United States Court of Appeals

for the Fifth Circuit

No. 20-60522

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Victor Smith; Michael Smith, 

Defendants—Appellants.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:19-CR-16-1

USDC No. 2:19-CR-16-2

Before Clement, Higginson, and Engelhardt, Circuit Judges.

Per Curiam:*

Victor Smith and his brother Michael Smith were convicted by a jury 

of possession with intent to distribute marijuana, in violation of 21 U.S.C. 

§ 841(a)(1) (Count One), and with possession of a stolen firearm, in violation 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 7, 2021

Lyle W. Cayce

Clerk

Case: 20-60522 Document: 00515853240 Page: 1 Date Filed: 05/07/2021
No. 20-60522

2

of 18 U.S.C. § 922(j) (Count 2). The jury acquitted the brothers of the third 

count of the indictment, possession of a firearm in furtherance of a drug 

trafficking crime. Victor and Michael filed timely notices of appeal.

Victor and Michael both challenge the district court’s denial of their 

motions for judgment of acquittal, arguing that there was insufficient 

evidence to support their convictions. “This court reviews preserved 

challenges to the sufficiency of the evidence de novo.” United States v. 

Grant, 683 F.3d 639, 642 (5th Cir. 2012).

According to Victor, there was no evidence connecting him to the 

marijuana in the apartment, “other than his own statements which were 

made while in an exhausted and confused state.” Michael complains that 

there was no other incriminating evidence of his guilt, and his conviction was 

based on “little other than the fact that marijuana was found in a safe in his 

bedroom.”

There is ample evidence showing that Victor and Michael possessed 

marijuana with the intent to distribute it. Michael’s bedroom safe contained 

11 individual one-ounce bags of marijuana and a mason jar of “loud” 

marijuana. In total, the police recovered over 300 grams of marijuana from 

the apartment. As the Government observes, “[a] reasonable jury could 

determine that, based on the way the marijuana was bagged and the mere 

quantity of it, the marijuana was meant to be distributed.”

Victor also admitted to the officers that he knew about the marijuana

and firearms in the apartment. In both his videotaped interview and written 

statement, he admitted to selling stolen firearms and marijuana, and he 

disclosed the prices for which he was selling them. His admissions were also 

consistent with the testimony of Devonski Lemons, who testified regarding 

Victor’s prior drug dealing out of the apartment. Lemons also testified that 

he had observed Michael selling marijuana in the apartment. The evidence 

Case: 20-60522 Document: 00515853240 Page: 2 Date Filed: 05/07/2021
No. 20-60522

3

was sufficient for a rational juror to return a guilty verdict as to possession 

with intent to distribute marijuana as to both Victor and Michael. See United 

States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007).

The evidence, viewed in the light most favorable to the verdict, also 

supports the conclusion that Victor and Michael possessed the firearms

found in the apartment and knew or had reason to believe that they were 

stolen. See id.; § 922(j). Victor admitted to possessing the stolen firearms 

and to knowing that they were stolen in his written statement. He described 

the stolen firearms as “hot pistols” and admitted that he sold them for $150 

each.

As to Michael, the Government argues that “the same analysis for 

possession of the marijuana located in the safe,” applies to his conviction for 

possession of the firearm, which was found with the marijuana in his safe. 

Further, Michael admitted to the police that he knew there were guns and 

drugs in his apartment. Here, the evidence was sufficient for the jury to 

return a guilty verdict against Victor and Michael for possession of stolen 

firearms. See Shum, 496 F.3d at 391.

Victor and Michael also argue that the district court erred by using 

acquitted conduct to justify the application of the four-level enhancement 

under U.S.S.G. § 2K2.1(b)(6)(B) for using or possessing a firearm in 

connection with another felony offense. This court reviews the sentencing 

court’s interpretation and application of the Sentencing Guidelines de novo 

and its factual findings for clear error. United States v. Salinas, 918 F.3d 463, 

465 (5th Cir. 2019).

The Supreme Court has held that a sentencing court may rely on 

relevant conduct that was based on “conduct of which a defendant has been 

acquitted” so long as the conduct “has been proved by a preponderance of 

the evidence.” United States v. Watts, 519 U.S. 148, 154, 157 (1997). Victor 

Case: 20-60522 Document: 00515853240 Page: 3 Date Filed: 05/07/2021
No. 20-60522

4

and Michael acknowledge Watts, but Victor argues that “the lack of evidence 

presented by the [G]overnment on this issue is so great that even a 

preponderance finding is unreasonable.”

As stated in the presentence reports and the addendum, there were 

five firearms stored in the apartment, two of which were found in physical 

proximity to drugs. Victor and Michael shared the back bedroom where the 

two firearms were found with the marijuana. There was also testimony at 

trial that Victor and Michael both sold marijuana out of the apartment. As 

the Government argues, “[a] preponderance of the evidence supports that 

both Victor and Michael Smith possessed firearms in connection with 

another felony offense, namely possession of a controlled substance with the 

intent to distribute.” See Watts, 519 U.S. at 154, 157.

The judgment of the district court is AFFIRMED.

Case: 20-60522 Document: 00515853240 Page: 4 Date Filed: 05/07/2021