United States v. Lorenzo D. Hood, 685 F. App'x 705

Background

From May–Oct 2013, Fort Myers PD conducted surveillance and controlled buys at 6226 Demery (confidential informants Nixon and Herman); recordings and footage showed regular drug transactions involving defendants and others. 6226 Demery yielded drugs, scales, cash, and surveillance equipment on search.
On Sept 9 and Oct 24, 2013 police searched 6226 Demery; on Oct 29, 2013 officers arrested Lorenzo Hood at 1606 Hibiscus and conducted a brief protective sweep that revealed firearms, ammunition, cocaine, and paraphernalia; Hood stipulated he was a felon.
Defendants Bobby Lesane Jr., Maury Carson Morris, and Lorenzo D. Hood were charged in a superseding indictment with a drug conspiracy (Count 1) and various substantive drug counts; Hood also faced a § 922(g) firearms charge. Co-defendants James Hood and Walter Campbell pled guilty pretrial.
At trial the government presented controlled buys, jailhouse statements, surveillance footage, and recovered evidence; all three defendants were convicted (Lesane: Counts 1 & 4; Morris: Counts 1 & 7; Hood: Counts 1, 5, 6, 8, 9).
Sentencing: Lesane was treated as a career offender based on two prior felonies (including a 2014 burglary conviction entered after the 2013 drug conduct) and received 210 months; Morris and Hood received concurrent lengthy terms. Appeals followed; this Court consolidated the appeals.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for Lesane's heroin-conspiracy liability	Gov: Lesane’s frequent participation at 6226 Demery, recorded sales, and association with co-conspirators supports inference he joined conspiracy that included heroin	Lesane: No direct evidence he sold heroin; transactions prove cocaine involvement only	Affirmed — circumstantial evidence of joint participation and presence at locations where heroin was distributed sufficed to support heroin-related conspiracy liability
Career-offender classification for Lesane	Gov: Lesane had two qualifying prior felony convictions (including 2014 burglary) so §4B1.1 applies	Lesane: 2014 burglary conviction occurred after the instant 2013 offense conduct and therefore cannot serve as a "prior" conviction under §4B1.2(c)	Vacated — Court found plain error: the 2014 conviction cannot be a prior predicate; remanded for resentencing
Prosecutorial misconduct (Morris)	Morris: Prosecutor improperly tied firearms evidence and early trial gun-focused proof to Morris, and suggested he carried a gun on video, prejudicing jury	Gov: Evidence and jury instructions made clear Morris was charged only with drugs; co-conspirator evidence and trial order were proper; remarks not prejudicial	Affirmed — plain-error review failed; remarks were isolated, not so pervasive to affect outcome given strong evidence of Morris’s drug involvement
Suppression challenge (Hood) — protective sweep at 1606 Hibiscus	Hood: Sweep exceeded Buie scope; officers lacked articulable facts to suspect another person posed danger after Hood was seized	Gov: Officers observed movement at a different part of house (blinds), saw object poking through blinds, Hood exited from a different area, and observed evasive behavior — reasonable basis for sweep	Affirmed — protective sweep was justified and cursory; evidence in plain view properly used to obtain warrant

Key Cases Cited

United States v. Isnadin, 742 F.3d 1278 (11th Cir. 2014) (standard for reviewing sufficiency of evidence)
United States v. McDowell, 250 F.3d 1354 (11th Cir. 2001) (elements of conspiracy and inferential proof)
Maryland v. Buie, 494 U.S. 325 (1990) (protective-sweep doctrine and its scope)
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (prejudice from incorrect Guidelines range can satisfy substantial-rights prong)
Gall v. United States, 552 U.S. 38 (2007) (procedural and substantive reasonableness review of sentences)
United States v. Tobin, 923 F.2d 1506 (11th Cir. 1991) (seizure of evidence in plain view during lawful protective sweep)