USCA11 Case: 23-11306 Document: 27-1 Date Filed: 01/03/2024 Page: 1 of 12

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 23-11306 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SEAN S. SCOTT,

Defendant-Appellant.

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Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 4:22-cr-00021-MW-MAF-1 ____________________ USCA11 Case: 23-11306 Document: 27-1 Date Filed: 01/03/2024 Page: 2 of 12

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Before WILSON, LUCK, and ANDERSON, Circuit Judges. PER CURIAM: Sean Scott appeals his conviction for possession of a firearm in relation to or in furtherance of a drug trafficking crime. On ap- peal, he argues that there was insufficient evidence to establish the requisite connection or nexus between his possession of a firearm and his drug offense, because he legally owned the firearm for self-protection and there was no evidence to suggest that he be- lieved that he needed a gun during the drug deal. He also argues on appeal that the government engaged in prosecutorial miscon- duct by misstating the law during closing arguments and errone- ously opening the door for the jury to misinterpret the legal stand- ard. I. Where a defendant does not move the district court for a judgment of acquittal at the close of all evidence, we will reverse his conviction only “to prevent a manifest miscarriage of justice.” United States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006). “This standard requires a finding that the evidence on a key element of the offense is so tenuous that a conviction would be shocking.” Id. (quotation marks omitted). In determining whether this standard is met, we “must view the evidence in the light most favorable to the government and accept all reasonable inferences and credibility determinations that support the jury’s verdict. Id. USCA11 Case: 23-11306 Document: 27-1 Date Filed: 01/03/2024 Page: 3 of 12

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The evidence will be sufficient to support a conviction if a reasonable trier of fact could find that the evidence established the defendant’s guilt beyond a reasonable doubt. United States v. Jiminez, 564 F.3d 1280, 1284-85 (11th Cir. 2009). It is not enough for a defendant to put forth a reasonable hypothesis of innocence, because the issue is not whether the jury reasonably could have acquitted, but whether it reasonably could have found the defend- ant guilty. Id. at 1285. Although the evidence need not exclude every reasonable hypothesis of innocence, we will not affirm a con- viction predicated on “conjecture.” United States v. Toler, 144 F.3d 1423, 1433 (11th Cir. 1998). This test for sufficiency is the same, regardless of whether the evidence is direct or circumstantial, but where the government relied on circumstantial evidence, reasona- ble inferences must support the conviction. United States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015). “A jury’s verdict cannot be over- turned if any reasonable construction of the evidence would have allowed the jury to find the defendant guilty beyond a reasonable doubt.” United States v. Watts, 896 F.3d 1245, 1251 (11th Cir. 2018) (quotation marks omitted). “[A] statement by a defendant, if disbelieved by the jury, may be considered as substantive evidence of the defendant’s guilt.” United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (emphasis in original). In this context, “substantive evidence” means evi- dence “adduced for the purpose of proving a fact in issue, as op- posed to evidence given for the purpose of discrediting a wit- ness . . . or of corroborating his testimony.” Id. (quotation marks omitted). In other words, we have stated that, “when a defendant USCA11 Case: 23-11306 Document: 27-1 Date Filed: 01/03/2024 Page: 4 of 12

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chooses to testify, he runs the risk that if disbelieved the jury might conclude the opposite of his testimony is true.” Id. (quotation marks omitted). However, a jury’s disbelief of a testifying defend- ant cannot be used as the sole basis to support a conviction, in the absence of other probative evidence in support thereof. United States v. McCarrick, 294 F.3d 1286, 1293 (11th Cir. 2002). We are “bound to follow a prior panel’s holding unless and until it is over- ruled or undermined to the point of abrogation by an opinion of the Supreme Court or of this Court sitting en banc.” United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019). Section 924(c)(1)(A) of Title 18 of the U.S. Code provides for enhanced criminal penalties for “any person who, during and in re- lation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, pos- sesses a firearm.” 18 U.S.C. § 924(c)(1)(A); United States v. Haile, 685 F.3d 1211, 1217 (11th Cir. 2012). To support a conviction under § 924(c)(1)(A), the government must prove either of two prongs: the “during and in relation to . . . uses or carries” prong or the “in furtherance of . . . possesses” prong. Haile, 685 F.3d at 1217 (quo- tation marks omitted, alterations in original). To sustain a conviction under the “carries” branch of the first prong, “the government must show actual transporting of the firearm during and in relation to the drug trafficking offense—i.e., that the defendant carried the firearm on his person or carried the firearm in a vehicle used for drug distribution during and in relation to the drug trafficking offense.” United States v. Chirinos, 112 F.3d USCA11 Case: 23-11306 Document: 27-1 Date Filed: 01/03/2024 Page: 5 of 12

