USA v. Demarcus Montrail Graves

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 9, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 08-16128
Non-Argument Calendar
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D. C. Docket No. 07-00234-CR-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMARCUS MONTRAIL GRAVES,
a.k.a. Marcus Graves,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(March 9, 2010)
Before DUBINA, Chief Judge, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Demarcus Montrail Graves appeals his conviction for possession

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of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c). Graves argues that the government failed to present sufficient evidence
to establish that he possessed the firearm in furtherance of his drug trafficking
offense.
We review de novo a district court’s denial of judgment of acquittal on
sufficiency of evidence grounds, viewing the evidence in the light most favorable
to the government. United States v. Emmanuel, 565 F.3d 1324, 1333 (11th Cir.
2009), cert. denied, ___ S. Ct. ___, 78 A.S.L.W. 3360 (Dec. 14, 2009). We will
uphold a conviction “unless the jury could not have found the defendant guilty
under any reasonable construction of the evidence.” Id. (internal quotation marks
omitted). The evidence need not exclude “every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt.”
Id. at 1333-34 (internal quotation marks omitted). Further, the credibility of the
government’s witnesses is exclusively determined by the jury, and we will not
revisit that issue. Id. at 1334.
To prove a violation of 18 U.S.C. § 924(c)(1)(A), the government must
show that a defendant used or carried a firearm in relation to a drug trafficking
crime, or possessed a firearm in furtherance of a drug trafficking crime. See 18
U.S.C. § 924(c)(1)(A). “The ‘in furtherance’ element requires proof that ‘the
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firearm helped, furthered, promoted, or advanced the drug trafficking.’” United
States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008) (quoting United States v.
Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002)). Thus, to show that a gun was
possessed “in furtherance” of a drug trafficking crime, the government is required
to establish “some nexus between the gun and the drug selling operation.” United
States v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002) (internal quotation marks
omitted). We consider several factors when determining whether a defendant
possessed a firearm in furtherance of a drug trafficking crime, including: the type
of drug activity, accessibility of the firearm, the type of weapon, whether the
weapon was stolen, the legality of firearm possession, whether the gun is loaded,
proximity to the drugs, and the time and circumstances under which the gun is
found. Woodard, 531 F.3d at 1362; Timmons, 283 F.3d at 1253.
Given the ease with which Graves could reach the loaded gun and its
proximity to the drugs, we conclude that a jury could reasonably find a sufficient
nexus between the gun and the drug trafficking crime to find Graves guilty of a
violation of § 924(c). Accordingly, we affirm Graves’s conviction.
AFFIRMED.
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