[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 11312 Non

- Argument Calendar

________________________ D.C. Docket No. 9:17

- cr - 80082

- KAM

- 2

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

v ersus JON KYLE FRENCH , ALLEN JAMES SWEETENBERG, Defendants

- Appellants.

________________________ Appeal s from the United States District Court for the Southern District of Florida

________________________ Befo re WILLIAM PRYOR , GRANT and ANDERSON , Circuit Judges.
PER CURIAM: Allen Sweetenberg and John French appeal the ir convictions and sentences arising from their armed theft of marijuana

. Sweetenberg challenges the denial of

Case: 18-11312 Date Filed: 03/25/2019 Page: 1 of 72 his motion for a judgment to acq uit him of possessin g with intent to distribute a controlled substance , 21 U.S.C. § 841(a)(1) ; 18 U.S.C. § 2 , and the two

- level enhancement of his base offense level for possession of a firearm, United States Sentencing Guidelines Manual § 2D1.1( b ) (Nov. 2016). French challenges two evidentiary rulings and the use of his prior conviction s for robbery, Fla. Stat. § 812.13(1), to enhance his sentence under the A rmed C areer C riminal Act, 18 U.S.C. § 924(e)

. We affirm. We apply four standards of review in this appeal. We review the denial of a motion for a judgment of acquittal de novo and draw all inferences from the evidence in favor of the government

. See United States v. Evans , 473 F.3d 1115, 1118 (11th Cir. 2006)

. We also review de novo the applicat ion of the Sentencing Guidelines to findings of fact, which we review for clear error. See United States v. Pham , 463 F.3d 1239, 1245 (11 th Cir. 2006). “ Evidentiary rulings by the district court are reviewed for an abuse of discretion .” United States v. Spoerke , 568 F.3d 1236, 1244 (11th Cir. 2009)

. But issues not presented to the district court are reviewed for plain error. See United States v. Straub , 508 F.3d 1003, 1101 (11 th Cir. 2007). Under t hat standard , the defendant must prove that error occurred that is plain and that affect ed his substantial rights. Id. We review de novo whether a prior conviction counts as a predicate offense under the Armed Career Criminal
Act. United States v. Howard , 742 F.3d 1334, 1341 (11 th Cir. 2014).

Case: 18-11312 Date Filed: 03/25/2019 Page: 2 of 73 The district court did not err in denying Sweetenberg’s motion for a judgment of acquittal. T estimon y from Sweetenberg’s girlfriend, Lashareesha Mays, his victims, Kason Lindor and Velton Riggon, and the i nvestigator who searched Mays’s car, Daniel Bauder of the Riviera Beach Police Department , proved that Sweetenberg possessed a backpack that he knew contained marijuana.
See 21 U.S.C. § 841(a)(1). The jury could have reasonably f ou nd that Sweetenberg knowingly took possession of marijuana based on the evidence that he witnessed French ’s negotiati o n s with Lindor and Riggon, that he pilfered their backpack contai ning marijuana, and that he returned to Mays’s car with the backpack after
ask ing her to drive him and French to a “transaction , ” which was a word that Sweetenberg used r outine ly to r efer to a drug deal

. See United States v. Derose , 74 F.3d 1177, 1185 (11 th Cir. 1996) (defining actual possession as “physical possession or . . . actual personal dominion over the thing allegedly possessed”). The jury also could have reasonably found t hat Sweetenberg knew the bag contained marijuana based on its “obvious” smell detected by Investigator Bauder and his discovery of paraphernalia commonly used to package marijuana for sale near Sweetenberg’s wallet

. And the jury could consider as further consciousness of guilt the evidence that Sweetenberg fled on foot when he saw a p olice car . See United States v. Borders , 693 F.2d 1318, 1324 (11th Cir. 1982)

. Ample evidence

Case: 18-11312 Date Filed: 03/25/2019 Page: 3 of 74 supported the decision to deny Sweetenberg’s motion and to submit the case to the jury. Even if we were to assume that the district court erred by increasing Sweetenberg’s base offense level based on French’s possession of a firearm in connection with drug trafficking, U.S.S.G. § 2D1.1(b)(1), that error was harmless
because it did not affect Sweetenberg’ s sentence

. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded”). The addition of the two

- point enhancement to Sweetenberg’s base offense level of 8, U.S.S.G. § 2D1.1( c ), made no difference because the
district court a djusted his offense level t o 17 for being a career offender , id. § 4B1.1(b)(6)

. E rrors in admitting a photograph of French’s tattoo over his objection about its prejudicial effect and in denying his motion for a mistrial after being asked twice whether he was “a member of the black mafia family” were , at most, harmless in the light of the overwhelming evidence of his guilt

. See United States v. Phaknikone , 605 F.3d 1099, 1109 (11th Cir. 20 10)

. Testimony and forensic evidence proved that French unlawfully possess ed a firearm, 18 U.S.C. § 922(g),

us ed th e firearm in furtherance of a drug trafficking crime, id. § 924(c), possess ed with intent to distribute marijuana, 21 U.S.C. § 841(a)(1), and conspir ed to tamper with government witnesses, 18 U.S.C. § 1512

. T estimony from Mays, Lindor, and

Case: 18-11312 Date Filed: 03/25/2019 Page: 4 of 75 Riggon proved that French forcibly took possession of more than 1,000 grams of marijuana using a long

- barreled revolver , which h e tossed o ut the wi n dow of Mays’s vehicle while they attempt ed to outrun the police

. T he police discovered a revolver on the route Mays drove during the high

- speed chase that matched the firearm descri b ed by Riggon and that was covered in French’s genetic material.
See 18 U.S .C. §§ 922(g), 924(c); 21 U.S.C. § 841(a)(1). A udio recordings of telephone calls that French made from jail also proved that he conspired to have cohorts entice or intimidate government witnesses t o change their stories or to refuse to testify against him. See 18 U.S.C. § 1512(b)(1), (k)

. Moreover, because French decided to testify, the jury was entitled to disbelieve his story that two strangers committed the robbery and to consider his testimony a s substantive evidence of his guilt. See United States v. Brown , 5 3 F.3d 312, 314 (11 th Cir. 1995). In the light of t he substantial evidence o f French’s guilt , the photograph of his tattoo and the two questions about his gang membership had no “ substantial and injurious effect or influence ” on the jury

. See Phaknikone , 605 F.3d at 1109

. And the district court further eradicated any possible prejudic e c aused by the references to the gang by instructing the jury to “disregard the question . . . abo ut any affiliation that [French] might have

. ” See United States v. Lopez , 590 F.3d 1238, 1256 (11th Cir. 2009).

Case: 18-11312 Date Filed: 03/25/2019 Page: 5 of 76 French argues, for the first time, that the government used the photograph of his tattoo impermissibly to portray him as a violent person , see Fed. R. Evid. 404(b), but the admission of the photograph did not constitute plain error. We cannot say that the photograph affected French’s substantial rights when t he government admitted without obj ection other evidence of French’s penchant for violence. See Straub , 508 F.3d at 1101. Lindor and Riggon testified that French
str uck Riggon in the head with the revolver without cause . And the jury heard audio recordings of French’s te lephone calls from j ail in which he bragged that he

was “gonna put a check on a niggas head,” and would “play this on the inside” to “make them niggas [Lindor and Riggon] do the right thing,” and that he had “to push their hand” by “run[ning] them . . . on some aggressive shi *,” “pop right up on they ass . . . [and] scare the shi* out of them,” and let them know they were “ on [his] list.” French concedes that his c hallenge to the use of his prior convictions to enhance his sentence is foreclosed by binding precedent. We held in United States
v. Fritts , 841 F.3d 937, 940 (11th Cir. 2016) , that a conviction for robbery under section 912.13 of the Florida Statute s c ategorically qualifies as a violent felony under the elements clause of the Armed Career Criminal Act. And recently the United States Supreme Court reached the same conclusion in Stokeling v. United

Case: 18-11312 Date Filed: 03/25/2019 Page: 6 of 77 States , 139 S. Ct. 544 (2019) . The district court correctly counted French’s prior convictions as predicate offenses under the Act

. We AFFIRM Sweetenb e rg ’s and French’s convictions and sentences. Case: 18-11312 Date Filed: 03/25/2019 Page: 7 of 7