USA v. Breon D. Hicks

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10104
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BREON D. HICKS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cr-80040-RLR-1
____________________
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2 Opinion of the Court 22-10104
Before NEWSOM , BRANCH , and ANDERSON, Circuit Judges.
PER CURIAM:
Following a jury trial, Breon Hicks appeals his convictions
for possession of a firearm in furtherance of a drug-trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A), and possession of a
firearm by an unlawful user of a controlled substance, in violation
of 18 U.S.C. § 922(g)(3).1 He argues that the district court
erroneously instructed the jury as to the § 924(c) count on which
he was convicted,2 and that there was insufficient evidence to
support his § 922(g)(3) conviction. After review, we affirm.
I. Background
A grand jury charged Hicks in a superseding indictment with
nine drug- and firearm-related counts: (1) possession with intent to
distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(D) (Counts 1, 3, 5, 6, and 9); (2) possession of firearm—a
Masterpiece Arms Model MPA 57, 5.7 x 28 mm semi-automatic
pistol—in furtherance of a drug-trafficking crime in violation of 18
U.S.C. § 924(c)(1)(A) (Count 2); (3) possession of a firearm—a
Glock Model 17, 9mm semi-automatic pistol—in furtherance of a
drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)
1 The jury also found Hicks guilty of six other drug-related and firearm counts,
but he does not appeal those convictions. Therefore, this opinion will focus
only on the two convictions Hicks challenges on appeal.
2 Hicks was acquitted of one § 924(c) count.
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22-10104 Opinion of the Court 3
(Count 4); (4) possession of one or more firearms while being an
unlawful user of a controlled substance in violation of 18 U.S.C.
§ 922(g)(3) (Count 7); and (5) knowingly making a false statement
on a firearms application in violation of 18 U.S.C. § 924(a)(1)(A)
(Count 8).
Briefly, at trial, as relevant to the convictions on appeal, the
evidence established that, following a police surveillance operation
in 2019, Hicks, who was a suspected drug dealer, was pulled over
as part of a traffic stop. During the stop, officers discovered five
pounds of marijuana in the vehicle, over two thousand dollars in
cash, a box of 9-millimeter hollow point ammunition, and a loaded
Glock 17 under the driver’s seat. In a post-arrest interview—
portions of which were played for the jury at trial—Hicks stated
that he initially thought when he was pulled over that he was being
robbed because the officer was in an unmarked car and wearing a
ski mask, and Hicks considered reaching for the gun to protect
himself.
Upon execution of search warrants on the two residences
connected with Hicks,3 police discovered additional boxes and
receipts for other guns, various types of ammunition, a loaded
Masterpiece Arms Model MPA 57 semi-automatic pistol in Hicks’s
3 The police searched Hicks’s residence and the residence of his then-
girlfriend, Jada Brody, which police had observed Hicks visit on numerous
occasions while surveilling him.
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4 Opinion of the Court 22-10104
girlfriend’s bedroom closet, large quantities of marijuana, a digital
scale, plastic baggies, and a vacuum sealing device.4
Jada Brody, Hicks’s girlfriend at the time of the traffic stop,
testified that Hicks dealt marijuana and that he carried a gun every
day that she saw him.5 She said Hicks used the firearms to protect
himself and their home from anyone who might try to rob him.
She explained that she smoked marijuana, but Hicks did not use
marijuana around her.
Hicks testified in his own defense and admitted the
marijuana and guns were his and that he sold “small quantities of
marijuana.” However, he denied any connection between his guns
and his drug activity. He maintained that he did not need firearms
during his drug sales because he dealt with “high end clientele”
4 The evidence from the traffic stop and the search of the residences served as
the basis for Counts 1–5, and 7. Because Hicks appeals his convictions on
Counts 4 and 7, we focus primarily on this evidence. Nevertheless, we note
that, in May 2020, hotel staff at a Courtyard Marriott in Florida discovered a
large amount of marijuana in a hotel room rented by Hicks. Hotel staff
contacted the police and officers seized approximately 22 pounds of marijuana
from the room. This evidence formed the basis of Count 9. And in October
2020, police arrested Hicks at an outlet mall, pursuant to an arrest warrant,
and found a bag filled with marijuana in the trunk of his vehicle, which formed
the basis of Count 6.
5 Both the government and defense counsel brought to the jury’s attention
that Hicks’s ex-girlfriend was facing a separate drug charge for possession of a
large amount of fentanyl, which carried a significant sentence, and that she
was testifying in hopes of getting a reduced sentence.
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22-10104 Opinion of the Court 5
who were “not violent people.” He explained that he had a
“friendly” relationship with his clients.
