Wright v. U.S.

• Decision Date: 26 October 1998
• Docket Number: No. 97-6255,RESPONDENT-APPELLEE,PETITIONER-APPELLANT,97-6255
• Parties: (6th Cir. 1999) KEVIN WRIGHT,, v. UNITED STATES OF AMERICA, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 458

182 F.3d 458 (6th Cir. 1999)

KEVIN WRIGHT, PETITIONER-APPELLANT, v. UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.

No. 97-6255

U.S. Court of Appeals, Sixth Circuit

Argued: October 26, 1998

June 28, 1999

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. Nos. 92-00005; 96-01022-Thomas A. Higgins, District Judge. [Copyrighted Material Omitted] Kevin Wright, White Deer, PA, Petitioner-Appellant pro se.

Kevin M. Schad (argued and briefed), Schad, Buda, Lucia & Cook, Cincinnati, Ohio, for Appellant.

Robert Anderson (argued and briefed), Office of the U.S. Attorney, Nashville, Tennessee, for Appellee.

Before: Jones and Cole, Circuit Judges; O'malley, District Judge^*.

Nathaniel R. Jones, Circuit Judge.

In 1992, a jury convicted petitioner-appellant Kevin Wright of conspiring to distribute cocaine base; distributing and possessing cocaine base with intent to distribute; using or carrying a firearm during and in relation to a drug trafficking crime; and aiding and abetting the commission of the aforementioned crimes. Wright was subsequently sentenced to 535 months of imprisonment, and we affirmed his conviction and sentence on appeal. See United States v. Wright, 16 F.3d 1429 (6th Cir. 1994). Wright thereafter filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, and now appeals from the district court's order denying in part that motion. For the reasons stated herein, we AFFIRM.

I.

On March 4, 1992, a federal grand jury for the Middle District of Tennessee returned a Superseding Indictment charging Wright with the following: conspiring to knowingly and intentionally distribute cocaine base from July 25, 1991 to August 23, 1991, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); knowingly and intentionally distributing, or possessing with intent to distribute cocaine base from July 27, 1991 to July 31, 1991, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 2); using or carrying a firearm during and in relation to a drug trafficking crime from July 27, 1991 to July 31, 1991, in violation of 18 U.S.C. §§ 924(c) and 2 (Count 3); knowingly and intentionally possessing with intent to distribute cocaine base on August 23, 1991, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 4); and using or carrying a firearm during and in relation to a drug trafficking crime on August 23, 1991, in violation of 18 U.S.C. §§ 924(c) and 2 (Count 5). The Superseding Indictment also named Aaron Bray, Rosco Kidd, Jr., David McWhorter, Dwight Gober and Samson Wright as co-conspirators.

Wright proceeded to a jury trial, at which several of his co-defendants and various other individuals testified to his involvement in the dealing, selling and distribution of crack cocaine¹. Specifically, Connie Daniels, who lived in an apartment in a Clarksville, Tennessee housing project, testified that during July 1991 she allowed Wright and his co-conspirators to use her apartment to deal and sell crack cocaine. She further testified that she then saw three of Wright's co-conspirators in possession of various weapons². Although she testified to seeing Wright handle crack cocaine on several occasions, she did not state that he possessed any weapons during July 1991. Daniels's testimony was corroborated by Anita Watkins, who went to Daniels's apartment during that time period to purchase crack cocaine³. Watkins also testified that she saw Wright and two or three other individuals in the back bedroom of Daniels's apartment "cutting" crack cocaine. She further stated that one of the individuals came out of the back room, into the living room, with a gun. At no point in her testimony, however, did Watkins state that she specifically saw Wright using or carrying any weapons during July 1991⁴. Similarly, Michael Fields testified that Wright hired him in June of 1991 to work as a "runner."⁵ Fields further testified that on three days in July, he went to Daniels's apartment to pick up crack cocaine from Wright to sell. Fields also stated that he saw several individuals with weapons at Daniels's home. Specifically, Fields stated that when he went to Daniels's apartment, he would go to the back room and knock on the door. The person at the door would then "open the door [with] a gun in his hand." J.A. at 369. Fields further identified a gun at trial as similar to one of the weapons Wright and his co-conspirators had in the back room of Daniels's apartment. According to Fields, the gun was, at the most, three feet away from the crack cocaine. Moreover, Fields testified that on July 31, 1991, four individuals, but apparently not Wright, exchanged gunfire with a drug customer.

