U.S. v. Williams

• Decision Date: 27 January 1999
• Docket Number: 96-3998 and 96-4021,96-3928,96-3558,96-3704,Nos. 96-3546,s. 96-3546
• Citation: 176 F.3d 301
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maurice WILLIAMS (96-3546), Marshon Mays (96-3558), Reginald Crenshaw (96-3704), Sherman Giles (96-3928), Paul Crump (96-3998), and Wesley Moore (96-4021), Defendants-Appellants. . Argued (96-3546/96-3704/96-3928/96-3998) and Submitted (96-3558/96-4021)
• Court: U.S. Court of Appeals — Sixth Circuit

Page 301

176 F.3d 301

UNITED STATES of America, Plaintiff-Appellee, v. Maurice WILLIAMS (96-3546), Marshon Mays (96-3558), Reginald Crenshaw (96-3704), Sherman Giles (96-3928), Paul Crump (96-3998), and Wesley Moore (96-4021), Defendants-Appellants.

Nos. 96-3546, 96-3558, 96-3704, 96-3928, 96-3998 and 96-4021.

United States Court of Appeals Sixth Circuit.

Argued (96-3546/96-3704/96-3928/96-3998) and Submitted

(96-3558/96-4021) Jan. 27, 1999.

Decided Feb. 23, 1999. ^*

Ordered Published March 24, 1999.

Terry Lehmann (argued and briefed), Office of the U.S. Attorney, Cincinnati, Ohio, for Plaintiff-Appellee.

Michael T. Gunner (argued and briefed), Gunner & Banchefsky, Hilliard, Ohio, for Maurice Williams.

William J. Rapp (briefed), Cincinnati, Ohio, for Marshon Mays.

Lawrence J. Greger (argued and briefed), Dayton, Ohio, for Reginald Crenshaw.

Thomas G. Eagle (argued and briefed), Thomas G. Eagle Company L.P.A., Franklin, Ohio, for Sherman Giles.

Robert F. Barnes, Jr. (argued and briefed), Cincinnati, Ohio, for Paul Crump.

Ronald E. Schwartz (briefed), Cincinnati, Ohio, for Wesley Moore.

Before: MERRITT and MOORE, Circuit Judges; DUGGAN, ^** District Judge.

OPINION

MOORE, Circuit Judge.

On March 23, 1995, a federal grand jury in Columbus, Ohio, returned a 185-count indictment against forty-one defendants. The six defendants-appellants named here all pleaded guilty to Count One of the indictment--conspiracy "to possess with the intent to distribute and to distribute cocaine and more than five grams of cocaine base, commonly referred to as crack"--and several of the defendants pleaded guilty to at least one additional count, detailed below. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Each defendant makes several claims of error regarding his plea and/or his sentencing. For the following reasons, however, we AFFIRM the district court.

I

The government alleges that the conspiracy began in 1989, when defendant Mays and other residents of the "Short North" area of Columbus, Ohio, began selling crack cocaine. Following a shooting of one of the group, Mays decided the original group needed to organize for its own protection, and dubbed the new group the "Short North Posse." By 1993, local police had begun to investigate the group and undercover detectives had started to make buys of crack cocaine in the Short North area. There are instances of purchases from some of the defendants to this case in April, May, June, July, and September 1993. There were two more undercover buys in April 1994.

By May 1994, federal agents became involved in the investigation. The federal agents posed as West Side dealers and allegedly made purchases from the defendants named above in May, July, September, October, and November 1994. Two search warrants were executed in 1994, one in April and one in November, but neither deterred continued drug sales. Another undercover agent made a purchase from Giles on March 8, 1995. Two weeks later a majority of the group was indicted.

The federal grand jury sitting in Columbus, Ohio, returned a 185-count indictment against forty-one defendants on March 23, 1995, the lynchpin of the indictment being a conspiracy to possess with the intent to distribute cocaine base and the distribution of cocaine base. Each of these six defendants was charged with Count One, the conspiracy count, and at least three other counts. Each defendant herein entered a plea of guilty on various dates in 1995 in the weeks leading up to the trial for the remaining defendants: Reginald Crenshaw on August 23 to the conspiracy count; Paul Crump on September 11 to the conspiracy count and two counts of money laundering; Marshon Mays on September 15 to the conspiracy count and distribution of crack; Maurice Williams on September 17 to the conspiracy count and one count of use of a firearm during a drug trafficking crime; Wesley Moore on September 26 to the conspiracy count and one count of use of a firearm during a drug trafficking crime; and Sherman Giles on September 26 to the conspiracy count and one count of use of a firearm during a drug trafficking crime.