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1089, 1095 (11th Cir. 1997). The “in relation to” element of this prong is expansive, and “at a minimum, [it] clarifies that the firearm must have some purpose or effect with respect to the drug traffick- ing crime; its presence or involvement cannot be the result of acci- dent or coincidence.” Smith v. United States, 508 U.S. 223, 237-38 (1993). The “in relation to” element “allay[s] explicitly the concern that a person could be punished under § 924(c)(1) for committing a drug trafficking offense while in possession of a firearm even though the firearm’s presence is coincidental or entirely unrelated to the crime.” Id. at 238 (quotation marks omitted, alteration in original). To be “in relation to” a drug trafficking offense, the fire- arm “at least must facilitat[e], or ha[ve] the potential of facilitating,” the offense. Id. (quotation marks omitted, alteration in original). Additionally, the Supreme Court has stated that a firearm “merely facilitates” a drug trafficking offense when it provides “a means of protection or intimidation.” Id. To support a conviction under the “in furtherance of” prong, the government must establish that a defendant’s posses- sion of a firearm “helped, furthered, promoted, or advanced” the drug trafficking crime. United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002). “[T]he presence of a gun within the defend- ant’s dominion and control during a drug trafficking offense is not sufficient by itself to sustain a § 924(c) conviction.” Id. at 1253. Ra- ther, the government must show “some nexus between the firearm and the drug selling operation.” Id. (quotation marks omitted). We have articulated factors that are used to determine the presence of a sufficient nexus between a firearm and drug trafficking: USCA11 Case: 23-11306 Document: 27-1 Date Filed: 01/03/2024 Page: 6 of 12

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the type of drug activity that is being conducted, ac- cessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the pos- session (legitimate or illegal), whether the gun is loaded, proximity to the drugs or drug profits, and the time and circumstances under which the gun is found. Id. at 1253 (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)). We have recognized that “[t]here is a frequent and overpow- ering connection between the use of firearms and narcotics traffic.” United States v. Cruz, 805 F.2d 1464, 1474 (11th Cir. 1986); see also United States v. Hromada, 49 F.3d 685, 689 (11th Cir. 1995) (“Guns . . . go hand‑in‑hand with illegal drug operations.”); United States v. Lopez, 649 F.3d 1222, 1242 (11th Cir. 2011) (“[A]s Forrest Gump might say, drugs and guns go together like peas and carrots.”); United States v. Martin, 794 F.2d 1531, 1533 (11th Cir. 1986) (describ- ing firearms as “tools of the trade” in drug trafficking). Here, Scott failed to renew his motion for a judgment of ac- quittal at the close of all evidence, so his conviction may only be reversed where necessary “to prevent a manifest miscarriage of jus- tice.” Milkintas, 470 F.3d at 1343. Scott has failed to show that the affirmance of his conviction under Count Two would result in a miscarriage of justice. When reviewing all evidence in the light most favorable to the government and drawing all reasonable in- ferences and credibility determinations in support of the verdict, USCA11 Case: 23-11306 Document: 27-1 Date Filed: 01/03/2024 Page: 7 of 12

