United States v. Vergil Vladimir George
2017 U.S. App. LEXIS 19580
| 11th Cir. | 2017Background
- Vergil George was convicted by a jury of drug conspiracy, Hobbs Act conspiracy, being a felon in possession, possession of unauthorized access devices, and two counts of aggravated identity theft; acquitted on a § 924(c) count charging possession of a firearm in furtherance of a drug-trafficking crime.
- Evidence at trial and the salon/apartment search showed packaging equipment, scales, heat sealers, marijuana, cocaine residue, numerous credit cards/gift cards, skimmers, computers, and firearms; George admitted post-arrest that the salon firearm was his.
- The PSR applied two two-level enhancements under U.S.S.G. § 2D1.1: (b)(1) for possession of a dangerous weapon and (b)(12) for maintaining premises for drug distribution; total offense level 36, criminal-history III, guideline range 235–293 months.
- George objected that the firearm enhancement lacked a nexus to the drug offenses (and conflicted with his § 924(c) acquittal) and that the premises enhancement relied on uncorroborated testimony; he also sought a downward variance.
- The district court applied both enhancements, sentenced George to 259 months (including consecutive 24 months for the identity‑theft counts), and failed to personally address George for allocution before pronouncing sentence.
- The Eleventh Circuit affirmed the guideline enhancements (firearm and premises) under clear‑error review but vacated and remanded for resentencing because the court plainly erred by not affording allocution prior to imposing sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of § 2D1.1(b)(1) firearm enhancement | Government: gun was present at salon used as site of drug activity; presence shows connection by preponderance | George: no proven nexus; acquitted of § 924(c); witnesses not credible | Enhancement proper — government met preponderance standard; district court did not clearly err |
| Applicability of § 2D1.1(b)(12) premises enhancement | Government: salon (and alternatively apartment) was primarily used for drug distribution based on equipment, drugs, customers, and control | George: evidence was uncorroborated and drug use was incidental; apartment primarily residence | Enhancement proper — totality of circumstances supported finding that salon (and/or apartment) had drug distribution as a primary use |
| Effect of acquittal on sentencing enhancements | N/A | George: acquittal on firearm-in‑furtherance charge should preclude sentence enhancement based on same facts | Rejected — sentencing burden (preponderance) is lower than trial burden (beyond reasonable doubt); acquittal does not bar enhancement |
| Denial of allocution under Fed. R. Crim. P. 32 | Government: post‑sentence opportunity to speak occurred; no prejudice shown | George: court did not personally invite allocution before sentencing; that violates Rule 32 and may be prejudicial | Reversed on allocution error — court plainly erred by not addressing defendant personally before sentence; presumption of prejudice applies and remand for resentencing required |
Key Cases Cited
- 463 F.3d 1218 (11th Cir.) (preponderance standard and nexus requirement for § 2D1.1(b)(1) firearm enhancement)
- 713 F.3d 82 (11th Cir.) (discussion of firearm presence and potential use in drug offenses cited for context)
- 46 F.3d 62 (11th Cir.) (upholding firearm enhancement where gun was in same room with drug‑trade items)
- 857 F.3d 1115 (11th Cir.) (holding that failure to afford allocution generally warrants presumption of prejudice and remand even when sentenced at low end of advisory range)
- 303 F.3d 1249 (11th Cir.) (explaining the right of allocution under Rule 32 and its importance in sentencing)