U.S. v. Nelson, s. 92-5227
| Decision Date | 06 October 1993 |
| Docket Number | Nos. 92-5227,92-5264 and 92-5317,s. 92-5227 |
| Citation | 6 F.3d 1049 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Byron Perrymore NELSON, a/k/a Steve Stevenson, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald Anthony NELSON, a/k/a Chris Stevenson, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Talbert Wayne MORGAN, a/k/a Troy Edwards Townes, a/k/a Troy Edwards, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Urs Roland Gsteiger, Wilson & Iseman, Winston-Salem, NC, argued, for appellant Morgan.
Walter C. Holton, Jr., Holton & Menefee, Winston-Salem, NC, argued, for appellant Donald Nelson.
David Ferris Tamer, Winston-Salem, NC, argued, for appellant Byron Nelson.
David Bernard Smith, Asst. U.S. Atty., Greensboro, NC, argued (Robert H. Edmunds, Jr., U.S. Atty., on brief), for appellee.
Before WIDENER, Circuit Judge, CHAPMAN, Senior Circuit Judge, and FABER, United States District Judge for the Southern District of West Virginia, sitting by designation.
The three appellants and two codefendants were indicted of possession with intent to distribute crack cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(A) (Count 1), possession of cocaine hydrochloride with intent to manufacture crack in violation of 21 U.S.C. Sec. 841(a)(2), and (b)(1)(A) (Count 2), and possession of three firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1) (Count 3). Byron Nelson and Donald Nelson were convicted on all counts, and Morgan was convicted on Counts 1 and 2, but acquitted as to Count 3. At sentencing the trial judge enhanced Morgan's base offense level for possession of a firearm during the commission of offenses covered by Counts 1 and 2 pursuant to U.S.S.G. Sec. 2D1.1(b)(1) (1991). Each defendant claims that the evidence was not sufficient to convict him on any of the counts. Morgan argues that the sentencing court erred in denying his motion for a reduction in sentence, because he had a minor role in the offense and that it was error for the court to increase his base offense level for possession of the firearms after the jury had acquitted him on this charge. We affirm each conviction and each sentence. We find no error in the trial court's failure to grant Morgan a reduction because of his claim that he played only a minor role, and we find no error resulting from the 2 level increase in Morgan's base offense level for possession of the firearms, although the jury had found him not guilty of this offense.
At approximately 7:00 a.m. on October 26, 1991, Greensboro police officers arrived at 1717 Grove Street, Greensboro, North Carolina, to execute a search, pursuant to a proper warrant, of the residence located at this address. After announcing their identity and their purpose several times without any response from the occupants of the residence, the officers proceeded to break in the front door with a battering ram. Upon entering the house, the officers proceeded to the master bedroom, which was occupied by four black males, one of whom was attempting to hold the door shut while the other three jumped through a window in a vain effort to escape. Defendant Morgan was chased about three blocks before he was apprehended, defendant Donald Nelson was caught trying to climb a fence wearing only his underwear, and Byron Nelson was arrested at about the same time and place.
After the appellants were in custody, the search of the residence proceeded. The officers found $9,900 in currency in the top drawer of the dresser located in the master bedroom. Scattered about the floor of the same room and on the bed were several plastic bag corners cut from sandwich bags which are commonly used to package drugs for sale. There was also a mobile scanner which had been programmed to the Greensboro police frequency so as to allow monitoring of police radio transmissions. A number of documents were seized in the master bedroom, including a First Union Bank savings transaction register in the name of Byron P. Nelson showing a deposit of $383 on May 29, 1991 and a deposit of $111.39 on July 3, 1991; a Dial-A-Page receipt from Dial-A-Page Company, 2881 Emanuel Road, Greensboro, made to Robert Pennix, dated September 3, 1991; a First Union Savings Bank deposit slip dated July, 1991, for $111.39; another Dial-A-Page receipt made to Troy Townes (an alias used by the defendant Morgan), dated August 8, 1991 in the amount of $34.78; another Dial-A-Page receipt made to Troy Townes dated September 3, 1991 for $28.50; a USAir ticket in the name of T. Townes dated August 20, 1991 showing travel from New York City to Greensboro for $276; a copy of a money order paid to Dennan Davidson sent by Donald Nelson, 1717 Grove Street, Greensboro, North Carolina, in the amount of $400 dated October 9, 1991; a Piedmont Natural Gas billing envelope addressed to Byron Nelson, 1717 Grove Street, Greensboro, North Carolina, postmarked