Hicks stated that the guns were for protection because he
had previously been the victim of a violent crime and “for the [gun]
range.” But he admitted that he would have used the guns to
defend himself if necessary. He denied ever being robbed or
threatened over his marijuana business. He explained that, on the
day of the traffic stop, he left Brody’s house with the Glock and put
it in his car. He stated that he was distracted and forgot that he had
the Glock under the driver’s seat when he was pulled over because
he had been “with a woman that wasn’t [his] girlfriend” that day.
He maintained that the Glock had nothing to do with the
marijuana in the vehicle. He also admitted to using marijuana, but
stated that he was “not accustomed to smoking” and did not do it
often.6 When confronted with his post-arrest statement to police
following the traffic stop, in which he stated that he used marijuana
multiple times every day, Hicks explained that he had “exaggerated
a little bit.”
As relevant to the § 924(c) charges (Counts 2 and 4) for
possession of a firearm in furtherance of a drug-trafficking crime,
Hicks requested that the court add to the pattern jury instruction
that “[t]he mere presence of a firearm in an area where a criminal
act occurred is not sufficient to meet the ‘in furtherance of’
6 Hicks also stated that he had a medical marijuana card, but officers testified
that they could not find any record of Hicks having a medical marijuana card.
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6 Opinion of the Court 22-10104
requirement.”7 The government objected to the addition of the
proposed language, arguing that it was not an accurate reflection
of the law and likely to cause confusion among the jurors. The
district court concluded that the pattern instruction accurately
7 The pattern jury instruction provides as follows:
It’s a separate Federal crime to possess a firearm in furtherance
of a . . . [drug-trafficking crime].
The Defendant can be found guilty of this crime only if all the
following facts are proved beyond a reasonable doubt:
1. that the Defendant committed the . . . [drug-trafficking
crimes] charged in Count __ of the [Superseding] Indictment;
and
2. that the Defendant knowingly possessed a firearm in
furtherance of that crime, as charged in the [Superseding]
Indictment.
A “firearm” is any weapon designed to or readily convertible
to expel a projectile by the action of an explosive. The term
includes the frame or receiver of any such weapon.
To “possess” a firearm is to have direct physical control of the
firearm or to have knowledge of the firearm’s presence and the
ability and intent to later exercise control over the firearm.
Possessing a firearm “in furtherance of ” a crime means that
the firearm helped, promoted, or advanced the crime in some
way.
Eleventh Circuit Pattern Jury Instruction O35.3 (first and second alteration in
original).
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22-10104 Opinion of the Court 7
reflected the law, and it declined to include Hicks’s proposed
language. However, the court explained that Hicks’s counsel could
make the “mere presence” argument to the jury in closing. The
district court later provided the pattern instruction to the jury.
During closing arguments, Hicks’s counsel argued that the
“mere presence” or mere possession of a gun in relation to criminal
activity was not sufficient to support the § 924(c) charges. Rather,
the government had to prove beyond a reasonable doubt that
Hicks “did something with the gun in furtherance of his” drug
dealing. His counsel then emphasized that the guns were for
protection because Hicks was previously “a victim of a crime,” and
the guns had “nothing to do with narcotics.” With regard to the
Glock discovered during the traffic stop, his counsel pointed out
that Hicks forgot the gun was in the car at that time but, regardless,
the government had not shown that the gun was in furtherance of
the drug activity.8
Following deliberations, the jury convicted Hicks of Count
1 and Counts 3 through 9, and acquitted him of Count 2 (the
§ 924(c) charge based on the Masterpiece Arms firearm found in a
closet during a search of his home). This appeal followed.
8 Following the government’s case-in-chief and again at the close of the
evidence, Hicks moved for a judgment of acquittal on all counts, which the
district court denied.
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8 Opinion of the Court 22-10104
II. Discussion
Hicks argues that the district court erroneously instructed
the jury as to the § 924(c) charge, and that there was insufficient
evidence to support his § 922(g)(3) conviction. We address each
argument in turn.
A. The § 924(c) Jury Instruction
Hicks argues that the district court erroneously crafted its
own instruction for the § 924(c) counts, and “in essence, instructed
the [j]ury that mere connection between the firearm and a drug
trafficking crime could support a conviction.” He maintains that
this was a misstatement of the law. As we explain further, Hicks’s
claim is belied by the record.
When, as here, a defendant preserved an objection to the
jury instructions, “[w]e review de novo the legal correctness of jury
instructions but review the phrasing of the instructions for abuse
of discretion.” United States v. Focia, 869 F.3d 1269, 1280 (11th Cir.
2017). Importantly, “[j]ury instructions need not be perfect, and
we review the instructions in light of the entire charge and do not
isolate individual statements in order to contrive error.” United
States v. Ruan, 56 F.4th 1291, 1296 (11th Cir. 2023) (quotations
omitted). “[W]e will not reverse a conviction . . . unless the issues
of law were presented inaccurately, or the charge improperly
guided the jury in such a substantial way as to violate due process.”
