[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 21-11637

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

MAXWELL GARVICE JOHNSON, 

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:20-cr-00107-CEM-EJK-1

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2 Opinion of the Court 21-11637

Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:

Maxwell Garvice Johnson appeals his 360-month sentence, 

imposed after he pled guilty to conspiracy to distribute or possess 

with intent to distribute methamphetamine. He argues that the 

district court clearly erred in applying sentencing enhancements

for his leadership role in the conspiracy and for his possession of a 

pistol found during the search of his home. We find no error and 

affirm the sentence.

I 

Mr. Johnson, his girlfriend Gena Walker, and seven others 

were indicted for their participation in a narcotics conspiracy. Authorities seized drugs and drug proceeds from searches conducted 

of Ms. Walker’s hair salon business and of the home that she and 

Mr. Johnson shared. In the master bedroom of their home, authorities found a 9-millimeter pistol. It was underneath the mattress 

but visible. 

Mr. Johnson pled guilty to conspiracy to distribute or possess with intent to distribute methamphetamine. Following his 

guilty plea, the United States Probation Office recommended a 

four-level enhancement for his leadership role in the conspiracy 

pursuant to U.S.S.G. § 3B1.1(a) and a two-level enhancement for 

possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). Mr. 

Johnson’s counsel objected to the application of these two 

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enhancements, arguing that he was a supplier, not a leader, and 

that he did not own or have knowledge of the firearm. 

The district court overruled the objections and made a series 

of findings to support the application of both enhancements. It 

found that, during some recorded phone calls, Mr. Johnson gave 

instructions to his co-conspirators, some of whom referred to him 

as “boss”; that the amount of cash and contraband attributed to Mr. 

Johnson was larger than that attributed to any other defendant except for Robert Hamilton; that Mr. Johnson admitted he was the 

owner of a stash house at Epic Apartments; and that authorities 

found six cellphones within Mr. Johnson’s reach in his bedroom. 

As noted earlier, the authorities also found a loaded 9-millimeter 

pistol within arm’s reach of where Mr. Johnson and Mr. Walker 

had slept. 

II

We review a district court’s factual findings at sentencing for 

clear error. See United States v. Caraballo, 595 F.3d 1214, 1231 

(11th Cir. 2010) (leadership-role enhancement); United States v. Alfred, 144 F.3d 1405, 1420 (11th Cir. 1998) (firearm-possession enhancement). 

III

We first address Mr. Johnson’s argument that the district 

court’s application of the leadership enhancement constituted clear 

error. Relying on Eleventh Circuit cases, Mr. Johnson argues that 

he was merely a seller, and not a leader or organizer of the 

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4 Opinion of the Court 21-11637

conspiracy. See Initial Br. at 20-21 (citing United States v. Maxwell,

34 F.3d 1006, 1012 (11th Cir. 1994) (application of the leadership 

enhancement is inappropriate where “there was no evidence of anything other than a seller/buyer relationship”) and United States v. 

Alred, 144 F.3d 1405, 1420-21 (11th Cir. 1998) (same)). His argument, however, ignores the district court’s many findings of fact 

that support its application of the leadership enhancement.

The Sentencing Guidelines call for a four-level enhancement 

where the defendant “was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). District courts consider these factors 

when determining whether a defendant acted as a leader or organizer:

(1) the exercise of decision making authority, (2) the 

nature of participation in the commission of the offense, (3) the recruitment of accomplices, (4) the 

claimed right to a larger share of the fruits of the 

crime, (5) the degree of participation in planning or 

organizing the offense, (6) the nature and scope of the 

illegal activity, and (7) the degree of control and authority exercised over others. 

United States v. Caraballo, 595 F.3d 1214, 1231 (11th Cir. 2010) 

(quoting U.S.S.G. § 3B1.1, cmt. n. 4). These factors are merely considerations, and every factor need not apply. See id.

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Here, the district court found that (1) Ms. Johnson “was 

clearly giving out instructions per surreptitiously recorded phone 

calls[,]” and during those calls he was referred to as “boss”; (2) Mr. 

