Rule 29 Sufficiency Preservation When Defendant Rests Without Evidence: Government’s Rest Marks the “Close of All the Evidence”

I. Introduction

United States v. Paul Curry (Sixth Circuit, Mar. 23, 2026) arises from a welfare-check encounter in Cleveland that led officers to find Paul Curry unconscious behind the wheel of a running Dodge Durango. In the center console, police discovered a loaded Glock handgun with a drum magazine and, beneath it and elsewhere in the vehicle, multiple controlled substances, packaging materials, and a scale. Curry was federally indicted for multiple drug-trafficking offenses, a firearm offense under 18 U.S.C. § 924(c), and felon-in-possession under 18 U.S.C. § 922(g)(1).

At trial, the government introduced excerpts of Curry’s jail calls to a number registered to the Durango’s titled owner (Francine Gill), in which Curry referred to money on Cash App cards and to “the car,” including statements suggesting he had paid toward its purchase and wanted it retrieved. The jury convicted Curry of (1) possession of cocaine with intent to distribute (Count II), (2) using or carrying a firearm during and in relation to a drug-trafficking crime (Count V), and (3) felon in possession (Count VI), while acquitting him of other drug-intent counts tied to other substances.

On appeal, Curry challenged (i) the sufficiency of the evidence for Counts II and V, (ii) the admission of the jail-call excerpts, and (iii) the substantive reasonableness of his within-Guidelines sentence. The Sixth Circuit affirmed in full—and, importantly, resolved a preservation question about Rule 29 renewal when a defendant presents no evidence.

II. Summary of the Opinion

  • Rule 29 preservation holding: Curry did not waive his sufficiency challenge by failing to “renew” his Rule 29 motion after the government rested where he presented no defense evidence; in that posture, the government’s rest “necessarily” constituted the “close of all of the evidence.”
  • Sufficiency—Count II (intent to distribute cocaine): The evidence supported an inference of intent to distribute based on quantity (about one ounce of cocaine), plus indicia of trafficking (scale, baggies, firearm), testimony about drug-dealing practices, and the Cash App-related evidence.
  • Sufficiency—Count V (§ 924(c) “carry” during and in relation): A loaded firearm in the console within reach of Curry, intermingled with drug-trafficking indicia, supported that Curry “carried” the firearm “during and in relation to” drug trafficking.
  • Evidentiary ruling: Jail-call excerpts were relevant under Rule 401 to show Curry’s control of the vehicle (and thus link him to the gun and drugs) and were not unfairly prejudicial under Rule 403.
  • Sentencing: The within-Guidelines 154-month sentence was substantively reasonable; the district court considered Curry’s health and mental conditions but permissibly weighed other § 3553(a) factors more heavily. The denial of a downward departure was unreviewable absent a mistaken belief about authority.

III. Analysis

A. Precedents Cited

1. Standards of review and sufficiency framework

  • United States v. Driver and United States v. Burris: cited for the general rule that sufficiency challenges are reviewed de novo. This framed the court’s ability to evaluate the record independently.
  • United States v. Jackson (quoting Jackson v. Virginia): supplied the canonical “any rational trier of fact” standard. The panel used it as the “more exacting” benchmark for preserved sufficiency claims.
  • United States v. Washington: reinforced that circumstantial evidence alone can sustain a conviction—critical here because intent to distribute and the § 924(c) “relation” element were proved largely through circumstantial indicia (quantity, tools, proximity, and context).
  • United States v. Taylor and United States v. Cecil: emphasized deference to the verdict through the “substantial and competent evidence” lens and the requirement to draw reasonable inferences in the government’s favor.