The jury also heard from Dwight Gober, who testified that in order to obtain money to pay his college tuition, he agreed to accompany Wright to Clarksville to sell crack cocaine. Gober specifically testified regarding Wright's involvement in the crack cocaine operation during August 1991. Finally, Aaron Bray testified that during July 1991, he and other co-conspirators, including Wright, distributed crack cocaine from Daniels's apartment. Bray and other co-conspirators carried the weapons, while Wright handled the crack cocaine in the back room. Bray also stated that he "worked the door" at Daniels's apartment, and provided protection for the drug activities that occurred in the back room of the apartment. J.A. at 342. He stated that although no one specifically told him to provide such protection, he knew or understood that this was his role from his past experiences in drug operations. Bray also testified that on July 29, 1991, he, Wright and other co-conspirators had three firearms in a "pink gym bag."⁶

In 1992, a jury convicted Wright on all five counts, and Wright was subsequently sentenced to 535 months of imprisonment⁷. On appeal, this court affirmed his conviction and sentence. Wright, 16 F.3d at 1431. On November 4, 1996, Wright filed in the district court a § 2255 motion to vacate his sentence, alleging, among other things, that: 1) insufficient evidence existed to support his two § 924(c) convictions in light of Bailey v. United States, 516 U.S. 137 (1995); 2) his appellate counsel rendered ineffective assistance by failing to challenge the quantity of drugs used to determine his relevant conduct and his sentencing enhancement for a leadership role in the offense; and 3) the government failed to prove that he distributed crack cocaine, as opposed to another form of cocaine base, for sentencing purposes. The district court granted in part and denied in part Wright's motion. The court concluded that there was insufficient evidence to support Wright's § 924(c) conviction charged in Count 5. The district court therefore vacated Wright's conviction on that count, and resentenced him to 295 months of imprisonment. However, the district court denied Wright's remaining claims. Wright thereafter filed this timely appeal.

II.

In order to prevail on his § 2255 motion, Wright "must show a fundamental defect in his sentencing which necessarily results in a complete miscarriage of Justice or an egregious error violative of due process." Nagi v. United States, 90 F.3d 130, 133-34 (6th Cir. 1996)(internal quotations and citations omitted); see also Schledwitz v. United States, 169 F.3d 1003, 1011 (6th Cir. 1999)("To prevail under § 2255, a defendant must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or jury's verdict.")(citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). In reviewing the denial of a § 2255 petition, we review the district court's legal Conclusions de novo, and its factual findings for clear error. Rattigan v. United States, 151 F.3d 551, 554 (6th Cir. 1998).

III.

A. Section 924(c)(1) Conviction

On appeal, Wright argues that in light of Bailey, the district court erred in determining that the government established that he used or carried a firearm in violation of 18 U.S.C. §§ 924 and 2. An individual violates § 924 when he or she uses or carries a firearm "during and in relation to any crime of violence or drug trafficking crime." 18 U.S.C. § 924(c)(1)(A). In addition, § 2 of that chapter provides that:

"(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the Unites States, is punishable as a principal." 18 U.S.C. § 2.

In Bailey, the Supreme Court explained what conduct constitutes "use" under § 924. The Court determined that in order to show "use" for purposes of establishing a § 924 violation, the government must show that "the defendant actively employed the firearm during and in relation to the predicate crime." Bailey, 516 U.S. at 150 (finding that the defendant did not "use" the firearm where it was found, unloaded, in a footlocker in a closet). Such "active employment" includes "brandishing, displaying, bartering, striking with, and... firing or attempting to fire a firearm." Id. at 148. Although the Court in Bailey found it unnecessary to specifically articulate standards for what constitutes "carry" under § 924, the Court did note that an offender "carries" a firearm when he "keeps a gun hidden in his clothing throughout a drug transaction." Id. at 146. In addition, the Court distinguished "use" from "carry" and went on to note that "[a] defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds. Storage of a firearm, without its more active employment, is not reasonably distinguishable from possession." Id. at 149. This court, in United States v. Riascos-Suarez, 73 F.3d 616 (6th Cir. 1996), further elaborated on the carry prong and held that "in order for a defendant to be convicted of...