Focia, 869 F.3d at 1280 (quotations omitted).
Here, the district court gave the pattern jury instruction for
the § 924(c) charges, which included the statement that
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22-10104 Opinion of the Court 9
“[p]ossessing a firearm ‘in furtherance of’ a crime means that the
firearm helped, promoted, or advanced the crime in some way.”
Although Hicks maintains that the instruction erroneously
permitted the jury to convict him if there was only a “simple
connection” between the guns and the marijuana, the jury
instruction accurately conveyed the law and did not mention
anything about merely requiring a “connection” between the guns
and the drug activity.
Specifically, § 924(c) prohibits using or carrying a firearm in
relation to a drug-trafficking crime as well as possessing a firearm
in furtherance of a drug-trafficking crime. 18 U.S.C. § 924(c)(1)(A).
The statute does not define what it means to be in furtherance of a
drug-trafficking crime, but we have held that “a conviction under
this portion of § 924(c) requires that the prosecution establish that
the firearm helped, furthered, promoted, or advanced the drug
trafficking.” United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir.
2002). Thus, the jury instruction provided in this case accurately
stated the law.9
9 Hicks argues that the jury instruction was “a far cry from” the standard set
forth in the Supreme Court’s Bailey decision, but his reliance on Bailey is
misplaced. Specifically, in Bailey, the Supreme Court held that the term “use”
in § 924(c)(1) required evidence to show “an active employment of the firearm
by that defendant”—mere proximity and accessibility did not suffice. Bailey,
516 U.S. at 143. As we explained in Timmons, however, following the Bailey
decision, Congress amended § 924(c) and added the “in furtherance of”
portion of the statute. Timmons, 283 F.3d at 1252. Hicks was convicted under
the “in furtherance of” provision of § 924(c), which does not require active
employment of the firearm. Instead, as we explained in Timmons, under this
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10 Opinion of the Court 22-10104
To the extent that Hicks quarrels with the district court’s
decision not to include his requested language in the instruction
that “[t]he mere presence of a firearm in an area where a criminal
act occurred is not sufficient to meet the ‘in furtherance of’
requirement,” the district court concluded that the pattern
instruction accurately stated the law and that the addition of the
requested language could generate confusion among the jury. We
cannot say this was an abuse of discretion.
Nevertheless, even assuming arguendo that Hicks is correct
that the instruction was erroneous because it failed to specify that
the mere presence of a gun was insufficient to sustain a § 924(c)
conviction under the “in furtherance of” portion of the statute, we
conclude that any error was harmless. Focia, 869 F.3d at 1280
(explaining that jury instructions are “subject to harmless error
review,” and “[a]n error is harmless if the reviewing court is
satisfied beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained” (quotations omitted)).
Hicks argued to the jury throughout his closing that the mere
presence of a gun was not sufficient and that the government failed
to prove that either of the guns charged in Count 2 and Count 4
were connected to his drug activity. The jury clearly understood
that the mere presence of a firearm was insufficient as a matter of
law to sustain a § 924(c) conviction under the in furtherance of
provision because it acquitted Hicks of Count 2. In other words,
provision, “the prosecution [must] establish that the firearm helped, furthered,
promoted, or advanced the drug trafficking.” Id.
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22-10104 Opinion of the Court 11
the acquittal demonstrates that the jury agreed with Hicks that the
government failed to meet its burden of showing a connection
between the Masterpiece Arms semi-automatic pistol charged in
Count 2—which was found in the master bedroom closet—and the
drug activity. On the other hand, the jury disagreed with Hicks
that the government failed to show a connection between the
Glock found under his driver’s seat during the traffic stop and the
marijuana in the vehicle, as evidenced by the fact that the jury
convicted him of Count 4.10
B. The § 922(g)(3) conviction
Hicks argues that the government failed to present sufficient
evidence to sustain his § 922(g)(3) conviction for possessing a
10 We note that the nexus between the gun and the drug trafficking, “can be
established by the type of drug activity that is being conducted, accessibility of
the firearm, the type of the weapon, . . . whether the gun is loaded, proximity
to the drugs or drug profits, and the time and circumstance under which the
gun is found.” Timmons, 283 F.3d at 1253 (quotations omitted). Here,
although Hicks testified that the Glock found during the traffic stop was not
related to the marijuana, the jury was free to disbelieve this testimony. United
States v. Williams, 390 F.3d 1319, 1325 (11th Cir. 2004) (explaining that “when
a defendant chooses to testify, he runs the risk that if disbelieved the jury might
conclude the opposite of his testimony is true” (quotations omitted)).
