NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0262n.06 No. 09-5382 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. STEVEN E. SHI PE, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF TEN NESSEE

Be fore : GUY, COOK, a

nd STRANCH, Circuit J udg es. COOK, Circuit J u d g e. On Fe bruar y 14, 2008, two office rs tapped on Steven Shipe’s car window as he attempted to sell coca ine to Amanda Gre g g . I n a bag betwee n Shipe’s leg s, the office rs found t wo bags of coca ine and some cash. On the ca r’s c enter console, the of

fice rs found a digital scale and a residue- cover ed spoon. And under a remova ble cupholder on this console, they found an unloaded .40- caliber

semiautomatic pistol nex t to a fully loaded mag azine.
A fede ral g rand jury indicted Shipe for possessing coca ine with intent to distribute, 21 U.S.C. § 841(a) (1), (b)( 1)(C), and car rying a firea

rm in rela tion to a drug -traf ficking offe nse, 1 8 U.S.C. § 924(c)
. Shipe pleade d g uilty to the traff icking char g e but proce eded to trial on the wea pons char g e.
The trial focuse d on whether Shipe car ried his pistol “in rela tion to” the drug sale, as § 924(c) require s. The g overnme nt a rg ued that the pistol provided Shipe w ith sa le-re lated secur ity , wher easNo. 09-5382

United States v. Shipe Shipe contende d that its prese nce in his vehicle was mere coincidenc e. He claimed that he place d the pistol and some other high- end items in his c ar about a wee k ear lier, hoping to pawn them, and that he hid the pistol in the co n s o l e t o av o id theft. By the time of the drug deal, he asser ted, he had forg otten that it even wa s there. Shipe unsucce ssfully moved for acquittal based on insu fficie nt evidenc e at the close of the g overnme nt’s case , but failed to rene w that motion at the close of all the evidenc e. The jury convicted Shipe, and the cour

t sentence d him to 66 mont hs’ imprisonment.
I
. Shipe challeng es the district court’s denial of his motion fo r ac q uittal, contending that the g overnme nt failed to prove that he car ried his pistol “in rela

tion to” his traff

icking
. See 18 U.S.C. § 924(c) (1)( A). Be cause Shipe neg lected to rene w his motion at the close of all the evidenc e, we limit
our revie w “to deter

mining whether there was a manifest miscarr iag e of justice,” which “occ urs only if the rec ord is devoid of evidenc e pointing to g uilt.” United States v. Childs , 539 F.3d 552, 558 (6th Cir. 2008) (interna l quotation marks and citation omitted). No such void e x ists here.
To prove § 924(c) ’s “in rela tion to” require ment, the g overnme nt must show that the prese nce of Shipe’s pistol in his vehicle was more than “the result of acc ident or coincidenc e.” Smith v. United States , 508 U.S. 223, 238 (1993). Shipe must have “intended to have the [pi stol] available for use during
. . . the [drug] transac tion,” or the pistol must have “fa cilitated the cr i m e by emboldening [hi m] .” United States v. W arwick , 167 F.3d 965, 971 ( 6th Cir. 1999).

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United States v. Shipe Citi ng a number o f c a s e s r e it erating these require ments, Shipe contends that the jury convicted him based on the “mer e prese nce” of the pistol in his ve hicle. The g overnme nt, he claims, failed to provide evidenc e that the pistol—t here only to be pawne d—fac ilitated his traff icking in a

ny way . But the rec ord contains evidenc e that S h i p e’s pistol provided secur ity , “fa cilitat[ ing] [hi s] crime by emboldening [hi m] .” See id. One of the arr esting office rs testified that most drug deale rs
car ry firea rms for p rotec tion, and that the pistol’s location and orientation under the console’s cupholder made it rea dily acc es s i b l e t o the driver. And Gre g g , his would-be coca ine purcha ser, testified that, when she enter ed Shipe’s car , the pistol had an even more predominant prese nce: she saw it in the t op compar

tment of t he console next to Shipe’s scale, spoon, a nd drug s. Shipe’s easy
acces s t o t he pistol during the drug deal, along with its place ment near or among his drug para pherna lia, constitute evidenc e that he car ried it for peac e of mind, and thus “in rela tion to
. . . [hi s] crime.” 18 U.S.C. § 924(c) (1)( A). Resisting this conclusion, Shipe highlig hts inconsistencie s in the testimony of the g overnme nt’s witnesses and insists that he intended to pawn the pistol. But these are matters of
cre dibilit y bey ond the s cope o f o u r l imited revie w. Be cause we find that the record is not “devoid of evide nce pointing to guilt,” we look no further
. Childs , 539 F.3d at 558.
I I
. For these re asons, we a ffirm.

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