              Case: 18-11312    Date Filed: 03/25/2019   Page: 1 of 7


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-11312
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 9:17-cr-80082-KAM-2



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JON KYLE FRENCH,
ALLEN JAMES SWEETENBERG,

                                                           Defendants-Appellants.

                          ________________________

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

Before WILLIAM PRYOR, GRANT and ANDERSON, Circuit Judges.

PER CURIAM:

      Allen Sweetenberg and John French appeal their convictions and sentences

arising from their armed theft of marijuana. Sweetenberg challenges the denial of
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his motion for a judgment to acquit him of possessing with intent to distribute a

controlled substance, 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2, and the two-level

enhancement of his base offense level for possession of a firearm, United States

Sentencing Guidelines Manual § 2D1.1(b) (Nov. 2016). French challenges two

evidentiary rulings and the use of his prior convictions for robbery, Fla. Stat.

§ 812.13(1), to enhance his sentence under the Armed Career Criminal Act, 18

U.S.C. § 924(e). We affirm.

      We apply four standards of review in this appeal. We review the denial of a

motion for a judgment of acquittal de novo and draw all inferences from the

evidence in favor of the government. See United States v. Evans, 473 F.3d 1115,

1118 (11th Cir. 2006). We also review de novo the application of the Sentencing

Guidelines to findings of fact, which we review for clear error. See United States v.

Pham, 463 F.3d 1239, 1245 (11th Cir. 2006). “Evidentiary rulings by the district

court are reviewed for an abuse of discretion.” United States v. Spoerke, 568 F.3d

1236, 1244 (11th Cir. 2009). But issues not presented to the district court are

reviewed for plain error. See United States v. Straub, 508 F.3d 1003, 1101 (11th

Cir. 2007). Under that standard, the defendant must prove that error occurred that

is plain and that affected his substantial rights. Id. We review de novo whether a

prior conviction counts as a predicate offense under the Armed Career Criminal

Act. United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014).


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      The district court did not err in denying Sweetenberg’s motion for a

judgment of acquittal. Testimony from Sweetenberg’s girlfriend, Lashareesha

Mays, his victims, Kason Lindor and Velton Riggon, and the investigator who

searched Mays’s car, Daniel Bauder of the Riviera Beach Police Department,

proved that Sweetenberg possessed a backpack that he knew contained marijuana.

See 21 U.S.C. § 841(a)(1). The jury could have reasonably found that Sweetenberg

knowingly took possession of marijuana based on the evidence that he witnessed

French’s negotiations with Lindor and Riggon, that he pilfered their backpack

containing marijuana, and that he returned to Mays’s car with the backpack after

asking her to drive him and French to a “transaction,” which was a word that

Sweetenberg used routinely to refer to a drug deal. See United States v. Derose, 74

F.3d 1177, 1185 (11th Cir. 1996) (defining actual possession as “physical

possession or . . . actual personal dominion over the thing allegedly possessed”).

The jury also could have reasonably found that Sweetenberg knew the bag

contained marijuana based on its “obvious” smell detected by Investigator Bauder

and his discovery of paraphernalia commonly used to package marijuana for sale

near Sweetenberg’s wallet. And the jury could consider as further consciousness of

guilt the evidence that Sweetenberg fled on foot when he saw a police car. See

United States v. Borders, 693 F.2d 1318, 1324 (11th Cir. 1982). Ample evidence




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supported the decision to deny Sweetenberg’s motion and to submit the case to the

jury.

        Even if we were to assume that the district court erred by increasing

Sweetenberg’s base offense level based on French’s possession of a firearm in

connection with drug trafficking, U.S.S.G. § 2D1.1(b)(1), that error was harmless

because it did not affect Sweetenberg’s sentence. See Fed. R. Crim. P. 52(a) (“Any

error, defect, irregularity or variance which does not affect substantial rights shall

be disregarded”). The addition of the two-point enhancement to Sweetenberg’s

base offense level of 8, U.S.S.G. § 2D1.1(c), made no difference because the

district court adjusted his offense level to 17 for being a career offender, id.

§ 4B1.1(b)(6).

        Errors in admitting a photograph of French’s tattoo over his objection about

its prejudicial effect and in denying his motion for a mistrial after being asked

twice whether he was “a member of the black mafia family” were, at most,

harmless in the light of the overwhelming evidence of his guilt. See United States

v. Phaknikone, 605 F.3d 1099, 1109 (11th Cir. 2010). Testimony and forensic

evidence proved that French unlawfully possessed a firearm, 18 U.S.C. § 922(g),

used the firearm in furtherance of a drug trafficking crime, id. § 924(c), possessed

with intent to distribute marijuana, 21 U.S.C. § 841(a)(1), and conspired to tamper

with government witnesses, 18 U.S.C. § 1512. Testimony from Mays, Lindor, and


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Riggon proved that French forcibly took possession of more than 1,000 grams of

marijuana using a long-barreled revolver, which he tossed out the window of

Mays’s vehicle while they attempted to outrun the police. The police discovered a

revolver on the route Mays drove during the high-speed chase that matched the

firearm described by Riggon and that was covered in French’s genetic material.

See 18 U.S.C. §§ 922(g), 924(c); 21 U.S.C. § 841(a)(1). Audio recordings of

telephone calls that French made from jail also proved that he conspired to have

cohorts entice or intimidate government witnesses to change their stories or to

refuse to testify against him. See 18 U.S.C. § 1512(b)(1), (k). Moreover, because

French decided to testify, the jury was entitled to disbelieve his story that two

strangers committed the robbery and to consider his testimony as substantive

evidence of his guilt. See United States v. Brown, 53 F.3d 312, 314 (11th Cir.

1995). In the light of the substantial evidence of French’s guilt, the photograph of

his tattoo and the two questions about his gang membership had no “substantial

and injurious effect or influence” on the jury. See Phaknikone, 605 F.3d at 1109.

And the district court further eradicated any possible prejudice caused by the

references to the gang by instructing the jury to “disregard the question . . . about

any affiliation that [French] might have.” See United States v. Lopez, 590 F.3d

1238, 1256 (11th Cir. 2009).




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       French argues, for the first time, that the government used the photograph of

his tattoo impermissibly to portray him as a violent person, see Fed. R. Evid.

404(b), but the admission of the photograph did not constitute plain error. We

cannot say that the photograph affected French’s substantial rights when the

government admitted without objection other evidence of French’s penchant for

violence. See Straub, 508 F.3d at 1101. Lindor and Riggon testified that French

struck Riggon in the head with the revolver without cause. And the jury heard

audio recordings of French’s telephone calls from jail in which he bragged that he

was “gonna put a check on a niggas head,” and would “play this on the inside” to

“make them niggas [Lindor and Riggon] do the right thing,” and that he had “to

push their hand” by “run[ning] them . . . on some aggressive shi*,” “pop right up

on they ass . . . [and] scare the shi* out of them,” and let them know they were “on

[his] list.”

       French concedes that his challenge to the use of his prior convictions to

enhance his sentence is foreclosed by binding precedent. We held in United States

v. Fritts, 841 F.3d 937, 940 (11th Cir. 2016), that a conviction for robbery under

section 912.13 of the Florida Statutes categorically qualifies as a violent felony

under the elements clause of the Armed Career Criminal Act. And recently the

United States Supreme Court reached the same conclusion in Stokeling v. United




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States, 139 S. Ct. 544 (2019). The district court correctly counted French’s prior

convictions as predicate offenses under the Act.

      We AFFIRM Sweetenberg’s and French’s convictions and sentences.




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