FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 17, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-14766

Non-Argument Calendar

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D. C. Docket No. 07-20400-CR-PCH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTHUR JUNIOR GREEN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 17, 2008)

Before BIRCH, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

Arthur Junior Green appeals from his convictions and 220-month sentence

for possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1); possession with intent to distribute five grams or more of cocaine base
(“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); and possession

of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A). On appeal, Green argues that: (1) sufficient evidence did not

support his convictions; (2) the district court erred in admitting expert testimony

regarding the gross weight of the drugs and packaging seized by the police; (3) the

district court erred in refusing to instruct the jury that the government needed to

prove that he willfully violated the law in regard to his conviction for possession

with intent to distribute cocaine base; (4) the district court plainly erred in

sentencing him as a career offender; and (5) the district court’s judgment contains a

clerical error regarding his sentence on count one, necessitating a limited remand

to correct the error. After thorough review, we affirm in part, vacate in part as to

the clerical error in Green’s sentence, and remand with instructions.

We review the sufficiency of the evidence de novo, viewing the evidence in

the light most favorable to the government and accepting all reasonable inferences

in favor of the verdict. United States v. Klopf, 423 F.3d 1228, 1236 (11th Cir.

2005). If a reasonable trier of fact could find that evidence established guilt

beyond a reasonable doubt, the evidence is sufficient to support a conviction even

if evidence might also support a defendant’s theory of innocence. United States v.

Tinoco, 304 F.3d 1088, 1122 (11th Cir. 2002).

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“We review cases dealing with discovery violations under Fed. R. Crim. P.

16 using an abuse of discretion standard.” United States v. Hastamorir, 881 F.2d

1551, 1559 (11th Cir. 1989). A Rule 16 violation “is reversible error only when it

violates a defendant’s substantial rights.” United States v. Camargo-Vergara, 57

F.3d 993, 998 (11th Cir. 1995). “Substantial prejudice exists when a defendant is

unduly surprised and lacks an adequate opportunity to prepare a defense, or if the

mistake substantially influences the jury.” Id. at 998-99. We also review a district

court’s refusal to give a requested jury instruction for abuse of discretion. United

States v. Palma, 511 F.3d 1311, 1314-15 (11th Cir. 2008). “We will find

reversible error only if (1) the requested instruction correctly stated the law; (2) the

actual charge to the jury did not substantially cover the proposed instruction; and

(3) the failure to give the instruction substantially impaired the defendant’s ability

to present an effective defense.” Id. at 1315 (quotations omitted).

“A sentencing issue not raised in the district court is reviewed for plain

error.” United States v. Richardson, 166 F.3d 1360, 1361 (11th Cir. 1999). Under

the plain error standard, we will correct an error only if there is: (1) error; (2) that

is plain or obvious; (3) that affects the defendant’s substantial rights; and (4) that

seriously affects the fairness, integrity, or public reputation of a judicial

proceeding. United States v. Williams, 469 F.3d 963, 966 (11th Cir. 2006). An

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error is plain or obvious only if it is “clear under current law.” United States v.

Humphrey, 164 F.3d 585, 588 (11th Cir. 1999) (quoting United States v. Olano,

507 U.S. 725, 734 (1993)). An error is not clear under current law if no binding

decisions from this Court or the Supreme Court in materially similar cases resolve

the issue, and other circuits are split on the issue. Id.

First, we find no merit to Green’s contention that sufficient evidence did not

support his convictions. Possession with intent to distribute crack cocaine under

21 U.S.C. § 841(a)(1) is proven by evidence showing a defendant’s (1) knowing or

intentional (2) possession of a controlled substance (3) with intent to distribute that

substance. 21 U.S.C. § 841(a)(1). “Intent to distribute can be proven

circumstantially from, among other things, the quantity of cocaine and the

existence of implements such as scales commonly used in connection with the

distribution of cocaine.” United States v. Poole, 878 F.2d 1389, 1392 (11th Cir.

1989). Other relevant circumstances include the defendant’s possession of a

firearm, a large amount of cash, or an implement, like a razor blade, used to cut up

drugs. United States v. Marszalkowski, 669 F.2d 655, 662 (11th Cir. 1982);

United States v. Wilson, 183 F.3d 1291, 1299 (11th Cir. 1999). In addition, a

defendant’s denial of guilt in his trial testimony, “if disbelieved by the jury, may be

considered as substantive evidence of the defendant’s guilt.” United States v.

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Brown, 53 F.3d 312, 314 (11th Cir. 1995) (emphasis in original). In such a case,

where some corroborative evidence exists for the charged offense, the defendant’s

testimony may establish the elements of the offense. Id. at 314-15.

