U.S. v. Alexander, 01-3170.

Citation292 F.3d 1226
Decision Date11 June 2002
Docket NumberNo. 01-3170.,01-3170.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ronald D. ALEXANDER, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

David M. Lind, Assistant United States Attorney (James E. Flory, United States Attorney, with him on the brief), Wichita, KS, for Plaintiff Appellee.

Kari S. Schmidt of Foulston Conlee Schmidt & Emerson, LLP, Wichita, KS, for Defendant Appellant.

Before HARTZ, ALDISERT* and HOLLOWAY, Circuit Judges.

ALDISERT, Circuit Judge.

Ronald D. Alexander appeals the sentence imposed following a jury verdict finding him guilty of unlawful possession with the intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841. His contentions on this appeal require us to decide whether the district court properly enhanced Appellant's sentence (1) pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon and (2) pursuant to U.S.S.G. § 3C1.1 for obstructing or impeding the administration of justice. We must also decide whether we should entertain Appellant's ineffective assistance of counsel claim on direct appeal.

Section 2D1.1(b)(1) provides for a two-level sentence enhancement if a dangerous weapon (including a firearm) was possessed during a drug conspiracy. United States v. Vaziri, 164 F.3d 556, 568 (10th Cir.1999). "The government's initial burden is met `when it shows that a weapon was located near the general location where at least part of a drug transaction occurred.'" United States v. Heckard, 238 F.3d 1222, 1233 (10th Cir.2001) (quoting Vaziri, 164 F.3d at 568). Section 3C1.1 provides:

If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1.

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. Appellant timely appealed his conviction and sentence in compliance with Rule 4(a)(1) of the Federal Rules of Appellate Procedure. We have jurisdiction pursuant to 28 U.S.C. § 1291. In sentencing matters, factual findings are reviewed under the clearly erroneous standard. "[W]here the appellant `ask[s] [the court] to interpret the Guidelines or hold the facts found by the district court are insufficient as a matter of law to warrant an enhancement, [the court] must conduct a de novo review.'" United States v. Valdez, 225 F.3d 1137, 1142 (10th Cir.2000) (citing United States v. Checora, 175 F.3d 782, 789 (10th Cir.1999)).

I.

We quickly dispose of Appellant's ineffective assistance of counsel contention. This court has made it quite clear that "[i]neffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed." United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.1995) (en banc) (citing Beaulieu v. United States, 930 F.2d 805, 806-807 (10th Cir.1991)). As recognized in Galloway, effective review of ineffective assistance of counsel claims requires that a factual record be developed in and addressed by the district court in the first instance. Id. at 1240.

We now turn to the contention that there was insufficient evidence to support the enhancement of Appellant's sentence under § 2D1.1(b)(1) for possession of a firearm in connection with a drug trafficking offense.

II.

It is necessary to set forth the facts that undergird Appellant's contention that there was insufficient evidence. On April 22, 1999, following a controlled buy of crack cocaine, officers from the Wichita Police Department's Special Community Action Team ("SCAT") executed a search warrant at 847 South Mission in Wichita, Kansas. This was the home of Appellant Ronald D. Alexander and his cousin Andre Alexander, who was a co-defendant in the district court proceedings. At the time the police approached the dwelling, there were four people in the house: Ronald, Andre, Andre's girlfriend, Devon Anderson, and Donya Myer. The police knocked on the front door and announced who they were, stating that they were there to execute a search warrant. Upon hearing this, Appellant and Donya Myer ran out the back door. The police soon captured Myer, however, Appellant initiated a foot race with police officers. Unfortunately for Appellant, the law enforcement personnel were able to take him into custody after he slipped and fell. At this time, Appellant had $700.00 in his pocket.

The police found Andre in the front room of the first floor and Devon Anderson in Andre's bedroom. The police then initiated a search of the premises. The officers were looking for evidence of cocaine and they found it — scales with cocaine residue in the kitchen and approximately 1.45 grams of crack cocaine in Appellant's bedroom. But it was in Andre's bedroom closet where police found the evidence most relevant to the firearm enhancement issue. They found a plastic Tupperware carton containing cash, a cigar box and, next to it, a bag containing approximately 14.6 grams of crack cocaine. In the box was a nine millimeter handgun and a loaded nine millimeter magazine. Significantly, Appellant's left thumb print was found on the cigar box.

