’s
voice matched that of the person who sold the cocaine to the CI. When the CI exited the house, he
was accompanied by defendant, who then entered a vehicle and left the area. The officers followed
the CI to a prearranged location, where the informant handed over .3 grams of a substance which
field-tested positive for cocaine base.
        On the next day, January 30, 2003, Officer Adams secured a search warrant for 26868 Penn
and the search was carried out that same day. Officer Adams, accompanied by five other officers
and a drug detection dog, knocked on the door and announced their presence, but found no one in
the house. The dog indicated the presence of narcotics in a Crown Royal bag on a television stand
in the northwest bedroom of the house. The bag contained twenty-eight packages of marijuana,
totaling thirty-two grams. A further search of the closet in the northwest bedroom revealed an
electronic scale, a .22 caliber rifle and a box of .22 caliber bullets, and two loaded revolvers located
in the pockets of work shirts in the closet. One of the shirts was embroidered with the name “John,”
and the other was labeled “Coffee.” In addition, officers found numerous documents, including bills
and court documents, bearing defendant’s name and address, in a file cabinet in the closet. A
collage of photographs displaying pictures of defendant, his children, and other close family
members was also noted in the northwest bedroom.
        The dog indicated the presence of narcotics in some blinds in the northeast bathroom, and
eight individual bags of cocaine base, totaling 7.6 grams, were found in the top bracket of the
window blind.
        At trial, defendant presented several witnesses in his defense. Defendant did not dispute that
he rented the residence at 26868 Penn in Inkster; however, through the testimony of his witnesses,
he attempted to show that he was not in Michigan in January 2003, but in fact had moved to
Freeport, Illinois, well before the January 30th search, and that several other individuals resided or
were present at 26868 Penn on the dates in question.
        On January 23, 2004, the jury convicted defendant of the charged offenses. On May 17,
2004, the district court sentenced defendant to ninety-seven months’ imprisonment on each count,
to be served concurrently. Defendant now timely appeals.
                                                  II.
       Defendant first contends that the district court erred in denying his motion to suppress
evidence seized during the search of his residence. He asserts that Officer Adams’ affidavit
submitted in support of the search warrant is deficient in several material respects; specifically, it
purportedly fails to adequately establish the veracity or reliability of the unnamed CI and does not
No. 04-1758            United States v. Coffee                                                       Page 3


sufficiently corroborate the CI’s allegations of illegal activity so as to provide the requisite probable
cause for issuance of the search warrant.
        When reviewing a district court’s ruling on a motion to suppress, we will reverse findings
of fact only if they are clearly erroneous. United States v. Galloway, 316 F.3d 624, 628 (6th Cir.
2003). “[L]egal conclusions as to the existence of probable cause are reviewed de novo.” United
States v. Combs, 369 F.3d 925, 937 (6th Cir. 2004) (citation omitted). “When the district court has
denied the motion to suppress, we review all evidence in a light most favorable to the Government.”
Galloway, 316 F.3d at 628 (citation omitted).
        The Fourth Amendment provides that “no warrants shall issue but upon probable cause,
supported by oath or affirmation . . . .” U.S. CONST. amend. IV. Probable cause arises if there are
“reasonable grounds for belief, supported by less than prima facie proof but more than mere
suspicion,” United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990) (citation omitted), and “[i]n
order for a judicial officer to issue a warrant, law enforcement officials must present evidence from
which the magistrate judge can conclude from the totality of the circumstances, ‘including the
“veracity” and “basis” of knowledge of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular place.’” United
States v. Williams, 224 F.3d 530, 532 (6th Cir. 2000) (quoting Illinois v. Gates, 462 U.S. 213, 238
(1983)). Search warrant affidavits must be judged based on the totality of the circumstances, rather
than line-by-line scrutiny. United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004); United
States v. Greene, 250 F.3d 471, 479 (6th Cir. 2001). In this regard, affidavits for search warrants:
        Must be tested and interpreted by magistrates and courts in a commonsense and
        realistic fashion. They are normally drafted by nonlawyers in the midst and haste of
        a criminal investigation. Technical requirements of elaborate specificity once
        exacted under common law pleadings have no proper place in this area. A grudging
        or negative attitude by reviewing courts toward warrants will tend to discourage
        police officers from submitting their evidence to a judicial officer before acting.