June 26, 1991; a bill from Greensboro Radiology Associates dated August 8, 1991 for $23 addressed to Troy Townes, 405 Huntley Court, Greensboro, North Carolina; another Dial-A-Page bill addressed to Troy Townes, 1717 Grove Street, Greensboro, North Carolina, dated August 1, 1991, in the amount of $34.76; a New York State driver's license listed to Talbert W. Morgan, 1633-E 100 72nd Street, PH Bronx, New York, DOB 9/23/64, issued May 20, 1988, depicting a photo of a black male; a Savings of America account book and authorization book in the name of Arlene M. Nelson, 02-93 Bay View Avenue, Far Rockaway, New York; a Citicorp-Citi Bank savings book also in the name of Arlene Mae Nelson; a Southern Bell Telephone bill addressed to Agatha D. Johnson, 1717 Grove Street, Greensboro, North Carolina; a wallet including Social Security card for Troy Townes, a North Carolina driver's license for Troy Townes, 3107 Shallowford Road, Greensboro, North Carolina, issued May 30, 1991, a NationWide insurance card for Troy Townes (same address) issued May 17, 1991, and a temporary registration card for a 1948 Chevrolet registered to Troy Townes (same address) issued May 17, 1991; a wallet seized from a chest of drawers and containing a certified identification for Byron Nelson, 24 Stanley Street, Idlewood, New York, with a photograph showing DOB 2/11/67, Social Security number 134-72-0431; a North Carolina identification card for Byron Perrymore Nelson, 3107 Shallowford Road, Greensboro, North Carolina issued May 20, 1991; a resident alien card picturing a young black male with the name of Byron Perrymore Nelson; a First Union receipt showing a deposit on 10/15/91 of $30.08; a Social Security card for Byron P. Nelson, 134-72-2201; an MCI telephone card in the name of Arlene Nelson, a New York driver's license for Byron P. Nelson, 24 Stanley Street, Idlewood, New York, a Cash Mate Jamaican Savings Bank card in the name of Byron P. Nelson to expire 12/92; a First Union Bank card in the name of Byron P. Nelson to expire 5/94; two Dial-A-Page pagers; two sets of key rings, one with the name "Chris" engraved containing keys to the locks on the front and back doors of 1717 Grove Street, together with keys to a BMW with New York tags and a Toyota.
In the living room there were numerous trophies and certificates with the name "Byron Nelson." Behind some books on a book shelf was found a white powdery substance in a plastic bag which tested 91 percent pure crack cocaine weighing 4.94 grams.
In another bedroom the officers found Ronnie Fann and Pam Oglesby, both naked, and various airline tickets, receipts, utility bills and other documents in the name of Donald Nelson addressed to 1717 Grove Street, Greensboro, North Carolina, and a distribution size quantity of marijuana in a cereal box.
In the dining room and kitchen areas, the officers found two firearms: a loaded TEC-9 millimeter handgun, serial number 55369, and a loaded Smith & Wesson .44 magnum revolver, serial number N702225. Both weapons were out of view on top of the entertainment center. They were test fired and found to be operable. Inside a brown mug in a cupboard the officers found two off white rock substances that were analyzed as crack cocaine, and on the dining room table they found various documents, receipts, bus tickets, USAir boarding passes, five sheets of yellow lined paper bearing drug record notes, and a notice from the Greensboro Water & Sewer Department, all addressed to Byron Nelson or naming Byron Nelson at 1717 Grove Street, Greensboro, North Carolina.
The bathroom cabinet underneath the sink also produced a small bag of crack cocaine. The BMW and the Toyota were searched and the BMW contained various documents connecting Byron Nelson and Troy Townes to 1717 Grove Street. The Toyota contained postal service express mail and Western Union money transfer orders in the name of Donald Nelson at 1717 Grove Street. The kitchen area produced crack cocaine residue in a glass coffee pot, a set of scales containing cocaine residue, 125.1 grams of 87 percent pure cocaine base from an overhead cabinet and 254.6 grams of 96 percent pure cocaine hydrochloride in a black leather waist pouch. On top of the counter were a cigar, 1 packaging materials, baking soda, razor blades, a spoon and Ziploc plastic bags, a strainer used in the manufacture of crack from cocaine hydrochloride and a number of bills and documents in the name of Byron Nelson, giving an address of 1717 Grove Street. Directly across the hall from the master bedroom, a .32 caliber semi-automatic pistol and a box containing .44 caliber ammunition was found in a closet. Other identification and documents connecting Donald Nelson to 1717 Grove Street were found in a pair of bluejeans in the den.
Byron Nelson told the officers that he had moved from Far Rockaway, New York to his sister's home at 3107 Shallowford Road,...
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