USA v, Legestin Richards

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10695
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEGESTIN RICHARDS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:19-cr-00353-RAH-JTA-1
____________________
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2 Opinion of the Court 21-10695
Before WILSON, NEWSOM , and ANDERSON, Circuit Judges.
PER CURIAM:
Police executed a search warrant at the residence where
Legestin Richards lived with his aunt. During the search, police
officers found multiple firearms throughout the home. Conse-
quently, Richards was indicted for possession of a firearm by a
felon, in violation of 18 U.S.C. § 922(g)(1), and possession of an un-
registered firearm, in violation of 26 U.S.C. §§ 5841, 5861(d), and
5871. After trial, a jury convicted Richards of those counts.
Now, Richards appeals his convictions, as well as his 136-
month total sentence imposed. First, Richards argues that he had
no control over the firearms in the residence where he was located
at the time of his arrest and that no witnesses could place him in
actual possession of the firearms. He asserts that no evidence was
presented at trial to indicate that he was aware of the presence of
the firearms at the time of the search, or that he had a firearm on
his person or attempted to arm himself when he was discovered by
law enforcement. Second, Richards asserts that his 136-month to-
tal sentence is substantively unreasonable. He argues that the dis-
trict court failed to adequately consider that he was under an on-
going threat at the residence and that the government presented
insufficient evidence for his convictions. He also contends that the
district court failed to consider the “simultaneous nature” of the
criminal counts in its decision to impose his sentences consecu-
tively. Furthermore, he asserts that the district court gave undue
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21-10695 Opinion of the Court 3
weight to the Sentencing Guidelines and to the allegation that he
was a member of the alleged gang, the Black Disciples.
I.
We start by reviewing the sufficiency of the evidence as to
the 922(g) count.1 To sustain a conviction under § 922(g)(1), the
government must prove that (1) the defendant was a convicted
felon, (2) the defendant knowingly possessed a firearm, and (3) the
firearm affected or was in interstate commerce.
United States v.
Funches, 135 F.3d 1405, 1406–07 (11th Cir. 1998). The defendant
also must know that he is a prohibited person—here, a felon.
See
Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019);
United States
v. Coats, 8 F.4th 1228, 1234–35 (11th Cir. 2021).
Possession may be either actual or constructive.
United
States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011). Constructive
possession exists when the government “proves, through either di-
rect or circumstantial evidence that the defendant (1) was aware or
knew of the firearm’s presence and (2) had the ability and intent to
later exercise dominion and control over that firearm.”
Id. “A de-
fendant’s presence in the vicinity of a firearm or mere association
1 We review the sufficiency of the evidence in support of a conviction de novo,
“viewing the evidence in the light most favorable to the government and
drawing all reasonable inferences and credibility choices in favor of the jury’s
verdict.”
United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000) (per
curiam).
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4 Opinion of the Court 21-10695
with another who possesses [it] is insufficient” to show possession.
Id.
In
Ochoa, we held that the government presented the jury
with sufficient circumstantial evidence from which it reasonably
could have concluded that the defendant had constructive posses-
sion of ammunition because he exercised dominion and control
over the bedroom in which it was located.
United States v. Ochoa,
941 F.3d 1074, 1105 (11th Cir. 2019)
cert. denied, 140 S. Ct. 2553
(2020). Specifically, the government connected the defendant to
the bedroom through “his phones (one of which had on it a photo
of Ochoa laying on the bed in the bedroom), personal identification
cards, and travel papers bearing his name—all of which were found
in the same bedroom as the ammunition.”
Id. “The fact that other
people had access to or may have also occupied the residence [did]
not make [this] evidence insufficient.”
Id.;
see also United States v.
Molina, 443 F.3d 824, 830 (11th Cir. 2006) (concluding sufficient ev-
idence supported a defendant’s conviction for possession of a fire-
arm in furtherance of a drug trafficking crime because the firearm
was found in the defendant's bedroom and the dresser drawer con-
tained her passport).
Here, the government presented sufficient evidence at trial
that Richards was in constructive possession of the firearms. Rich-
ards’s statements to law enforcement indicated that he had
knowledge of the firearms in the residence and intended to use
them when needed, firearms were discovered in almost every
room of the house, and Richards was discovered within reaching
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21-10695 Opinion of the Court 5
distance of an unregistered firearm. Further, a reasonable jury
could conclude that Richards exercised dominion and control over
the entire residence and particularly the master bedroom where a
handgun was found. The government presented evidence that
Richards’s vehicle was observed at the residence on a daily basis,
Richards stated to law enforcement that he lived there with his
aunt, and his ID, work badge, prescription pills, and homework
were located in the master bedroom. Accordingly, because there
was ample evidence to support the jury’s verdict, we affirm Rich-
ards’s conviction on the 922(g) count.
As to his conviction for possession of an unregistered fire-
arm, Richards only fleetingly challenged the denial of his motion
for a judgment of acquittal. Because he only raised that issue in
passing, with no supporting law or argument, he has abandoned it.