United States v. Ventresca, 380 U.S. 102, 108 (1965).
       Review of the sufficiency of the evidence supporting probable cause is limited to the
information presented in the four corners of the affidavit. United States v. Frazier, 423 F.3d 526,
531 (6th Cir. 2005). A magistrate judge’s determination of probable cause should be paid great
deference by a reviewing court. United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc).
Thus, “an issuing magistrate’s discretion should only be reversed if it was arbitrarily exercised.”
Id.
        Where, as here, the bulk of the information in the affidavit comes from a confidential source,
a court must consider the veracity, reliability, and the basis of knowledge for that information as part
of the totality of the circumstances analysis. Frazier, 423 F.3d at 532. “While independent
corroboration of a confidential informant’s story is not a sine qua non to a finding of probable
cause, . . . in the absence of any indicia of the informant[s’] reliability, courts insist that the affidavit
contain substantial independent police corroboration.” Id. (citations omitted). “As long as the
issuing judge can conclude independently that the informant is reliable, an affidavit based on the
informant’s tip will support a finding of probable cause.” United States v. McCraven, 401 F.3d 693,
697 (6th Cir. 2005). An affidavit is sufficient “where a known person, named to the magistrate, to
whose reliability an officer attests with some detail, states that he has seen a particular crime and
particular evidence, in the recent past, [such that] a neutral and detached magistrate may believe that
evidence of a crime will be found.” Allen, 211 F.3d at 976. As we recently explained in McCraven,
        Under Allen, while an affidavit must state facts supporting an independent judicial
        determination that the informant is reliable, those facts need not take any particular
No. 04-1758           United States v. Coffee                                                      Page 4


       form. See [Allen, 211 F.3d] at 975-76. The affidavit could state that police
       corroborated significant parts of the informant’s story. Or the affiant could attest
       “with some detail” that the informant provided reliable information in the past. Id.
       at 976. Or there could be other indicia of the informant’s reliability, such as a
       detailed description of what the informant observed first-hand, or the willingness of
       the informant to reveal his or her name. As long as the issuing judge can conclude
       independently that the informant is reliable, an affidavit based on the informant’s tip
       will support a finding of probable cause.
401 F.3d at 697.
         In sum, “an affidavit that supplies little information concerning an informant’s reliability
may support a finding of probable cause, under the totality of the circumstances, if it includes
sufficient corroborating information.” Woosley, 361 F.3d at 927; see also United States v. Tuttle,
200 F.3d 892, 894 (6th Cir. 2000) (noting that “information received from an informant whose
reliability is not established may be sufficient to create probable cause when there is some
independent corroboration by the police of the informant’s information”).
        In the case at hand, the affidavit submitted by Officer Adams set forth in detail his law
enforcement experience and his familiarity with the methods of use, sales, and distribution of
controlled substances in the drug trafficking trade. The affidavit gave a physical description of the
house at 26868 Penn and, with regard to the investigation at issue, stated in pertinent part as follows:
       2. C.I. PG-075 [confidential informant] has made several narcotic purchases from
       the above location [specified as 26868 Penn, Inkster, Michigan]. Within the last
       forty-eight hours Officer Adams met with Pg-075 at a pre-arranged location. Pg-075
       was searched for any controlled substances or U.S. currency with none being found.
       Pg-075 was then issued official MSET pre-recorded funds and followed directly to
       the above location (26868 Penn, Inkster, MI 48141). Pg-075 was going to purchase
       narcotics from the location. Pg-075 was observed entering the residence. A short
       time later Pg-075 was observed exiting the residence and was followed to a pre-
       arranged location. Pg-075 met Officer Adams at the pre-arranged location and
       turned over a suspected rock of crack cocaine. Pg-075 stated that the rock of crack
       cocaine was purchased from inside the location and the rock was purchased from
       Jason, also known as Jay. Pg-075 has purchased narcotics from Jason several times
       in the past. Pg-075 stated that Jason was given official MSET funds in exchange for
       the crack cocaine. Pg-075 was again searched for any controlled substances and or
       U.S. currency with none being found.
       3. The evidence was taken to the MSET office where it was field tested by Officer
       Adams with a positive result for crack cocaine.