Johnson was “associated with” a “large amount of cash” which was 

disproportionate compared to the other co-conspirators except for 

Mr. Hamilton; (3) Mr. Johnson owned a stash house and only he 

and Mr. Hamilton owned stash houses and (4) Mr. Johnson admitted to being peers with Mr. Hamilton, who had already been found 

to be a leader or organizer under U.S.S.G. § 3B1.1(a). We consider 

each finding in turn.

A 

Mr. Johnson argues that the district court clearly erred in 

finding, by a preponderance of the evidence, that he was directing 

others. We disagree. 

In making this finding of fact, the district court relied on

transcripts of specific phone calls in which Mr. Johnson instructed 

others regarding how much product to supply. During one of 

these phone calls, a co-conspirator who was confused about the 

quantity of drugs that he should have supplied stated “[T]hat’s all 

you told me to give him boss. I was following instructions.” In 

another phone call, Mr. Johnson counseled a co-conspirator about 

how to better predict the quantity of drugs that a repeat customer 

would need. Mr. Johnson said, “But I am still sending you. You 

know she’s going to call and if she calls one time she’s call four to 

five times that day. That’s guaranteed locked in.” 

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Based on these and other phone calls, the district court 

found that Mr. Johnson gave out instructions to co-conspirators. 

The district court did not clearly err in making this finding. See 

United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012)

(“[W]e will not disturb a district court’s findings unless we are left 

with a definite and firm conviction that a mistake has been committed.”) (internal quotation marks and citation omitted)).

Mr. Johnson also argues that district court erroneously relied on his nickname—“boss”—which he says was not used to indicate leadership, but just to show respect. According to Mr. Johnson, his characterization as “boss” does not control whether the

leadership enhancement applies because the commentary to 

§ 3B1.1 says so. 

The Sentencing Guideline note cited by Mr. Johnson states 

that the use of a nickname like “boss” is not controlling “in distinguishing a leadership and organizational role from one of mere 

management or supervision.” U.S.S.G. § 3B1.1, cmt., n. 4. In other 

words, the use of such a nickname does not control whether a defendant qualifies for a four-level role enhancement as “an organizer 

or leader” or a three-level enhancement as “a manager or supervisor.” U.S.S.G. § 3B1.1(a), (b). But this does not mean that the use 

of the nickname “boss” is completely irrelevant to the application 

of a role enhancement under § 3B1.1. Although we agree that calling a conspirator “boss” alone does not control, the district court 

did not base its application of the leadership enhancement on this 

one fact. See United States v. Dixon, 901 F.3d 1322, 1348 (11th Cir. 

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2018) (affirming the leadership enhancement’s application because 

it was based on specific findings of fact and acknowledging that being called “boss” is not controlling).

B 

The district court also found that Mr. Johnson profited more 

than his co-conspirators except for Mr. Hamilton. Mr. Johnson 

does not challenge this finding as clearly erroneous, and indeed 

seemingly agrees that he made more than his fellow dealers. Instead, he argues that this finding only proves that he was a wholesaler who sold a greater volume of narcotics than the others, arguing that it is “entirely conceivable” that he acted as a wholesaler. 

The ability to conceive of a different explanation for Mr. 

Johnson’s disproportionate profit does not render this finding irrelevant to the district court’s ultimate determination that Mr. Johnson was a leader. See United States v. Almedina, 686 F.3d 1312, 

1315 (11th Cir. 2012) (explaining that where the facts “give[ ] rise 

to two reasonable and different constructions, the factfinder’s 

choice between them cannot be clearly erroneous”). And courts 

may consider evidence that a defendant profited more than any 

other person convicted in a criminal scheme in imposing leadership 

enhancements. See United States v. Crabtree, 878 F.3d 1274, 1290 

(11th Cir. 2018) (affirming imposition of leadership enhancement 

based in part on the fact that he profited more than all but one of 

his co-conspirators). Cf. United States v. Martinez, 584 F.3d 1022, 

1028 (11th Cir. 2009) (reversing the district court’s leadership enhancement in part because the defendant did not claim a larger 

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share of the fruits of the crime). The evidence seized and photographed at Mr. Johnson’s home shows that he had approximately

$50,000 as well as a Maserati, which was much more than the 

amounts found at his co-conspirators’ homes. 

