                                                        [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                   FILED
                                                      U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                           No. 06-16682                   September 26, 2008
                     ________________________            THOMAS K. KAHN
                                                             CLERK
              D.C. Docket No. 06-00004-CR-FTM-99SPC

UNITED STATES OF AMERICA,


                                                          Plaintiff–Appellee,

                                 versus

JIMMY LOUISUIS,
a.k.a. J.C.,
ELEX PIERRE,
a.k.a. Showtime,
EXUIS LOUIS,
a.k.a. X-Man,
JOSEPH JOHNSON,
a.k.a. Trap,
etc.,


                                                     Defendants–Appellants.

                     ________________________

              Appeals from the United States District Court
                   for the Middle District of Florida
                    _________________________

                         (September 26, 2008)
Before ANDERSON, BARKETT and COX, Circuit Judges.

PER CURIAM:

       Jimmy Louisuis, Exuis Louis, Joseph Johnson, and Elex Pierre appeal from

their respective convictions and sentences for drug trafficking.1 The convictions

were based on surveillance and controlled purchases of crack cocaine on several

occasions involving the defendants at two different locations: an apartment on

Hemingway Circle and an apartment on Andrew Drive in Naples, Florida.

Pursuant to a search warrant, authorities first searched the Hemingway Circle

apartment and seized: cocaine, crack cocaine, plastic bags used to package

narcotics, measuring utensils commonly used to prepare crack cocaine, a safe

       1
          All of the defendants were convicted of conspiracy with intent to distribute fifty (50)
grams or more of a substance containing a detectable amount of cocaine base in violation of 21
U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A)(iii) (Count One); conspiracy to possess with
intent to distribute fifty (50) grams or more of a mixture or substance containing a detectable
amount of cocaine base in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(A)(iii) and
18 U.S.C. § 2 (Count Four); knowingly and intentionally using and maintaining a place at 5210
Hemingway Circle, Apartment 2304, Naples, Florida 34116, for the purpose of manufacturing
and distributing cocaine base in violation of 21 U.S.C. § 856(a)(1), 21 U.S.C. § 856(b), and 18
U.S.C. § 2 (Count Five); and, while aiding and abetting said co-defendants, knowingly
possessing firearms in furtherance of a drug trafficking crime, namely conspiracy to possess with
intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. §
924(c)(1)(A)(i) and 18 U.S.C. § 2 (Count Six). Louisuis and Pierre were also convicted of a
second charge of knowingly, willfully, and with intentionally possessing with intent to distribute
fifty (50) grams or more of a mixture or substance containing a detectable cocaine base in
violation of 21 U.S.C. § 841(b)(1)(A)(iii), and 18 U.S.C. § 2 (Count 8), and knowingly and
intentionally using and maintaining a place at 2615 Andrew Drive, Naples, Florida 34116, for
the purpose of distributing cocaine base in violation of 21 U.S.C. § 856(a)(1), 21 U.S.C. §
856(b), and 18 U.S.C. § 2 (Count 9). Additionally, Pierre was convicted of possessing cocaine
base with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c) (Counts Two
and Three), and Johnson was convicted of possessing a firearm after having been convicted of a
felony offense, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Seven).

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containing Louisuis’s driver’s license and Social Security card, a handgun holster,

a bulletproof vest bearing Pierre’s fingerprints, a loaded pistol inside a jacket on

the floor, an envelope bearing Louisuis’s fingerprints on it, a receipt bearing

Louis’s signature, a county jail property release form showing Pierre’s payment of

Johnson’s bond, marijuana packaged in plastic bags, a digital scale, two assault

rifles, three handguns, ammunition, magazines for a rifle and handgun, and

approximately $6,000. Pierre’s fingerprints were on a plastic bag and envelope.

Pierre’s and Louisuis’s fingerprints also were on another envelope. Authorities

also seized numerous cellular telephones from the apartment. Johnson and Louis

were arrested during the search. Authorities then obtained two warrants for

Pierre’s arrest.

       Approximately one month later, with an arrest warrant for Pierre, the police

entered the apartment on Andrew Drive to serve the arrest warrant on Pierre and

also arrested Louisuis who was in the apartment. While there, they observed drugs

on the floor of the bedroom in which they found Pierre and Louisuis. This formed

the basis for the subsequent search warrant obtained and served on the premises.

       Appellants raise several arguments on appeal, and we consider each in turn.

                                JIMMY LOUISUIS,

       Louisuis first argues that his conviction for knowingly and intentionally



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using and maintaining a place at 2615 Andrew Drive, Naples, Florida 34116, for

the purpose of distributing cocaine base in violation of 21 U.S.C. § 856(a)(1), 21

U.S.C. § 856(b), and 18 U.S.C. § 2 (Count 9), must be reversed because the district

court erred in denying his motion to suppress the evidence obtained from that

address. He argues that law enforcement officials did not have a search warrant

when they entered the Andrew Drive residence at the time of his arrest, and

therefore all of the evidence obtained from the residence should have been

suppressed. The district court denied the motion, finding that the entry was

permitted by exigent circumstances. We need not address whether exigent

circumstances existed here because the record reflects that the officers had a

warrant to arrest Pierre whom they reasonably believed to be living in the

residence and present at the residence at the time. See United States v. Bervaldi,

226 F.3d 1256, 1263 (11th Cir. 2000) (“‘[F]or law enforcement officials to enter a

residence to execute an arrest warrant for a resident of the premises, the facts and

circumstances within the knowledge of the law enforcement agents, when viewed

in the totality, must warrant a reasonable belief that the location to be searched is

the suspect’s dwelling, and that the suspect is within the residence at the time of

entry.’” (quoting United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995))).