Here, sufficient evidence supported Green’s conviction for possession with

intent to distribute cocaine base. As an initial matter, Green does not challenge the

sufficiency of the evidence with regard to his knowing possession of crack cocaine.

Direct and circumstantial evidence proved the remaining element of the offense --

intent to distribute -- by showing that Green spontaneously admitted to a federal

agent that he was a drug dealer, he made multiple statements regarding the quantity

of the crack cocaine seized, police seized from his pocket numerous baggies filled

with individual crack cocaine rocks, a gun was found in his vehicle, and the jury

was entitled to reject his testimony that he was not a drug dealer.

We likewise conclude that sufficient evidence supported his remaining

convictions. A 18 U.S.C. § 922(g)(1) conviction requires evidence to show that:

(1) the defendant knowingly possessed a firearm; (2) the defendant was previously

convicted of an offense punishable by a term of imprisonment exceeding one year;

and (3) the firearm was in or affecting interstate commerce. Palma, 511 F.3d at

1315. A 18 U.S.C. § 924(c) conviction requires evidence to show that the

defendant: “(1) knowingly (2) possessed a firearm (3) in furtherance of any drug

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trafficking crime for which he could be prosecuted in a court of the United States.”

United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008).

The first element under both §§ 922(g)(1) and 924(c) -- knowing possession

of a firearm -- may be proved by evidence of either actual or constructive

possession. See United States v. Pedro, 999 F.2d 497, 500 (11th Cir. 1993). A

defendant has construction possession if he has “ownership, dominion, or control”

over the firearm itself, or the vehicle in which the firearm is located. United States

v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (quotation omitted). In Wright,

we found sufficient evidence to support knowing possession where: (1) police

found the firearm in the defendant’s vehicle; (2) the firearm was located under the

seat in which the defendant was sitting; (3) the defendant resisted arrest; and (4)

the defendant made a vague threat to the police during his arrest. Id. at 1273-74.

For purposes of §§ 922(g)(1) and 924(c), a firearm includes “any weapon . .

. which will or is designed to or may readily be converted to expel a projectile by

the action of an explosive.” 18 U.S.C. § 921(a)(3)(A). We have held that a

firearm met the statutory definition where the evidence included: (1) the actual

firearm; and (2) a witness testified that the firearm was a “Winchester blue 12

gauge shotgun.” United States v. Adams, 137 F.3d 1298, 1300 n.2 (11th Cir.

1998). The government need not to prove that the firearm is operable. Id. at 1300.

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The “in furtherance” element of a § 924(c) offense requires proof of a nexus

between the firearm and the drug trafficking offense. United States v. Molina, 443

F.3d 824, 829 (11th Cir. 2006). Factors relevant to the nexus between the firearm

and a drug crime include: (1) the accessibility of the firearm to the defendant;

(2) the proximity of the firearm to the drugs or drug profits; (3) the status of the

possession (legal or illegal); and (4) the circumstances under which the gun was

found. United States v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002). A jury

may infer that the purpose of a firearm located near drugs was to provide defense

or deterrence in furtherance of a defendant’s drug trafficking activity. United

States v. Miranda, 425 F.3d 953, 962 (11th Cir. 2005).

The evidence here demonstrated each of the elements Green now contests.

As for his knowing possession of the gun found in his vehicle under both §§ 922

and 924, there was evidence that Green purchased the vehicle in which the gun was

found over a week before his arrest, he was driving the vehicle before the gun was

found, and the gun was found under the driver’s seat, which was readily accessible

to him. At a minimum, this evidence showed that Green constructively possessed

the firearm because he had dominion and control over the vehicle in which it was

found. Moreover, Green testified that he was unaware of the gun and that the

police placed it in his vehicle, and the jury was entitled to believe the opposite.

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The evidence further demonstrated that the gun met the statutory definition

of a firearm found in 18 U.S.C. § 921(a)(3). The gun was admitted into evidence,

an expert testified that it was a Smith & Wesson pistol designed to expel a

projectile by the action of an explosive, and it did not appear to be counterfeit. The

jury was free to credit this testimony and find that the gun was a firearm under the

statute, despite Green’s theory that the gun may have been counterfeit.

The evidence also established that, under § 924(c), Green possessed the

firearm “in furtherance” of a drug trafficking crime: (1) the gun was found in his

vehicle, under the driver’s seat; (2) he was driving the vehicle; (3) he was carrying

a bag of individually packaged crack cocaine rocks on him; and (4) he admitted to

dealing drugs and said it was a dangerous profession. And, as discussed above,

evidence proved that Green committed a drug trafficking crime for the purposes of

his § 924(c) conviction. Because he does not challenge any remaining elements of

the firearm offenses, sufficient evidence supported these convictions.

