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United States v. George

United States Court of Appeals, Eleventh Circuit

October 6, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
VERGIL VLADIMIR GEORGE, Defendant-Appellant.

         Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cr-20821-JEM-1

          Before HULL, JORDAN, and GILMAN, [*] Circuit Judges.

          HULL, Circuit Judge

         Defendant Vergil George appeals his total 259-month sentence, imposed after a jury convicted him of multiple crimes stemming from his drug-dealing and identity-theft activities. After careful review of the briefs and the record, and with the benefit of oral argument, we conclude the district court did not clearly err in applying the firearm enhancement under U.S.S.G. § 2D1.1(b)(1) and the premises enhancement under § 2D1.1(b)(12). However, the district court plainly erred in not allowing George to allocute before pronouncing sentence. Thus, we vacate and remand for resentencing.

         I. FACTUAL BACKGROUND

         The following facts were established at George's trial.

         Defendant George met Chris Pinkow when George responded to an advertisement for luxury car rentals. Pinkow owned an exotic-car rental company and was also, unbeknownst to George, an informant for the Federal Bureau of Investigation ("FBI").[1] George agreed to rent a Porsche Panamera from Pinkow for $9, 000 per month.

         Pinkow often met with George at George's apartment to collect the rental payment. Pinkow also accompanied George "[m]any times" as George drove around picking up large sums of money from various homes and people on street corners, and George would then give the money to Pinkow as payment for the car rental.

         Pinkow introduced George to Cesar Ernesto Velez, a licensed barber, when George was planning to open a barbershop salon. Velez helped George hire barbers and manage and promote the salon, in exchange for having a rent-free booth at the salon. The salon opened in early September 2015, but by the time George was arrested, Velez was the only barber still working at the salon because the other two had quit.

         Velez explained that the salon was divided into two separate rooms. The front room contained the barber shop. The back room, however, contained "computers . . . and certain machines . . . different things that were suspicious." Velez told the jury that he saw laptops, phones, embossing machines, and card-scanning machines in the back room, items that had "nothing to do with the barber business" operating in the front room of the salon. Velez testified that he once saw a duffel bag "pretty much filled with like gift cards, credit cards, debit cards." Velez also saw scales and heat sealers in the salon, and George once showed him a firearm that he kept under the desk at the front of the salon. George once offered to sell Velez cocaine for $32, 000 per kilogram.

         According to Velez, George's "friends" were also frequently in the back room of the salon, and Velez saw George giving these men "direction[s]." Velez said, "all the other guys were pretty much listening to what he said. He was - they couldn't operate without him."

         Pinkow also rented luxury cars to Vincent Banner, a "very successful" drug dealer specializing in marijuana and variations of marijuana.[2] In June 2015, Banner accompanied Pinkow to George's apartment. Banner brought one or two duffle bags filled with marijuana with him and, once inside George's apartment, Banner sold the marijuana to George. Pinkow testified that Banner sold George four pounds of marijuana for $10, 000 total, but Banner testified that he sold George only two pounds of marijuana for $2, 500 apiece. While in George's apartment, Pinkow saw two other men, packaging equipment, scales, heat sealing machines, and firearms. Banner, however, testified to seeing only "scales and the money" and one other person in George's apartment.[3]

         In August 2015, George asked Banner if he could purchase more marijuana-specifically, he wanted to buy three pounds of marijuana, an amount that Banner explained far exceeded the amount necessary for personal use.

         Pinkow testified that he visited George's salon on occasion. Pinkow told the jury that he saw a firearm behind the reception area of the salon, and he saw handguns in the back room. Pinkow explained that there was a "kitchen type area" in the back room, and Pinkow saw heat sealing machines, packaging equipment, bags of marijuana, and loose marijuana "sprinkled all over the table" in that back area. George told Pinkow that he made money at the salon "through the sale of marijuana, cocaine, things like that."

         In early August 2015, while Pinkow was at George's salon, George offered to sell Pinkow six kilograms of cocaine for $30, 000 per kilogram. Pinkow told George that he "had a couple people that [he] could check with" about purchasing the cocaine. Pinkow and George continued to discuss the cocaine sale afterwards, with Pinkow placing two phone calls to George on August 15, 2015, both of which were recorded and played for the jury at trial. In the first recording, George told Pinkow that he had six "birds" (slang for kilograms) for sale and to tell "him, " meaning the prospective buyer that the price was "30, " meaning $30, 000. In the second recording, George asked Pinkow if "he, " again meaning the prospective buyer, would take all six kilograms, and Pinkow replied that he was "pretty sure" the buyer would. George then told Pinkow that he would "bring them back by tomorrow, " which Pinkow took to mean that George would have to leave town, pick up the drugs, and come back.