       4. The affiant feels that based on the facts and circumstances above and the
       affiant[’s] prior experience that a search of the listed above location will reveal
       narcotics, evidence of narcotic trafficking, or any of the other items listed to be
       searched for.
       5. It is the experience of the affiant that persons in the trafficking of narcotics often
       keep firearms present for the protection of such activity.
         The search warrant was issued by the magistrate on the basis of the above information and
the search of 26868 Penn was carried out on the day after the controlled narcotics purchase. The
district court concluded that, although there were no statements in the affidavit about the reliability
of the CI, Officer Adams’ statements that he set up the controlled buy and took necessary
No. 04-1758            United States v. Coffee                                                     Page 5


precautions before and after the orchestrated purchase adequately corroborated the CI’s information
and, thus, provided sufficient probable cause for the issuance of the search warrant.
         Contrary to defendant’s assertion, the present circumstances are not analogous to United
States v. Laughton, 409 F.3d 744, 747 (6th Cir. 2005), in which we concluded that the search
warrant lacked probable cause because it “failed to make any connection between the residence to
be searched and the facts of criminal activity that the officer set out in his affidavit” and “also failed
to indicate any connection between the defendant and the address given or between the defendant
and any of the criminal activity that occurred there.” No similar deficiency is present in the affidavit
in this case.
         Here, the details of the controlled purchase, and its connection to 26868 Penn, were spelled
out in the affidavit. Officer Adams indicated that the CI “has made several purchases from” 26868
Penn. He further described the controlled purchase that he organized to corroborate the informant’s
information. The CI’s basis of knowledge was his direct purchase of narcotics from defendant; the
purchase was controlled and witnessed by Officer Adams, who searched the CI for money or
contraband, provided the CI with pre-recorded funds, observed the CI enter and exit defendant’s
house, and then observed and tested the crack cocaine the CI purchased from defendant. Under the
totality of the circumstances, Officer Adams’ affidavit adequately corroborated the CI’s information
in this case and did so in a manner endorsed by this circuit in United States v. Pinson, 321 F.3d 558
(6th Cir. 2003), wherein we held that the affidavit at issue showed probable cause because:
        The affidavit stated that the confidential informant was familiar with cocaine from
        “past experience and exposure” and that he had provided information to the police
        in the past which resulted “in the lawful recovery of narcotics.” Furthermore, the
        confidential informant’s basis of knowledge of the criminal activity was that he had
        personally purchased cocaine at 2713 Torbett Street. Unlike Allen, where there was
        no corroboration of the informant’s purchase of drugs, the affidavit in this case
        contained Officer Mackall’s personal observation, his pat down of the informant
        before and after the purchase of the narcotics, and the fact that the drugs purchased
        by the confidential informant were later tested positive for cocaine base. All of this
        information was clearly stated in the affidavit, and the affidavit meets the Allen test.
Pinson, 321 F.3d at 563.
         Although here, unlike Pinson, Adams’ affidavit contains no averments that the informant was
reliable based on prior contacts, the affidavit does state that the CI had made several purchases in
the past from “Jay” at the specified address. The affidavit also contains substantial independent
police corroboration because it details the circumstances of the controlled purchase of the cocaine
base. Thus, as the district court properly determined, a magistrate could conclude, based on the
totality of the circumstances described in Officer Adams’ affidavit, that there was a fair probability
that contraband or evidence of a crime would be found at 26868 Penn. Williams, 224 F.3d at 532.
Accordingly, the warrant issued for defendant’s rented premises was supported by probable cause.
                                                   III.
        Defendant next maintains that the district court erred in denying his motion for judgment of
acquittal under FED. R. CRIM. P. 29. In reviewing a district court’s denial of a motion for judgment
of acquittal on a claim of insufficient evidence, the pertinent inquiry is “‘whether after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’” United States v. Lloyd, 10 F.3d
1197, 1210 (6th Cir. 1993) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). However, if
the evidence “is such that a rational factfinder must conclude that a reasonable doubt is raised, this
No. 04-1758               United States v. Coffee                                                              Page 6


court is obligated to reverse a denial of an acquittal motion.” Id. The district court’s findings of fact
are reviewed for clear error, and circumstantial evidence alone is sufficient to sustain a conviction.