2. Rule 29 waiver/preservation doctrine—and the opinion’s key clarification

  • United States v. Damra, United States v. Williams, and United States v. Kuehne: set out the typical “traditional rule” that a defendant must renew a Rule 29 motion at the close of all evidence when the defense presents evidence after the government rests, or risk waiver and the more limited “manifest miscarriage of justice” review.
  • United States v. Carnes and United States v. Mack: defined the “manifest miscarriage of justice” standard (reversal only when the record is “devoid” of evidence of guilt).
  • United States v. Love: an unpublished decision sending a “conflicting signal” by deeming waiver where the defendant did not renew even though the defense did not present evidence. The panel acknowledged this tension rather than relying on it.
  • United States v. Sherman: the pivotal Sixth Circuit anchor. The panel relied on Sherman’s articulation of the “traditional rule” and, reading it carefully, emphasized that renewal is tied to situations where “defense evidence is thereafter presented.”
  • Sister-circuit reinforcement: United States v. Carpenter (7th Cir.), United States v. Daniels (5th Cir.), and United States v. Wilson (D.C. Cir.) were used to show a broader consensus: when the defendant presents no evidence, the government’s rest functions as the practical “close of evidence,” and a Rule 29 motion at that point preserves sufficiency.
  • United States v. Kennedy: supported the panel’s methodological choice to analyze sufficiency under both the preserved standard and the “manifest miscarriage of justice” fallback—underscoring that the result would be the same either way.

3. Intent to distribute (Count II) – inferential proof and trafficking indicia

  • United States v. Ham: supplied the proposition that intent to distribute can be inferred from possession of a “large quantity” of drugs. This allowed the panel to treat quantity as independently powerful proof.
  • United States v. Haywood: offered a concrete comparator (18 grams of crack cocaine) to validate that roughly one ounce (28 grams) of cocaine supports an intent-to-distribute inference.
  • United States v. Coffee: reinforced the multi-factor approach—quantity plus packaging, weapons, and scale—mirroring the facts found in the Durango.
  • United States v. Wilson: recognized the trafficking-firearms connection, supporting the inference that the firearm and drugs together suggest distribution rather than mere use.
  • United States v. Collier and United States v. Peters: recognized that large sums of cash found with drugs further support intent to distribute. The panel treated the Cash App references as functionally similar to “cash” evidence in modern form.
  • United States v. Brown (2000 WL 1290368): supported reliance on officer/investigator testimony about practices consistent with dealing (scale, packaging, user-vs-dealer behavioral differences).

4. § 924(c) “carry” and “during and in relation to” (Count V)

  • United States v. Combs (quoting Muscarello v. United States): provided the governing definition of “carry” under § 924(c), including conveying a firearm in a vehicle. This directly fit the console-located firearm.
  • United States v. Fast: supported that a firearm in a vehicle console constitutes “carry,” and also supported the “during and in relation to” element where a loaded firearm is within reach and associated with narcotics.
  • United States v. Walls and United States v. Warwick: set the “during and in relation to” requirement: the firearm must facilitate or have the potential to facilitate the trafficking offense, and its presence must be more than coincidence.
  • United States v. Brown (915 F.2d 219): framed the totality-of-circumstances inquiry and the idea that availability for use during or immediately after a drug transaction can satisfy § 924(c).
  • United States v. Blankenship and Hereford v. United States: reinforced that transporting drugs in a vehicle containing a loaded firearm available for use supports the “relation” element.
  • United States v. Cherry and Nichols v. United States: supplied additional authority that proximity to drugs, firearm, and ammunition can constitute sufficient circumstantial evidence of the “during and in relation to” nexus.

5. Admission of jail calls – Rules 401 and 403

  • Morales v. Am. Honda Motor Co. and United States v. Newsom: anchored abuse-of-discretion review and relevance analysis under Rule 401.
  • United States v. Sadler and United States v. Gibbs: articulated what constitutes an abuse of discretion (wrong standard, misapplication, clearly erroneous facts, or clear error of judgment).
  • Cummins v. BIC USA, Inc. and Tompkin v. Philip Morris USA, Inc.: emphasized the deference afforded to trial courts in admissibility and balancing decisions, limiting appellate intervention absent more than harmless error.
  • United States v. Ford: reiterated the Rule 403 framework and the “substantially outweighed” threshold.

