Sufficiency of the evidence; Possession of cocaine with intent to distribute; Knowingly using or carrying a firearm during & in relation to a drug trafficking crime; Whether defendant waived his sufficiency arguments by failing to renew his FedRCrimP 29 motion; Admission of jail calls; FRE 401; Sentencing; Substantive reasonableness

The court held (addressing an issue for the first time in a published case) that defendant-Curry “did not waive his sufficiency claims by failing to immediately renew his Rule 29 motion after declining to present any defense because” once the government rested, “the ‘close of all of the evidence’ necessarily occurred . . . . ” It also upheld the admission of jail calls and rejected his substantive reasonableness challenge to his sentence. Police found Curry unconscious behind the wheel of a parked vehicle, which contained firearms, a quantity of drugs, and drug paraphernalia. Police later recorded two telephone calls Curry made from his jail cell to the vehicle’s registered owner, in which he implicated himself. Excerpts were introduced at trial, over Curry’s objections. A jury convicted him of possession of cocaine with the intent to distribute (Count II); use or carrying of a firearm during and in relation to a drug trafficking crime (Count V); and FIP. Curry argued that there was insufficient evidence to convict him of Count II or Count V. On appeal, the court first considered whether Curry waived his sufficiency claims. Its “previous decisions send conflicting signals regarding a defendant’s obligation to renew a Rule 29 motion in such a scenario.” It noted that it has recognized the “‘traditional rule is that when the defendant moves for judgment of acquittal at the close of the government’s case-in-chief, and defense evidence is thereafter presented but the defendant fails to renew the motion at the close of all of the evidence, he waives objection to the denial of his earlier motion.’” And its sister circuits follow this same principle, holding that defendants do not have to renew their Rule 29 motions in order to preserve their challenges where they did not present evidence. Thus, the court held likewise here. It added that the government’s evidence was sufficient to support his convictions of Counts II and V no matter which standard it applied. As to his intent for Count II, the evidence that “approximately one ounce, or 28 grams, of cocaine was found along with Curry in the vehicle” was sufficient. Further, his “close proximity to the drugs and the loaded firearm, including the drum magazine for the firearm, lends sufficient evidence to support his conviction” of Count V. The court next found that the jail calls “were relevant to showing Curry’s control of the vehicle and were therefore admissible.” Lastly, it held that his sentence to 154 months and three years of supervised release was substantively reasonable, concluding that the district court adequately addressed Curry’s mental and physical health conditions. Affirmed.