Second, we are unpersuaded by Green’s claim that the district court erred in

admitting expert testimony regarding the gross weight of the drugs and packaging

seized by the police. Rule 16 provides that the government must disclose to the

defendant, upon request, a written summary of any expected expert testimony.

Fed. R. Crim. P. 16(a)(1)(G). But even assuming, arguendo, that the government’s

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mid-trial disclosure of the expert report violated Rule 16, the record does not

indicate that Green was substantially prejudiced.

According to the record, Green’s only problem with the expert testimony

was that it countered one of his lines of cross examination and supported a federal

agent’s testimony. At trial the jury heard testimony regarding three different

estimates of the weight of the drugs seized from Green: (1) 21 grams, which was

Green’s own estimate of the weight, according to Agent Rathel, or “it’s not going

to be 28,” according to Detective Bello; (2) 9.7 grams, which was the net weight of

a sample of the drugs, according to the expert; and (3) 27.8, which was the gross

weight of the drugs and baggies, according to the expert. The expert testimony

simply dispelled any confusion between the 9.7 grams and 21 grams -- which were

based on different measurements -- by explaining how the expert arrived at the 9.7

gram figure, without any regard to her testimony regarding the gross weight of the

drugs and baggies, the 27.8 gram figure. Because defense counsel was on notice

that an expert would testify regarding the 9.7 gram figure and how she came up

with that figure, the additional testimony regarding the corrected 27.8 gram figure

did not prejudice Green by impairing his counsel’s ability to formulate a defense

strategy. The district court therefore did not abuse its discretion in admitting the

disputed expert testimony.

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Third, we reject Green’s contention that the district court erred in refusing to

instruct the jury that the government needed to prove that he “willfully” violated

the law to establish possession with intent to distribute cocaine base. As we note

above, the elements of a § 841(a)(1) offense are (1) knowing or intentional (2)

possession of a controlled substance (3) with intent to distribute that substance. 21

U.S.C. § 841(a)(1). Based on this statutory language, we have long required the

government to prove “beyond a reasonable doubt that [a defendant] knowingly

possessed [a controlled substance], either actually or constructively, and that he

intended to distribute it,” United States v. Cruz-Valdez, 773 F.2d 1541, 1544 (11th

Cir. 1985) (en banc) (citing United States v. Littrell, 574 F.2d 828, 835 (5th Cir.

1978)) -- without imposing any “willfulness” element into the statute. This makes

sense, because the statutory language makes no reference to willfulness, nor to an

intent to violate the law, as a mens rea requirement. See 21 U.S.C. § 841(a)(1) (“it

shall be unlawful for any person knowingly or intentionally . . . to . . . possess with

intent to . . . distribute . . . a controlled substance.”).

Accordingly, under the plain language of § 841(a)(1), a defendant must

knowingly or intentionally possess with intent to distribute a controlled substance.

Green does not identify any binding case law holding that willfulness -- defined as

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a specific intent to disobey the law -- is an element of a § 841(a)(1) crime.

1

Consistent with the statutory language and case law, the district court rejected

Green’s proposed instruction and instead instructed the jury that a conviction on

count two required proof that Green “knowingly and intentionally” possessed with

intent to distribute cocaine base. It then correctly defined a knowing and

intentional act as one that was committed voluntarily and purposefully, and not by

mistake or accident. The district court therefore did not abuse its discretion in

instructing the jury.

Fourth, we conclude that the district court did not plainly err in sentencing

Green as a career offender. A defendant qualifies as a career offender, under

U.S.S.G. § 4B1.1, if: (1) he was at least eighteen years old at the time he

committed the instant offense; (2) the instant offense is a felony that is either a

crime or violence or a drug offense; and (3) he has at least two prior felony

 Indeed, our prior precedent has long held that a § 841(a)(1) conviction requires 1

evidence that a defendant “knowingly” or “intentionally” possess a controlled substance with

intent to distribute, merely tracking the language of the statute. In Cruz-Valdez, our en banc

court held that the government must prove that a defendant “knowingly possessed” a controlled

substance. 773 F.2d at 1544; accord United States v. Alvarez, 837 F.2d 1024, 1027 (11th Cir.

1988). Similarly, in Cauchon v. United States, 824 F.2d 908, 912 (11th Cir. 1987), we held that

“there must have been sufficient evidence for a reasonable juror to find that appellant (1)

knowingly or intentionally (2) manufactured MDA.” (emphasis in original). To the extent that

United States v. Anderson, 289 F.3d 1321 (11th Cir. 2002), is read to say that willfulness is a

required element of § 841(a)(1) -- and it is not at all clear to us that Anderson holds that

willfulness is a required element -- we are bound by earlier case precedent. See United States v.