6. Sentencing reasonableness, departures, and variances

  • United States v. Ruiz: supported abuse-of-discretion review of sentencing reasonableness.
  • United States v. Tristan-Madrigal, United States v. Rayyan, and United States v. Haile: provided the conceptual framing of substantive reasonableness (length “greater than necessary,” and improper weighting of § 3553(a) factors).
  • United States v. Vonner: established that a defendant need not object to the “reasonableness” of the sentence length at the hearing to preserve a substantive reasonableness claim.
  • United States v. Hawkins: supported the notion that sentencing can be driven by a few dominant factors; also was invoked to reject review of a downward-departure denial where the record shows the court understood its authority.
  • United States v. Lapsins: supplied the rebuttable presumption of substantive reasonableness for within-Guidelines sentences.
  • United States v. Matthews and United States v. Madden: reiterated the Sixth Circuit rule that denial of a downward departure is generally unreviewable absent an incorrect belief about authority.

B. Legal Reasoning

1. The opinion’s central procedural rule: Rule 29 renewal is unnecessary when no defense evidence is presented

The panel confronted an often-practical but doctrinally important question: if a defendant moves for acquittal under Rule 29 at the close of the government’s case, then immediately rests without presenting evidence, must the defendant “renew” the motion to avoid waiver of sufficiency claims?

Acknowledging “conflicting signals” (including United States v. Love), the court adopted what it described as the “traditional rule” as articulated in United States v. Sherman: renewal is required when defense evidence follows. Where the defense offers no evidence, the government’s rest is, “as a practical matter,” the close of evidence. On that logic, the court held that Curry preserved his sufficiency challenges without renewal because “the ‘close of all of the evidence’ necessarily occurred once the government rested.”

Notably, the court explicitly limited the holding to the scenario before it (“without addressing how preservation rules might apply in distinct factual contexts”), indicating a targeted clarification rather than a comprehensive overhaul of Rule 29 preservation doctrine.

2. Sufficiency on Count II: intent to distribute inferred from quantity plus trafficking indicia

The panel narrowed the dispute to one element: intent to distribute. Relying on United States v. Ham, it held that quantity alone can support an inference of distribution intent. The presence of approximately one ounce of cocaine was compared to the amount found sufficient in United States v. Haywood.

The court then reinforced that inference with corroborating circumstantial evidence: the scale, sandwich baggies, and firearm found in the vehicle; investigator testimony distinguishing user behavior from dealer behavior; and evidence about Cash App use in drug dealing paired with Curry’s jail-call statements about large amounts of money on Cash App cards located “in the car.” The jail calls simultaneously served a linkage function (control of vehicle) and a trafficking-indicia function (unexplained wealth in proximity to drugs/tools).

3. Sufficiency on Count V: “carry” in a vehicle and the “during and in relation to” nexus

The court accepted the government’s trial theory as “carry,” not “use,” and applied the vehicle-based definition from United States v. Combs and Muscarello v. United States. A loaded firearm in the center console next to Curry was enough to establish “carry.”

For “during and in relation to,” the panel applied the facilitation-or-potential-to-facilitate test from United States v. Walls and rejected coincidence under United States v. Warwick. The close proximity of a loaded firearm (with a drum magazine) to drug evidence (including a scale) supported that the firearm was available to protect drugs, proceeds, or the trafficking process—satisfying the totality-of-circumstances approach reflected in United States v. Brown (915 F.2d 219) and related Sixth Circuit decisions.

4. Admission of jail calls: relevance to vehicle control and Rule 403 balancing

The panel endorsed the district court’s determination that Curry’s control of the Durango was “of consequence” because it linked him to the firearm and drugs. Under Rule 401, the calls tended to make it more probable that Curry controlled the vehicle despite registration in Gill’s name (e.g., references to paying for “the car,” money “in the car,” and instructing Gill to retrieve “the car,” all in calls placed to Gill’s number).

On Rule 403, the court rejected Curry’s claim that the evidence improperly suggested uncharged “greater illegal activity.” In the panel’s view, the government used the calls consistently with the stated permissible purposes: control/linkage and circumstantial support for intent to distribute (in line with cases recognizing the probative role of money evidence when found with drugs).

