# United States Court **of Appeals**  **f or 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* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstanc es set forth in **5th Cir cuit**  **R ule**  47.5.4.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: 05/07/2021No. 20

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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 n otices 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 sufficie ncy 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 th at 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, t he 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 testimon y 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: 05/07/2021No. 20

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3 was sufficient for a rational juror to return a guilty ver dict 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 Victo r 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 d escribed 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 f irearm , which was found with the marijuana in his safe. Further, Michael admitted to the police that he knew there w ere 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. Th is 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: 05/07/2021No. 20

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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 sto red 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 o ut 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 dist ribute.” 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