The district court did not clearly err in finding that Mr. Johnson profited more than most of his co-conspirators. Nor did it err 

in considering the disproportionate distribution of cash in making 

a leadership determination.

C 

The district court found that Mr. Johnson owned one of the

two stash houses used in the conspiracy. Again, Mr. Johnson does 

not challenge this finding as clearly erroneous and instead argues 

that the district court erred in considering this fact because stash

house ownership is not articulated in the Sentencing Guidelines as 

a factor for determining whether to apply the leadership enhancement. See U.S.S.G. § 3B1.1, cmt. 4. See also Dixon, 901 F.3d 1322. 

This argument is not persuasive.

Mr. Johnson’s ownership of the two stash houses is relevant 

to the second factor—the nature of his participation in the commission of the offense—and the district court did not err in considering 

evidence pertaining to Mr. Johnson’s overall role and conduct. We 

agree that a leadership enhancement cannot be based solely on 

ownership of a stash house because § 3B1.1 “requires the exercise 

of some authority in the organization, the exertion of some degree 

of control, influence, or leadership.” United States v. Martinez, 584 

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F.3d 1022, 1026 (11th Cir. 2009). But here the district court did not 

apply the leadership enhancement solely based on this finding. Instead, the district court considered Mr. Johnson’s ownership and 

control of the stash house, together with its findings that Mr. Johnson gave instructions to his co-conspirators who referred to him as 

boss, that he had profited more than most of his co-conspirators, 

and that Mr. Hamilton was his peer.

D 

Mr. Johnson argues that Mr. Hamilton’s role as a leader 

should have no bearing on Mr. Johnson’s sentence, even though 

Mr. Johnson admitted he was Mr. Hamilton’s “peer” and that they 

were “on the same level.” The district court reasoned that because 

it had previously applied a leadership enhancement to Mr. Hamilton’s sentence, it should also apply the leadership enhancement to 

his peer. 

The district court did not err in considering the relative participation of all co-conspirators to determine which, if any, qualified for a leadership role enhancement. As we have explained, 

there can be more than one leader of a conspiracy. See United 

States v. Revel, 971 F.2d 656, 660 (11th Cir. 1992) (“In order to be 

considered an organizer or leader within the meaning of the Guidelines, the defendant need not be the sole leader or a kingpin of the 

conspiracy . . . Evidence at trial indicated that Revel and Pullman 

both exercised decision-making authority and control over the operation”). 

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IV 

Next, we consider Mr. Johnson’s argument that the district 

court clearly erred in applying the two-level enhancement under 

U.S.S.G. § 2D1.1(b)(1) for possession of a firearm because he was 

not the owner of the firearm, made no use of it, and did not have 

knowledge of it. Again, we disagree.

The Sentencing Guidelines provide for a two-level enhancement when, in connection with the drug offense charged, a defendant possesses a dangerous weapon. To apply the firearms enhancement, “[t]he government bears the initial burden of showing, by a 

preponderance of the evidence, that a firearm was ‘present’ at the 

site of the charged conduct or that the defendant possessed it during conduct associated with the offense of conviction.” United 

States v. George, 872 F.3d 1197, 1204 (11th Cir. 2017). Once the 

government meets this initial burden, the burden shifts to the defendant to demonstrate that the connection between the weapon 

and the charged offense was “clearly improbable.” United States v. 

Audain, 254 F.3d 1286, 1289 (11th Cir. 2001). See also U.S.S.G. § 

2D1.1, cmt. n.11 (“The enhancement should be applied if the 

weapon was present, unless it is clearly improbable that the 

weapon was connected with the offense.”). “In effect, the government benefits from a rebuttable presumption that a firearm, if present—just present, not present in proximity to drugs—is connected 

with the offense.” United States v. Carillo-Ayala, 713 F.3d 82, 90 

(11th Cir. 2013) (internal quotation marks omitted). 