Id. “In reviewing the denial of a motion for acquittal, we must ‘refrain from independently judging
the credibility of witnesses or [the] weight of the evidence.’” United States v. Beverly, 369 F.3d
516, 532 (6th Cir. 2004) (quoting United States v. Walls, 293 F.3d 959, 967 (6th Cir. 2002)). All
reasonable inferences are to be drawn in the government’s favor. Id.
        In order to sustain a conviction for felon in possession of a firearm, the government must
prove: (1) that the defendant had a prior felony conviction; (2) that the defendant knowingly
possessed the firearm, either actually or constructively; and (3) that the firearm had traveled in
interstate commerce. 18 U.S.C. § 922(g)(1); United States v. Caraway, 411 F.3d 679, 682 (6th Cir.
2005). Here, defendant challenges only the sufficiency of the evidence regarding the element of
possession. He contends that other persons occupied the house and there is insufficient evidence
linking him to the firearms.
        “Evidence of either actual or constructive possession of a firearm is sufficient to sustain the
verdict.” United States v. Arnold, — F.3d — , 2005 WL 3315297, at *2 (6th Cir. Nov. 23, 2005)
(citation omitted). The government advanced its case against defendant based on a theory of
constructive possession, which exists “when a person does not have actual possession but instead
knowingly has the power and the intention at a given time to exercise dominion and control over an
object, either directly or through others.” United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.
1973). Constructive possession may be proved by direct or circumstantial evidence and it is not
necessary that such evidence remove every reasonable hypothesis except that of guilt. Id. “Proof
that ‘the person has dominion over the premises where the firearm is located’ is sufficient to
establish constructive possession.” United States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998)
(quoting United States v. Clemis, 11 F.3d 597, 601 (6th Cir. 1993)). “However, presence where a
firearm was found, without more, is insufficient to establish ‘knowledge, power, or intention to
exercise control’ over the firearm.” Arnold, 2005 WL 3315297 at *4 (quoting United States v.
Birmley, 529 F.2d 103, 107-08 (6th Cir. 1976)).
        Defendant’s landlord, Mack Hall, testified that defendant and his friend, Casey Powell, were
the only two adults listed on the lease at 26868 Penn. Powell was not on the original lease, which
began in October 1999, but she was added at a later date and provided the requisite notice to Hall.
At trial, Powell testified that, although she spent time at the house, she never actually moved in;
rather, she resided in Canton, Michigan.
       Mack Hall further testified that defendant’s brother sporadically stayed at 26868 Penn for
a few days at a time. However, defendant’s mother, Melody Coffee, testified that defendant’s
brother lived with her in January 2003 on the dates in question. She confirmed that defendant’s
children lived at 26868 Penn with him, but they were ages five, six, and seven at the time of trial.
The only other adult alleged to have been a resident at 26868 Penn was a person named Ernest
Goodwin; Melody Coffee claimed that Goodwin was defendant’s roommate off and on for a few
years.
       The jury evidently chose to disbelieve Melody Coffee’s testimony that defendant went to
Freeport, Illinois, in September 2002 and stayed until December 2002, that he never stayed at 26868
Penn when he briefly visited in December 2002, and that he returned to Freeport in early January
2003, and, instead, credited the testimony of the landlord that defendant1 was the only full-time
resident at 26868 Penn and did not vacate that address until after the search. Based on the evidence

         1
          According to Hall, on January 30, 2003, neighbors on Penn notified him that a search had occurred at his house
that day. Consequently, Hall paged defendant, who returned the call the following day. Defendant told Hall that
“someone had sold some drugs to someone . . . in the house, and that he [defendant] was not going to return back to the
No. 04-1758               United States v. Coffee                                                               Page 7


of record, the jury had a rational basis for concluding that defendant was the only adult resident
occupying 26868 Penn on the dates in question.
        Additionally, there was ample evidence that defendant constructively possessed the firearms
found at 26868 Penn. Ms. Powell, defendant’s co-lessee, denied that the firearms belonged to her.
According to Officer Adams, Powell informed him on the date of the search that the firearms, which
she believed to be BB guns, belonged to defendant. Moreover, all of the firearms were found in a
closet in the northwest bedroom which was filled exclusively with defendant’s belongings. Indeed,
the two revolvers were found in shirt pockets bearing defendant’s name.