         On October 7, 2015, Pinkow visited the salon again. He had a recorder from the FBI, and the recording from that day was played for the jury. On the recording, George told Pinkow that he "got rid" of the six kilograms of cocaine, which Pinkow understood to mean that George had sold it himself. Pinkow told George he needed a "hammer, " meaning a gun, and George agreed to get him one for $200.

         On cross-examination, Pinkow admitted that, while he saw George selling marijuana in his apartment and at the salon, he never saw the six kilograms of cocaine.

         On October 8, 2015, the FBI executed a search warrant at George's salon. FBI Agent Adriene Sullivan participated in the search and testified that agents found heat sealers, scales, marijuana, a drug kit, and cocaine residue in the front of the salon. Agents also found a firearm behind the reception desk, which was right by the front door. In the separate, back section of the salon, agents found: (1) a box of ammunition for a different firearm; (2) a credit card embosser; (3) a computer[4]; (4) devices used to read credit cards ("skimmers"); (5) stacks of prepaid gift cards; (6) numerous cell phones; (7) numerous credit cards; (8) a thumb drive; and (9) a Western Union card. On cross-examination, Sullivan admitted that the firearm was not found on George's person, that the firearm was not submitted for fingerprint or DNA testing, and that the search did not turn up any felony quantities of drugs.

         FBI Agent Allen Klimesh interviewed George after his arrest, and the recorded interview was played for the jury. George admitted during that interview that the firearm found in the salon belonged to him. George said he needed the gun because people stole things from the salon.

         II. PROCEDURAL BACKGROUND

         A. Indictment and Trial

         In a superseding indictment, a federal grand jury charged George with: (1) conspiracy to possess with intent to distribute five kilograms or more of cocaine and a detectable amount of marijuana, in violation of 21 U.S.C. § 846 (Count 1); (2) possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2); (3) conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 3); (4) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 4); (5) possession of 15 or more unauthorized access devices, in violation of 18 U.S.C. §§ 1029(a)(3), 2 (Count 5); and (6) two counts of aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1), 2 (Counts 6 and 7).

         George proceeded to trial. After a four-day, trial, the jury found George guilty on Counts 1, 3, 4, 5, 6, and 7, and not guilty on Count 2.

         B. The PSR

         George's presentence report ("PSR") assigned him a base offense level of 30 and added, among others, the following increases: (1) a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(1) because George possessed "dangerous weapons (several firearms), " and (2) a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(12) because George "maintained several premises (apartments and a hair salon) for the purpose of manufacturing or distributing a controlled substance." With a total offense level of 36 and a criminal history category of III, George's advisory guidelines range was 235 to 293 months' imprisonment for Counts 1, 3, 4, and 5.[5]As to Counts 6 and 7 (the aggravated identity theft convictions), each count carried a consecutive term of two years' imprisonment, but it was within the district court's discretion to impose the terms for Counts 6 and 7 concurrently or consecutively to each other.

         George filed objections to the PSR, arguing that the increase under § 2D1.1(b)(1) for possessing a weapon was improper because the government had not proven any nexus between the firearm and the drug trafficking crimes, and because he had in fact been acquitted of possessing a firearm in furtherance of a drug-trafficking crime. George also objected to the increase under § 2D1.1(b)(12) for maintaining a drug premises because the PSR relied only on uncorroborated testimony on this point, and there was no other evidence that he maintained the salon or the apartment primarily for illicit activity. George also requested a downward variance.

         The government responded that: (1) there was ample evidence presented at trial to establish that George kept guns and drugs at his apartment and at the salon, and that acts in furtherance of drug crimes took place at both locations; (2) the back room of the salon was primarily used for illegal activity, including drug distribution; (3) George operated "trap houses" (houses used to store and sell drugs) based on Pinkow's testimony that he and George drove to various houses to pick up money; and (4) evidence that Banner purchased marijuana from George at George's apartment, and that firearms and drug equipment were present, strongly suggested that the apartment's primary or principle use was for drugs.

         C. The ...


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