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the evidence presented at trial is sufficient to support a finding by a reasonable jury that Scott possessed the firearm “in relation to” or “in furtherance of” the drug crime. Milkintas, 470 F.3d at 1343; Watts, 896 F.3d at 1251. Scott correctly notes that § 924(c)(1)(A) does not allow for one to be convicted when his possession of a firearm is coincidental and entirely unrelated to the simultaneous drug trafficking crime. Smith, 508 U.S. at 238. However, a defend- ant’s possession of a firearm goes beyond coincidence when it pro- vides “a means of protection or intimidation” during the perpetra- tion of a drug crime. Id. In Scott’s case, the evidence presented at trial, when all in- ferences are drawn in favor of the verdict, supports a reasonable finding that his possession of the firearm facilitated the drug deal by providing him protection for himself, the marijuana, and the cash that he expected to receive from Cauley. He knowingly car- ried the firearm with him during his four-hour drive from Orlando to Tallahassee to meet a man he had never met before, and he ex- pressed concerns over his safety in text messages to Cauley. While Scott testified that he owned the firearm for general self-protection and always kept it in his vehicle when he travelled, the jury could reasonably have found this testimony incredible and found instead that he possessed the gun for the purpose of protect- ing himself during the drug deal. Brown, 53 F.3d at 314. While the purported disbelief of Scott’s testimony could not support his con- viction on its own, the government also put forth evidence that drug dealers are at a high risk for robbery, and evidence that Scott USCA11 Case: 23-11306 Document: 27-1 Date Filed: 01/03/2024 Page: 8 of 12

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re-assembled and loaded the firearm between the first and second traffic stops. McCarrick, 294 F.3d at 1293. Additionally, to the de- gree that Scott argues that Brown is inapplicable to his case because it stands for a misstatement of law, this Court is bound by the prior panel precedent rule. Gillis, 938 F.3d at 1198. Moreover, Scott’s argument that Brown relieves the government of its burden of proof is unfounded, because this Court has clearly stated that Brown does not allow for a conviction based solely on the defend- ant’s testimony absent additional probative and relevant corrobo- rative evidence. McCarrick, 294 F.3d at 1293. And there is ample corroborative evidence in this case that Scott’s gun was there “in furtherance of” the drug crime—e.g. that Scott reassembled and loaded the weapon when (or before) he picked up the marijuana so as to provide protection for the enhanced risk posed by the pres- ence of $25,000 of marijuana in the car, and evidence that Scott was concerned about his safety during the drug transaction. As for the “in furtherance of” prong of § 924(c)(1)(A), the government also put forth sufficient evidence to support Scott’s conviction under the miscarriage of justice standard. Scott cor- rectly states that the mere presence of a firearm is insufficient to support a conviction § 924(c)(1)(A), and he argues that some of the Timmons factors cut against a finding of a nexus between his firearm possession and his drug crime. Timmons, 283 F.3d at 1253. How- ever, other factors support a reasonable finding to the contrary. Scott’s firearm was easily accessible in the center console of his ve- hicle while he conducted a long-distance attempt to sell 20 pounds of marijuana for $25,000. Id. The government also presented USCA11 Case: 23-11306 Document: 27-1 Date Filed: 01/03/2024 Page: 9 of 12

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evidence that the firearm was loaded when it was found during the second traffic stop, along with evidence that Scott was meeting a man whom he had never met before and had expressed some con- cern over his safety. Timmons, 283 F.3d at 1253. Additionally, this Court has regularly articulated an understanding of an inherent connection between illegal drugs and firearms. Cruz, 805 F.2d at 1474; also see Hromada, 49 F.3d at 689; Lopez, 649 F.3d at 1242; Mar- tin, 794 F.2d at 1533. In light of the Timmons factors and precedent of this Court, the government’s evidence was sufficient to support a reasonable finding of a nexus between Scott’s possession of the firearm and his drug trafficking offense. Timmons, 283 F.3d at 1253. As for either prong of § 924(c)(1)(A), the government’s evi- dence was not so lacking as to require “a finding that the evidence on a key element of the offense is so tenuous that a conviction would be shocking.” Milkintas, 470 F.3d at 1343 (quotation marks omitted). Thus, there was sufficient evidence to support Scott’s conviction under the “manifest miscarriage of justice standard.” Accordingly, we affirm as to this issue. II. Where a defendant raises a prosecutorial misconduct claim for the first time on appeal, we review only for plain error. United States v. Frank, 599 F.3d 1221, 1238 (11th Cir. 2010). “Under plain-error review, the defendant has the burden to show that there is (1) error (2) that is plain and (3) that affect[s] substantial rights.” United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003) (quota- tion marks omitted, alteration in original). If all three requirements USCA11 Case: 23-11306 Document: 27-1 Date Filed: 01/03/2024 Page: 10 of 12