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Mr. Johnson made no effort to rebut that presumption and 

provided no evidence that the connection between the weapon and 

the charged offense was “clearly improbable.” He argued instead 

that, since the government had not met its initial burden, he was 

not required to provide evidence that the connection was clearly 

improbable. 

The government produced evidence that, when officers executed a search warrant at the home of Mr. Johnson and Ms. 

Walker, they found a fully loaded 9-millimeter firearm with a magazine that contained 11 rounds of ammunition within arm’s reach 

of where Mr. Johnson slept. The officers also found two boxes of 

additional ammunition, six cell phones, two digital scales, and approximately $50,000 in cash. 

Proximity between guns and drug-related items is enough 

to meet the government’s initial burden. See United States v. Hall, 

46 F.3d 62, 63-64 (11th Cir. 1995) (upholding firearm enhancement 

when the gun was found in a dresser drawer in the same room as 

several drug-related objects such as scales, a bag containing cocaine 

residue, and a large amount of cash); United States v. Delgado, 981 

F.3d 889, 902-03 (11th Cir. 2020) (upholding firearm enhancement 

where the gun was found with scales and powders and the defendant’s home was the intended destination for drugs); United States 

v. Carillo-Ayala, 713 F.3d at 92 (“A firearm found in close proximity 

to drugs or drug-related items simply ‘has’ —without any requirement for additional evidence—the potential to facilitate the drug 

offense.”). On this record, the district court did not clearly err in 

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finding, by a preponderance of the evidence, that the firearm was 

present at the site of the charged conduct, and Mr. Johnson does 

not challenge this finding as clearly erroneous.

Mr. Johnson argues that he did not possess, or even know 

about, the gun that was stored inches from where he slept, with its 

brightly colored handle visibly protruding from his mattress. This 

purported lack of knowledge—which the district court was not required to credit—is not sufficient to show that Mr. Johnson did not 

constructively possess the gun. See United States v. Villarreal, 613 

F.3d 1344, 1459 (11th Cir. 2010) (constructive possession, which 

means “ownership, dominion, or control over an object itself or 

control over the premises in which the object is concealed,” is sufficient for a firearm enhancement). In any event, there is no dispute that Mr. Johnson’s conspirator, Ms. Walker, possessed the 

weapon. Mr. Johnson’s argument therefore fails. See United States 

v. Westry, 524 F.3d 1198, 1221 (11th Cir. 2008). 

Under § 2D1.1(b)(1) to apply the weapon enhancement to 

members of a conspiracy the government must prove by preponderance of the evidence that “(1) the possessor of the firearm was a 

co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the defendant was a member of the conspiracy at the time 

of possession, and (4) the co-conspirator possession was reasonably 

foreseeable by the defendant.” United States v. Gallo, 195 F.3d 

1278, 1284 (11th Cir. 1999). Mr. Johnson concedes that the government has established that he and Ms. Walker were members of the 

conspiracy at the time of the firearm possession. As to the 

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foreseeability—it is reasonably foreseeable for a co-conspirator to 

possess a firearm in a lucrative illegal drug conspiracy. See United 

States v. Pham, 463 F.3d 1239, 1246 (11th Cir. 2006). Mr. Johnson 

and Ms. Walker not only lived together but they also were in a relationship since 2013 and have a child together. Their close familiarity weighs in favor of Mr. Johnson’s ability to foresee Ms. 

Walker’s actions. See United States v. Fields, 408 F.3d 1356, 1359 

(11th Cir. 2005) (noting that because the defendant and the co-conspirator were cousins and grew up together their close relationship 

increased the possibility that the defendant would be able to foresee the co-conspirator’s actions, including the gun possession). 

V 

We AFFIRM Mr. Johnson’s sentence.

AFFIRMED. 

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