Moreover, the law enforcement officials did not search the residence at the time of



                                           4
the entry. They observed drugs in plain view during the arrest and returned

thereafter with the requisite warrant to search the residence.

      Louisuis next argues that the evidence produced by the government was

insufficient to support his convictions because the government did not prove that

he knowingly entered into the drug conspiracy alleged in Count One of the

indictment but only showed that, at most, he associated with criminals.

Additionally, Louisuis argues that there was no proof of a nexus between his

constructive possession of the firearms and any drug trafficking offense. The

record supports the convictions because the on-going criminal

activities—including Louisuis’s sale of drugs—and Louisuis’s constructive control

over the illicit materials permit the inference that Louisuis was more than just an

innocent bystander. As to the firearm count, the recovery of the firearms in close

proximity to drugs show a nexus between the possession and the drug trafficking

offense.

      Next, Louisuis argues that the district court erroneously failed to dismiss a

juror for his inability to focus on the trial. The record indicates that the district

court dismissed the juror at Louisuis’s request and, therefore, there is no adverse

ruling for us to review.

      Louisuis also asserts that the cumulative effect of all of the errors alleged in



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his brief warrants reversal. Because the district did not err as to the issues raised

by Louisuis, he was not deprived of a fundamentally fair trial.

      Finally, Louisuis adopts his codefendants’ arguments, which challenge the

district court’s determination that it could not consider the crack-cocaine disparity.

This conflicts with the intervening Supreme Court decision in Kimbrough v.

United States, __ U.S. __, __, 128 S. Ct. 558, 575, 169 L. Ed. 481 (2007). Thus,

we reverse Louisuis’s sentence and remand for resentencing.

                                   EXUIS LOUIS,

      Louis first argues that the district court erred by denying his motion to sever

his trial from that of his codefendants. We find nothing in the record that

demonstrates that trying him jointly with his codefendants would result in any

specific prejudice to him. Second, Louis argues that government witness Ivane

Camille’s testimony was incredible as a matter of law. Camille asserted that her

testimony against Louis was not coerced, and she offered plausible explanations

for minor inconsistencies between her trial testimony and past statements. Her

testimony cannot be deemed incredible as a matter of law, and the district court did

not err by allowing the jury to consider her testimony. Third, because Louis has

not demonstrated that the evidentiary rulings which he claims were erroneous

prejudiced him in any way, those rulings did not deprive him of a fair trial.



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      As to his sentence. Louis argues that the district court’s determination that it

could not consider the crack-cocaine disparity violates Kimbrough, 128 S. Ct. at

575. We agree. As the government now acknowledges, the Supreme Court made

clear in Kimbrough that a district court could consider the crack-cocaine disparity

in fashioning a reasonable sentence. Id. Accordingly, we reverse Louis’s sentence

and remand for resentencing.

                               JOSEPH JOHNSON,

      Johnson argues that the government presented insufficient evidence to

support his convictions because they did not demonstrate that the firearms were

connected with interstate commerce or the drug trafficking offense. Johnson also

argues that the evidence was insufficient to support the drug and conspiracy

convictions because it did not show that he was part of the trafficking. Testimony

from a law enforcement official established the nexus between the firearms and

interstate commerce. The discovery of the firearms in close proximity to drugs and

Johnson’s movement towards one of them during the arrest link the firearms to the

drug trafficking offenses. As to the drug and conspiracy convictions, testimony

established that Johnson lived in a residence from which he and his codefendants

manufactured and sold crack cocaine. In addition to testimony pertaining to

specific sales, evidence found in the residence included drugs and paraphernalia



                                          7
associated with drug distribution. The evidence is sufficient to support Johnson’s

convictions on the drug and conspiracy charges.

      As to his sentence, Johnson argues that the district court erred by sentencing

Johnson to life imprisonment based on the enhanced penalty provision for

recidivists in 21 U.S.C. § 841(b)(1)(B). Johnson had previously pled guilty to

state felony drug charges. The state court withheld adjudication. Johnson argues

that the case should not count as a qualifying offense for the enhancement

provision in § 841(b)(1)(A) because the state court withheld adjudication.

However, this court’s precedent establishes that a state plea of nolo contendre to a

felony offense, followed by a withholding of adjudication, constitutes a prior

conviction for purposes of the enhanced penalties for recidivists in § 841(b). See

United States v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995). Thus, the district court

did not err in sentencing Johnson.

                                  ELEX PIERRE,

      Elex Pierre only appeals his 211-month sentence for crack and firearms

offenses. Because the district court’s finding that it could not consider the

crack-cocaine disparity conflicts with the intervening Supreme Court decision in

Kimbrough, 128 S. Ct. at 575, we reverse Pierre’s sentence and remand for

resentencing.



                                           8
                                CONCLUSION

      For the foregoing reasons, the convictions of Louisuis, Louis, Johnson and

Pierre, as well as the sentence of Johnson, are AFFIRMED. The sentences of

Louisuis, Louis, and Pierre are REVERSED and REMANDED for resentencing.




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