Submitted: Sept. 27, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
William J. Raymond, Asst. Fed. Public Defender, Kansas City, MO, argued (Raymond C. Conrad, Jr., Fed. Public Defender, on the brief), for appellant.
Damon E. Goodrich, Forest City, AK, pro se.
Paul S. Becker, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
Before WOLLMAN, SMITH, and KELLY, Circuit Judges.
A jury convicted Damon Goodrich on all counts of a three-count indictment for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (" Count 1" ); possession with intent to distribute less than fifty kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) (" Count 2" ); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (" Count 3" ). The district court  sentenced Goodrich to 33 months' imprisonment on Counts 1 and 2, and 90 months, to run consecutive to Counts 1 and 2, on Count 3. Goodrich seeks reversal of the guilty verdict or, in the alternative, remand for resentencing. First, he alleges that the evidence presented against him was the fruit of two unlawful searches of his home. Second, he claims that the evidence presented was insufficient to support a conviction. Third, he contends that the district court's sentence, particularly its upward variance on Count 3, was substantively unreasonable. For the reasons stated below, we affirm.
On the evening of May 21, 2009, three Kansas City, Missouri police officers responded to a report of a break-in at a house that Goodrich rented. When they arrived, a witness told police he heard a gunshot. The officers could see people moving inside the house. One intruder
left the house and ran toward a nearby wooded area. While fleeing, this suspect dropped a bag of marijuana and two handguns and was eventually arrested. Police arrested a second intruder attempting to exit the house through a window.
Goodrich arrived at the house shortly after the police. Advised of a gunshot, the officers organized a protective sweep of the house for additional intruders or possible victims. They asked Goodrich to open the front door. He initially refused, but he relented after officers informed him that if he did not unlock the door, they would force their way in. Once inside, officers conducted a 20 to 25 minutes, room-by-room sweep of the house. They looked under beds and blankets, in closets, and anywhere they believed suspects could be hiding or victims might be found. During the search, they observed a firearm on a bed and an open diaper box containing individually wrapped baggies of marijuana in a bedroom.
After the search, Police Detective Darryl Ward arrived on the scene. Based on the responding officer's report, Ward determined that a second search was needed. Ward sought Goodrich's consent but he initially denied living at the house. After a search through the police database matched Goodrich to the address, and police found utility bills in the mailbox in his name, Goodrich admitted to living in the house.
Detective Ward gave Goodrich a consent-to-search form, which advised Goodrich of his right to refuse and the potential use of any evidence found during the search. An officer read the form aloud to Goodrich, who also read it himself and admitted that he understood it. When Goodrich asked what would happen if he did not consent to the search, Detective Ward stated officers would obtain a search warrant. Mr. Goodrich signed the form.
In the second search, police found a loaded pistol and $1,000 in cash in one bedroom. They recovered $13,000 in cash and several clear plastic bags containing a " green, leafy substance" in the next bedroom. They discovered another loaded pistol and several scales in the kitchen. Finally, a search of the living room revealed $10,000 in cash in a briefcase, an industrial size roll of shrink wrap, a box of ammunition matching the caliber of one of the pistols, and a ballistic vest.
Police tested several bags of the leafy substance; tests revealed that the bags contained approximately 5760 grams of marijuana. Police developed a partial genetic profile from the gun. The profile matched Goodrich, though officers did ...