On the basis of this and other matters not relevant here, Appellant and his cousin Andre were indicted in a one-count indictment for possession with intent to distribute five or more grams of a mixture or substance containing a detectable amount of crack cocaine base (crack cocaine) in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. Andre entered a plea of guilty and was duly sentenced. However, it was not until October 2000 that Appellant was arrested and returned to the District of Kansas. Appellant filed a motion in limine to suppress statements he made following his arrest contending that, because he was intoxicated, he could not remember whether Police Officer Tucker administered appropriate Miranda warnings before obtaining a statement. A hearing followed and the district court judge refused to credit Appellant's testimony. Following a jury trial, the jury returned the following verdict: "We the jury, duly impaneled and sworn, upon our oaths find the Defendant, Ronald D[.] Alexander, guilty as charged in Count 1 of the indictment. What quantity of crack cocaine did Defendant possess on April 22nd, 1999? 16.41 grams." Record, Vol. VI, Doc. 88 at 353.

III.
A.

Appellant's principal argument on the firearm enhancement issue is somewhat convoluted. He argues that because the Guidelines fail to define any form of the word "possess," although they do define "brandished or otherwise used," § 2D1.1(b)(1) is impermissibly vague because "possess" has many meanings. From this major premise he argues that because the word "possess" is vague and ambiguous, the rule of lenity should apply, and therefore we should conclude that the government failed to prove possession. Appellant's Brief at 16.

Whatever force Appellant's argument may have in an abstract, theoretical discourse, we are not writing on a clean slate here. There is a profound body of law of this court that informs our decision. Section 2D1.1 provides for an offense level enhancement of two points "`[i]f a dangerous weapon (including a firearm) was possessed' during a drug conspiracy." Vaziri, 164 F.3d at 568 (quoting U.S.S.G. § 2D1.1(b)(1) (1995)). This court has determined that "[t]he [enhancement for weapon possession] should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." United States v. Humphrey, 208 F.3d 1190, 1210 (10th Cir.2000) (quoting U.S.S.G. § 2D1.1, cmt. n. 3 (2001)). "The initial burden is on the government to prove possession of the weapon by a preponderance of the evidence, which may be satisfied by showing `mere proximity to the offense.'" Id. (quoting United States v. Smith, 131 F.3d 1392, 1400 (10th Cir.1997)). This initial burden is met "when it shows that a weapon was located near the general location where at least part of a drug transaction occurred." Heckard, 238 F.3d at 1233 (10th Cir.2001) (quotation marks and citations omitted).

After the government has met this burden, a defendant can still avoid the enhancement if he can prove that it is clearly improbable that the weapon was connected to the offense ... [I]n a drug conspiracy conviction the adjustment should be applied unless it is clearly improbable that the weapon was connected with the conspiracy offense.

Humphrey, 208 F.3d at 1210 (citing United States v. Goddard, 929 F.2d 546, 548 (10th Cir.1991)).

Enhancement under § 2D1.1(b)(1) is "designed to reflect the increased danger of violence when drug traffickers add firearms to the mix." United States v. Flores, 149 F.3d 1272, 1280 (10th Cir.1998) (citing United States v. Contreras, 59 F.3d 1038, 1040 (10th Cir.1995)).

Although in many cases the weapon will be involved with some sort of illegal transaction, it is not necessary for the Government to show that drugs and money changed hands near the weapon; the weapon may simply serve as a potentially deadly means of protecting the trafficker's goods, thereby increasing the danger of violence.

Id.

"Possession of a weapon in connection with a drug trafficking offense `is established if the government proves by a preponderance of the evidence that a temporal and spacial relation existed between the weapon, the drug trafficking activity, and the defendant.'" Id. (citing United States v. Roederer, 11 F.3d 973, 982 (10th Cir.1993) (internal quotation and citation omitted)). The necessary nexus between the weapon, drug trafficking and defendant "may be established by showing that...

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