from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:15-cr-20821-JEM-1
HULL, JORDAN, and GILMAN, [*] Circuit Judges.
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.
following facts were established at George's trial.
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"). George agreed to rent a Porsche Panamera
from Pinkow for $9, 000 per month.
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.
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.
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
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
also rented luxury cars to Vincent Banner, a "very
successful" drug dealer specializing in marijuana and
variations of marijuana. 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
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.
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
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.
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.
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.
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) 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.
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.
Indictment and Trial
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).
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.
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.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.
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.
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.