Furthermore, the jury could have found a nexus between the gun and the drug
activity based on Brody’s testimony that Hicks carried a gun every day, the
fact that the Glock was loaded and under Hicks’s driver’s seat, and it was in
close proximity to the marijuana in the vehicle. Timmons, 283 F.3d at 1253; see
also Williams, 390 F.3d at 1323 (explaining that “[a] jury is free to choose among
reasonable constructions of the evidence” and “[a]ll credibility choices must
be made in support of the jury’s verdict”).
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12 Opinion of the Court 22-10104
firearm while being an unlawful user of marijuana. He notes that,
although he admitted during his testimony to using marijuana, he
never said how much or how often, and there was no evidence that
he used marijuana on the date of his arrest, at the time he
purchased firearms, or at any time when he was in possession of
firearms.
“We review sufficiency-of-the-evidence challenges de novo,
making all factual and credibility inferences in the government’s
favor.” United States v. Curtin, 78 F.4th 1299, 1305 (11th Cir. 2023)
(alteration adopted) (internal citation omitted) (quotations
omitted). “A jury’s verdict cannot be overturned if any reasonable
construction of the evidence would have allowed the jury to find
the defendant guilty beyond a reasonable doubt.” United States v.
Capers, 708 F.3d 1286, 1297 (11th Cir. 2013) (quotations omitted).
“The evidence need not be inconsistent with every reasonable
hypothesis except guilt, and the jury is free to choose between or
among the reasonable conclusions to be drawn from the evidence
presented at trial.” Id. (quotations omitted).
Under § 922(g)(3), it is “unlawful for any person . . . who is
an unlawful user of or addicted to any controlled substance . . .
to . . . possess in or affecting commerce, any firearm of
ammunition[.]” 18 U.S.C. § 922(g)(3). The term “unlawful user”
is not defined in the statute, see id., and we have not adopted
pattern instructions for § 922(g)(3) offenses. We have, however,
considered the definition of “unlawful user” in the context of a
provision of the Sentencing Guidelines that cross-references
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22-10104 Opinion of the Court 13
§ 922(g) offenses. See United States v. Edmonds, 348 F.3d 950, 953
(11th Cir. 2003).11 In that context, we held that to be an unlawful
user of marijuana, “a defendant’s use must be ongoing and
contemporaneous with the commission of the offense.” Id.
(quoting United States v. Bernardine, 73 F.3d 1078, 1082 (11th
Cir.1996)). However, we clarified that the government is not
required to show that the use was simultaneous with the firearm
possession or that the defendant was under the influence at the
time of the possession. Id.
Here, sufficient evidence was presented at Hicks’s trial that
he was an unlawful user of marijuana contemporaneously with his
possession of firearms. At Hicks’s home and in his vehicle, officers
discovered marijuana, and Hicks testified that he used marijuana.
Although he never specified as part of his trial testimony how
much he used or when he used marijuana, the government
presented his post-arrest statement in which he told officers that he
used marijuana multiple times every day. The jury was entitled to
credit this evidence over Hicks’s trial testimony that this statement
was simply an exaggeration and that he was not accustomed to
11 In Edmonds, we interpreted § 2K2.1 of the guidelines, which provides for a
specific base offense level if the offense involved a firearm and the person was
a “prohibited person.” 348 F.3d at 953 (citing U.S.S.G. § 2K2.1(a)(4)(B)). And
we explained that the guidelines defined a “prohibited person” by reference to
any person described in § 922(g), which includes a person “who is an unlawful
user of or addicted to any controlled substance.” Id. (quoting U.S.S.G. § 2K2.1,
cmt. (n.6)—we note that (n.6) now appears as (n.3) in the current guidelines).
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14 Opinion of the Court 22-10104
smoking marijuana.12 Williams, 390 F.3d at 1325 (explaining that
“when a defendant chooses to testify, he runs the risk that if
disbelieved the jury might conclude the opposite of his testimony
is true” (quotations omitted)). Accordingly, viewing the evidence
in the light most favorable to the government, we conclude that
Hicks’s § 922(g)(3) conviction was supported by sufficient
evidence.
AFFIRMED.
12 Hicks also maintains that the government argued that he was addicted to
marijuana, but that the government failed to prove such an addiction. We
need not address this argument because as discussed above § 922(g)(3) makes
it “unlawful for any person . . . who is an unlawful user of or addicted to any
controlled substance . . . to . . . possess in or affecting commerce, any firearm
of ammunition.” Thus, the government needed to show either that Hicks was
an unlawful user of a controlled substance or that Hicks was addicted to a
controlled substance; it did not have to prove both. And, here, the
government presented sufficient evidence to show that Hicks was an unlawful
user.
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