Levy, 379 F.3d 1241, 1245 (11th Cir. 2004) (“where there is conflicting prior panel precedent,

we follow the first in time”). 

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convictions of either a crime of violence or a drug offense. U.S.S.G. § 4B1.1(a).

A “crime of violence” means any federal or state offense punishable by

imprisonment in excess of one year, that:

(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves the use of

explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). To determine whether a crime is a “crime of violence,” we

use a categorical approach, “consider[ing] the offense as defined by the law, rather

than considering the facts of the specific violation.” United States v. Archer, 531

F.3d 1347, 1350 (11th Cir. 2008).

Because we have observed that the definition of “crime of violence” from §

4B1.2 is nearly the same as the ACCA’s definition of “violent felony,” id. at 1350

n.1, the Supreme Court’s decision in Begay v. United States, 128 S.Ct. 1581

(2008), interpreting the “violent felony” provision, is instructive in the career

offender context. In Begay, the Court determined that violent felonies included

crimes that “present[ed] a serious potential risk of physical injury,” only to the

extent that such crimes were “roughly similar, in kind as well as in degree of risk

posed,” to the enumerated crimes -- burglary, arson, extortion, and use of

explosives. Id. at 1585. The Court noted that “[t]he listed crimes all typically

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involve purposeful, ‘violent,’ and ‘aggressive’ conduct.” Id. at 1586. The Court

then applied that standard to felony driving under the influence (“DUI”) and held

that that crime did not qualify as a violent felony. Id. at 1587. It observed that

statutes forbidding driving under the influence “typically do not insist on

purposeful, violent, and aggressive conduct,” and rather, are comparable to strict

liability crimes. Id. at 1586. The Court recognized that although a person might

drink on purpose, the crime of felony DUI did not require purposeful or deliberate

conduct, and instead, could involve mere negligence or recklessness. Id. at 1587.

Green was convicted of throwing a deadly missile, in violation of a Florida

law creating a felony if a person “wantonly or maliciously . . . throws any missile

or hurls or projects a stone or other hard substance which would produce death or

great bodily harm,” at a building, vehicle, train, boat, or aircraft, occupied or

unoccupied. Fla. Stat. § 790.19. The intent element is defined as follows:

‘Wantonly’ means consciously and intentionally, with reckless

indifference to consequences and with the knowledge that damage is

likely to be done to some person.

‘Maliciously’ means wrongfully, intentionally, without legal

justification or excuse, and with the knowledge that injury or damage

will or may be caused to another person or the property of another

person.

State v. Kettell, 980 So.2d 1061, 1067 (Fla. 2008).

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Based on these definitions, the Florida crime of throwing a deadly missile

plainly passes the threshold test of the second definition of a crime of violence,

under § 4B1.2(a)(2), because it requires that the offender’s conduct present a

serious potential risk of physical injury to another. Moreover, the crime arguably

qualifies as a crime of violence because it is roughly similar to the crimes listed in

§ 4B1.2(a)(2) in that it involves purposeful and deliberate conduct aimed at

property where persons might be located and thereby injured. Although Florida

law references reckless indifference as part of its definition of “wantonness,” it

also appears to require an intentional act done with knowledge of the risk of harm

it could cause to another as part of its definitions of wantonness and maliciousness.

This contrasts with the crime of felony DUI, which typically requires a only

reckless action, and Begay therefore does not resolve the question.

Green does not identify any binding case law from this Court, or a settled

line of cases from other circuits, addressing whether the crime of throwing a deadly

missile is a crime of violence. We therefore conclude that because the issue is

unresolved, the district court’s finding that Green’s prior crime was a crime of

violence was not, and could not have been, plain error.

Last but not least, we do agree with the parties that the district court’s

judgment contains a clerical error regarding Green’s sentence on count one.

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“[W]hen the orally-imposed sentence differs from the written order of judgment,

the oral sentence controls.” United States v. Jones, 289 F.3d 1260, 1264 n.5 (11th

Cir. 2002). If the district court’s judgment contains a clerical error, we will vacate

and remand with instructions that the district court correct the error. United States

v. Massey, 443 F.3d 814, 822 (11th Cir. 2006).

The parties agree and the record demonstrates that the district court’s

judgment improperly said that Green’s sentence for count one was 160 months’

imprisonment, whereas the district court orally imposed a 120-month sentence, on

count one. Accordingly, we affirm Green’s convictions and sentence, but vacate

and remand for the limited purpose of correcting the clerical error in the judgment

regarding the length of his sentence on count one.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

WITH INSTRUCTIONS.

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