See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003) (“[A] party seeking to raise a claim or issue . . . must plainly
and prominently so indicate . . . At the very least, he must devote
a discrete, substantial portion of his argumentation to that issue.
Otherwise, the issue—even if properly preserved at trial—will be
considered abandoned.”).
But, even if we were to review the district court’s § 5861(d)
decision, it would only be for plain error,
see United States v.
Baston, 818 F.3d 651, 664 (11th Cir. 2016) (holding that when the
defendant raises a claim challenging the sufficiency of the evidence
on a ground not argued below, the new ground will be reviewed
for plain error only), and the district court’s denial of a motion for
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6 Opinion of the Court 21-10695
judgment of acquittal “will be upheld if a reasonable trier of fact
could conclude that the evidence establishes the defendant’s guilt
beyond a reasonable doubt.”
Rodriguez, 218 F.3d at 1244. Under
26 U.S.C. § 5861(d), it is “unlawful for any person . . . to . . . possess
a firearm which is not registered to him in the National Firearms
Registration and Transfer Record.” 26 U.S.C. § 5861(d);
see also id.
§§ 5871 (providing the penalties for this federal offense), and
5841(e) (requiring a person possessing a firearm to retain proof of
registration). For the reasons explained above, a reasonable trier
of fact could conclude that Richards is guilty beyond a reasonable
doubt with respect to his possession of an unregistered firearm.
II.
We also find that the district court’s sentence was substan-
tively reasonable.2
The district court must impose a sentence that is “sufficient,
but not greater than necessary, to comply with the purposes” listed
in 18 U.S.C. § 3553(a)(2), which include reflecting the seriousness
2 We review a sentence’s reasonableness for abuse of discretion.
Gall v. United
States, 552 U.S. 38, 51 (2007). “The party challenging a sentence has the bur-
den of showing that the sentence is unreasonable in light of the entire record,
the § 3553(a) factors, and the substantial deference afforded sentencing
courts.”
United States v. Rosales Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015).
A district court abuses its discretion and imposes a substantively unreasonable
sentence only if it “(1) fails to afford consideration to relevant factors that were
due significant weight, (2) gives significant weight to an improper or irrelevant
factor, or (3) commits a clear error of judgment in considering the proper fac-
tors.”
Id. (quotation marks omitted).
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21-10695 Opinion of the Court 7
of the offense, promoting respect for the law, providing just pun-
ishment, affording adequate deterrence, protecting the public from
a defendant’s further crimes, and providing the defendant with ap-
propriate correctional treatment. 18 U.S.C. § 3553(a)(2). The dis-
trict court must also take into consideration the “nature and cir-
cumstances of the offense and the history and characteristics of the
defendant.”
Id. § 3553(a)(1). In addition, the statute directs the dis-
trict court to consider the types of sentences available, the applica-
ble guideline range, any pertinent policy statement issued by the
Sentencing Commission, the need to avoid unwarranted sentenc-
ing disparities, and the need to provide restitution to victims.
Id.
§ 3553(a)(3)–(7).
Here, Richards failed to show that the district court imposed
a substantively unreasonable sentence. The district court consid-
ered the nature and circumstances of the offense, including Rich-
ards’s need to protect himself and others against threats, that Rich-
ards was selling firearms, and that Richards resided in a house “full
of guns.” To the extent that Richards challenges the district court’s
reliance on his alleged affiliation with the Black Disciples, the dis-
trict court did not discuss the Black Disciples in explaining its rea-
soning for the sentence, and in any event, the court was presented
with non-speculative evidence that Richards sold firearms for the
Black Disciples. Accordingly, the district court properly weighed
the § 3553(a) factors and imposed a sentence within the Guidelines
range and below the statutory maximum.
See United States v.
Wayerski, 624 F.3d 1342, 1353 (11th Cir. 2010) (holding that
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8 Opinion of the Court 21-10695
sentences within the guidelines range are generally reasonable);
United States v. Dougherty, 754 F.3d 1353, 1364 (11th Cir. 2014)
(holding that whether a sentence is one that is well below the stat-
utory maximum for the crime is an indicator of reasonableness).
Further, the district court did not err by imposing Richards’s
sentences consecutively in part. The Guidelines instruct that, if the
sentence imposed on the count with the highest statutory maxi-
mum is less than the “total punishment,” then the sentence im-
posed on that count and one or more other counts “shall run con-
secutively.” U.S.S.G. § 5G1.2(d). The counts must be imposed
consecutively “only to the extent necessary to produce a combined
sentence equal to the total punishment.”
Id. In the commentary
to § 5G1.2(d), the Guidelines explain that the “total punishment” is
the combined length of sentences determined when the court cal-
culates a defendant’s guideline range.
Id. cmt. n.1.
Here, the district court imposed the sentences consecutively
but only to the extent necessary to reach a 136-month sentence,
which is within the “total punishment” range.
AFFIRMED.
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