The trial of eight alleged co-conspirators began on September 27, 1995, and lasted several weeks. In 1996, each of the defendants named here was sentenced: Maurice Williams on April 29 to 121 months on the conspiracy count (by this time the firearm count had been dropped pursuant to the Supreme Court decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)); Marshon Mays on April 30 to 109 months on the conspiracy count and distribution of crack; Reginald Crenshaw on June 13 to 130 months on the conspiracy count; Sherman Giles on August 22 to 300 months on the conspiracy count (the Bailey count was dropped); Paul Crump on August 29 to 156 months on the conspiracy count and two counts of money laundering; and Wesley Moore on September 3 to 186 months on the conspiracy count (the Bailey count was dropped). Each defendant filed a timely notice of appeal.

II

Each defendant makes two or three arguments about his individual plea agreement and/or sentence. We will address each defendant's arguments in turn.

A

Defendant Maurice Williams first argues that the two-level enhancement under the guidelines for possession of a firearm pursuant to U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 2D1.1(b)(1) (1995) was erroneous, based substantially on the fact that his 18 U.S.C. § 924(c) gun count was dismissed in the wake of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). A district court's finding that the defendant possessed the firearm during the drug crime is a factual finding subject to review for clear error. United States v. Elder, 90 F.3d 1110, 1133 (6th Cir.1996), cert. denied, 519 U.S. 1131, 117 S.Ct. 993, 136 L.Ed.2d 873 (1997).

Bailey clarified the term "use" in 18 U.S.C. § 924(c)(1) in the phrase "uses or carries." The guideline enhancement, however, specifically refers only to "possession" (construed as actual or constructive possession). This court has held that acquittal under 18 U.S.C. § 924(c)(1) "does not necessarily preclude a sentencing enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)" not only because of the different terminology but also in part because the burden of proof at sentencing is preponderance of the evidence and not beyond a reasonable doubt, as at trial. United States v. McCall, 85 F.3d 1193, 1198 (6th Cir.1996); see also Elder, 90 F.3d at 1133; United States v. Duncan, 918 F.2d 647, 652 (6th Cir.1990), cert. denied, 500 U.S. 933, 111 S.Ct. 2055, 114 L.Ed.2d 461 (1991). In other words, Bailey has little to say about the appropriateness of a guidelines enhancement for possession.

Application Note 3 to U.S.S.G. § 2D1.1 states in part:

The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.

U.S.S.G. § 2D1.1 commentary, applic. note 3; see also United States v. Moreno, 899 F.2d 465, 470 (6th Cir.1990), cert. denied, 503 U.S. 948, 112 S.Ct. 1504, 117 L.Ed.2d 643 (1992); United States v. Cochran, 14 F.3d 1128, 1132 (6th Cir.1994). In order for the enhancement to apply, the government must establish that (1) the defendant actually or constructively possessed the weapon, and (2) such possession was during the commission of the offense. United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.), cert. denied, 519 U.S. 858, 117 S.Ct. 158, 136 L.Ed.2d 102 (1996). "Constructive possession of an item is the ownership, or dominion or control over the item itself, or dominion over the premises where the item is located." Id. (internal quotations omitted). Moreover, if it is reasonably foreseeable to a defendant that his co-conspirator possesses a gun, constructive possession is attributable to him as well. However "[w]e are not willing to indulge the fiction that a firearm's presence always will be foreseeable to persons participating in illegal drug transactions.... [A]t a minimum, we require that there be objective evidence that the defendant knew the weapon was present, or at least knew it was reasonably probable that his coconspirator would be armed." Cochran, 14 F.3d at 1133.

In the present case, we cannot conclude that the district court clearly erred by enhancing Williams's sentence for possession of a firearm. First, Williams was arrested during the execution of a search warrant at a residence that was clearly the location of much of the drug activity. Near him on a shelf in the room where he was arrested was a loaded handgun, easily accessible by anyone in the residence. During the change of plea hearing, an officer described the search of the residence and who was present. He added: "Near the person of Maurice Williams a loaded handgun was recovered.... The firearm was present for the purpose of protecting the cocaine base that was seized." Joint Appendix ("J.A.") at 645 (Change of Plea Hr'g at 30). Williams accepted these statements as true when asked by the district judge, and pleaded guilty both to being a part of the conspiracy and to a "use or carry" count prior to Bailey, thereby effectively admitting the facts underlying that count. Although it is a closer case than many, it was not clear error for the district court to find that the government had met its burden of proving by a preponderance of the evidence that Williams constructively possessed a weapon during the course of this conspiracy.

Second, Williams argues that the government should have moved for a downward departure under U.S.S.G. § 5K1.1 for Williams's provision of substantial assistance to the government. Williams seems to concede that absent a condition in the plea agreement that binds the government to move for a downward departure, Williams is...