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are met, we may reverse only if the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation marks omitted, alteration in original). An error “af- fect[s] a substantial right of a party if [it] ha[s] a substantial influence on the outcome of a case or leave[s] grave doubt as to whether [it] affected the outcome of a case.” United States v. Cruickshank, 837 F.3d 1182, 1191 (11th Cir. 2016) (quotation marks omitted). “[W]here the effect of an error on the result in the district court is uncertain or indeterminate, the defendant has not met his burden of demonstrating prejudice for purposes of plain error review. Id. (quotation marks omitted). “It is the law of this [Court] that, at least where the explicit language of a statute or rule does not specifically resolve an issue, there can be no plain error where there is no precedent from the Supreme Court or this Court directly resolving it.” United States v. Curtin, 78 F.4th 1299, 1310 (11th Cir. 2023) (quotation marks omit- ted). “[A] close call is not enough for [an appellant] to prevail on plain error review.” United States v. Kushmaul, 984 F.3d 1359, 1367 (11th Cir. 2021). “To find prosecutorial misconduct, a two-element test must be met: (1) the questions or comments must be improper, and (2) the questions or comments must prejudicially affect the sub- stantial rights of the defendant.” United States v. Schmitz, 634 F.3d 1247, 1267 (11th Cir. 2011). However, an error stemming from prosecutorial misconduct is harmless “[w]hen the record contains sufficient independent evidence of guilt.” United States v. Eckhardt, USCA11 Case: 23-11306 Document: 27-1 Date Filed: 01/03/2024 Page: 11 of 12

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466 F.3d 938, 947 (11th Cir. 2006). “[A] slight misstatement of the law by a prosecutor can be rendered harmless by the court’s proper instructions to the jury.” United States v. Granville, 716 F.2d 819, 822 (11th Cir. 1983), on reh’g, 736 F.2d 1480 (11th Cir. 1984). To preju- dicially affect a defendant’s substantial rights, a prosecutor’s im- proper conduct must be “so pronounced and persistent that it per- meate[d] the entire atmosphere of the trial.” United States v. Cooper, 926 F.3d 718, 739 (11th Cir. 2019) (quotation marks omitted, alter- ation in original). To assess the prejudicial effect of improper state- ments, we review them “in context.” United States v. Stefan, 784 F.2d 1093, 1100 (11th Cir. 1986). Here, Scott has failed to prove a successful prosecutorial misconduct claim under the plain error standard of review. The primary statement challenged by Scott included the government’s contention that it had presented sufficient evidence to prove that (1) Scott possessed the firearm intentionally, and (2) the firearm had the potential to facilitate the drug crime by providing Scott a means of protection during his perpetration of the crime. These statements, when viewed in proper context, are not a misstatement of the law, but rather an accurate description of the proper legal test for determining whether one’s possession of a firearm was “in relation to” a drug trafficking offense. Moreover, to the degree the government’s statements contained any minor misstatement of the law, the court rectified them by providing jury instructions with a correct statement of the law. Granville, 716 F.2d at 822. Addition- ally, even if the government’s statements were an unrectified legal error, any such error was harmless in light of the independent USCA11 Case: 23-11306 Document: 27-1 Date Filed: 01/03/2024 Page: 12 of 12

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evidence establishing Scott’s guilt, as discussed previously. Scott’s challenge to the government’s conduct concerns primarily one statement during closing arguments, and he essentially makes no argument that the government’s allegedly improper conduct was “so pronounced and persistent that it permeate[d] the entire atmos- phere of the trial.” Cooper, 926 F.3d at 739 (quotation marks omit- ted, alteration in original). Accordingly, we affirm as to this issue. For the foregoing reasons, the judgment of the district court is AFFIRMED.