       In Craven, we held that constructive possession of firearms discovered throughout the house
was established where the defendant clearly exercised constructive possession of the house, one of
the guns was found in the master bedroom in which monogrammed men’s shirts bearing the
defendant’s initials were found, the defendant was placed in this room by testimony of a witness,
and the defendant made statements that he collected guns. Craven, 478 F.2d at 1333-34.
         Similarly, in the case at hand, drawing all reasonable inferences in favor of the government,
there was sufficient evidence for a rational trier of fact to conclude that at the time of the search,
defendant had dominion over the house where the firearms were located. The fact that no
identifiable fingerprints were found on either of the revolvers is not determinative, particularly in
light of the testimony of the government’s expert witness, a representative from the Michigan State
Police Latent Print Unit, that fingerprints are rarely identified on firearms, the absence of
fingerprints does not mean that an item has not been touched, and mechanics’ cracked and gouged
hands (defendant was a mechanic) are less likely than those of members of other professions to leave
fingerprints.
       Defendant also maintains that there was insufficient evidence to support his drug conviction.
The elements of a charge of possession with intent to distribute illegal drugs are: (1) the defendant
knowingly, (2) possessed a controlled substance, (3) with intent to distribute. United States v.
Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995) (citing United States v. Peters, 15 F.3d 540, 544 (6th
Cir. 1994)). Defendant alleges that the government failed to prove that he possessed the crack
cocaine and marijuana, or that he intended to distribute those substances. We disagree.
        In addition to the evidence, noted above, that defendant was the only adult living at 26868
Penn, the MSET officers testified that they observed defendant walking out of the house with the
CI after the controlled buy. Officer Adams further testified that defendant’s voice matched that of
the person who was overheard making the sale of cocaine base to the CI. Moreover, with regard to
the marijuana, the twenty-eight bags were found in the northwest bedroom, which contained
possessions and papers belonging to defendant. Ms. Powell, the only other adult listed on the lease,
denied that the marijuana and cocaine base belonged to her. Thus, there was ample evidence that
defendant possessed the drugs that were found at 26868 Penn.
        Finally, the requisite intent to distribute was established not only by evidence that defendant
sold a rock of crack cocaine to the CI during the controlled buy on January 29, but also by the
quantity and manner of packaging of the drugs, and the presence of weapons and equipment (an
electronic scale) for the sale of drugs, found as a result of the search of the premises. The district
court therefore properly denied defendant’s motion for judgment of acquittal.



house.” According to Hall, defendant’s belongings were still in the house at that time, although defendant told Hall that
Casey Powell and his mother, Melody Coffee, would be removing his property from the house. Defendant’s lease was
not set to expire until October 2003. Hall testified that prior to the search, defendant had expressed no plans to move,
and Hall had no plans to evict him.
No. 04-1758           United States v. Coffee                                                  Page 8


                                                IV.
        Finally, defendant has raised a Booker claim regarding his sentence, challenging the district
court’s two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for the possession of firearms in
connection with drug trafficking. See United States v. Booker, 125 S. Ct. 738 (2005); United States
v. Oliver, 397 F.3d 369, 381 n.3 (6th Cir. 2005). The government agrees that this case is
appropriate for resentencing. Therefore, we vacate defendant’s sentence and remand for
resentencing. In so doing, however, we reiterate this Court’s recent admonition, in the wake of
Booker, regarding the issue of judicial factfinding in determining the appropriate sentence under the
advisory Guidelines:
       Booker did not eliminate judicial factfinding. Instead, the remedial majority gave
       district courts the option, after calculating the Guideline range, to sentence a
       defendant outside the resulting Guideline range. Booker, 125 S. Ct. at 764, 769; U.S.
       v. Williams, 411 F.3d 675, 678 (6th Cir. 2005). District courts, in cases such as
       these, must, therefore, calculate the Guideline range as they would have done prior
       to Booker, but then sentence defendants by taking into account all of the relevant
       factors of 28 U.S.C. § 3553, as well as the Guidelines range.
United States v. Stone, et al., — F.3d — (6th Cir., Dec. 23, 2005), 2005 WL 3501590, at *3
(footnote omitted).
                                                 V.
       For the reasons set forth above, we affirm defendant’s convictions, but vacate defendant’s
sentences and remand for resentencing in light of Booker.