5. Sentencing: within-Guidelines reasonableness; departures unreviewable absent legal mistake

The court treated Curry’s challenge as a classic substantive reasonableness claim: the sentence was allegedly too long given health and intellectual limitations. The panel emphasized that the district court reviewed the PSR and sentencing memorandum, heard argument, and explicitly grounded the sentence in § 3553(a), focusing on punishment, deterrence, protection of the public, and rehabilitation. Under United States v. Lapsins, the mid-range within-Guidelines sentence carried a presumption of reasonableness that Curry did not rebut.

The opinion also drew a clear doctrinal line between variances and departures: the variance denial was reviewed and upheld; the departure denial was deemed unreviewable under United States v. Matthews and United States v. Madden because nothing suggested the district court misunderstood its authority.

C. Impact

  • Clarified Rule 29 preservation in a recurring trial posture: The opinion’s most “precedent-like” contribution is its express holding that when the defense presents no evidence, a Rule 29 motion at the close of the government’s case preserves sufficiency challenges without a redundant renewal. This reduces the risk that a purely formal omission triggers waiver and the harsh “manifest miscarriage of justice” standard.
  • Practical guidance for trial lawyers and district judges: Defense counsel can rely on preservation in the no-defense-evidence posture, while still renewing as a best practice when any defense proof is introduced. District judges can also more confidently frame Rule 29 timing in jury trials where the defense rests immediately.
  • Continued acceptance of modern “wealth” evidence via payment apps: Without announcing a new rule on “unexplained wealth,” the opinion underscores that Cash App-related statements may play the same inferential role as “cash” evidence when tied to vehicle control and trafficking indicia—particularly when combined with drug quantity and tools.
  • § 924(c) reinforcement through proximity and accessibility: The decision further solidifies that console proximity of a loaded firearm to drugs and trafficking paraphernalia can satisfy both “carry” and “during and in relation to,” encouraging litigants to focus on accessibility, load status, and spatial relationship to drug evidence.

IV. Complex Concepts Simplified

  • Rule 29 motion (judgment of acquittal): A request for the judge to take the case away from the jury because the evidence is legally insufficient. Timing matters: the motion is commonly made after the government rests and (if the defense presents evidence) renewed after all evidence is in.
  • “Waiver” vs. preserved sufficiency review: If a sufficiency issue is waived, appellate review becomes extremely limited (“manifest miscarriage of justice”), meaning reversal usually happens only if there is essentially no evidence of guilt. Preserved claims receive the more searching “rational juror” review.
  • Intent to distribute: Rarely proven by direct admission; juries may infer it from drug quantity and “tools of the trade” (scales, packaging, large sums of money, weapons).
  • 18 U.S.C. § 924(c) “carry” and “during and in relation to”: “Carry” includes transporting a gun in a vehicle. “During and in relation to” requires a connection: the gun must facilitate or have the potential to facilitate the drug crime, not just be present by coincidence.
  • Rule 401 vs. Rule 403: Rule 401 asks whether evidence makes a consequential fact more or less probable. Rule 403 allows exclusion if the danger of unfair prejudice substantially outweighs probative value—an intentionally high bar that gives trial judges significant discretion.
  • Departure vs. variance at sentencing: A “departure” is a Guidelines-authorized adjustment; appellate review of a denial is generally barred unless the judge thought he lacked authority. A “variance” is a discretionary sentence outside the Guidelines based on § 3553(a) and is reviewable for reasonableness.

V. Conclusion

United States v. Paul Curry affirms drug-trafficking and § 924(c) convictions based on classic circumstantial indicia—quantity, tools, money evidence, and firearm proximity—and upholds a within-Guidelines sentence against a health-based substantive reasonableness challenge. Its most significant doctrinal contribution is procedural: when a defendant rests without presenting evidence, a Rule 29 motion at the close of the government’s case preserves sufficiency claims because the government’s rest marks the “close of all the evidence.” That clarification harmonizes Sixth Circuit practice with the “traditional rule” and with sister-circuit authority, reducing needless waiver disputes while keeping intact the renewal requirement when the defense actually introduces evidence.