United States v. Barnes

• Citation: 822 F.3d 914
• Decision Date: 16 May 2016
• Docket Number: No. 15–5237.,15–5237.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Lester Allen BARNES, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

822 F.3d 914

UNITED STATES of America, Plaintiff–Appellee

v.Lester Allen BARNES, Defendant–Appellant.

No. 15–5237.

United States Court of Appeals, Sixth Circuit.

Argued: March 10, 2016.

Decided and Filed: May 16, 2016.

ARGUED: Amy Lee Copeland, Rouse + Copeland LLC, Savannah, Georgia, for Appellant. Cynthia F. Davidson, United States Attorney's Office, Knoxville, Tennessee, for Appellee. ON BRIEF: Amy Lee Copeland, Rouse + Copeland LLC, Savannah, Georgia, for Appellant. Cynthia F. Davidson, United States Attorney's Office, Knoxville, Tennessee, for Appellee.

Before: CLAY, GIBBONS, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH

, Circuit Judge.

A jury convicted Lester Barnes of drug trafficking and firearms offenses including, among other things, possession with intent to distribute oxycodone in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(C) and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Barnes argues on appeal that insufficient evidence supports his § 924(c) conviction, that the district court wrongly admitted certain evidence with respect to his possession with intent to distribute conviction, and that the district court improperly considered a 1998 drug conviction when determining Barnes's guidelines sentencing range. For the reasons that follow, we AFFIRM.

I. BACKGROUND

On March 22, 2013, federal law enforcement agents looking for illegal prescription drugs executed a search warrant on a trailer home, which belonged to Barnes, in rural East Tennessee. The agents were acting on information from Jessica Holt, a confidential informant (CI) who had purchased oxycodone from Barnes during three recent controlled buys in coordination with law enforcement. The agents found roughly 300 pills in the trailer, mostly in prescription bottles bearing Barnes's name, and some in bottles prescribed to other individuals. They also found at least $1700 in cash—including marked bills from the CI's controlled buys—as well as ammunition and several firearms. Two guns were tucked under the corners of a waterbed mattress in the living room where Barnes slept and where he was seated when agents arrived to execute the search warrant.

A federal grand jury indicted Barnes on August 20, 2013, charging him with the following: three counts of distribution of oxycodone in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(C) based on the three times Barnes sold pills to the CI (Counts 1, 2, and 3); one count of possession with intent to distribute oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) based on the pills recovered from Barnes's trailer (Count 4); one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) based on the two guns found under Barnes's mattress (Count 5); and one count of unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) based on the total of seven guns recovered from Barnes's property (Count 6). On September 6, a magistrate judge ordered that Barnes be temporarily detained pending his arraignment and detention hearing. While Barnes was being held in a local jail, he placed three recorded telephone calls—two on September 8 to a woman named Susan, and one on September 10 to his daughter Danielle. During the calls, Barnes appeared to discuss pill distribution, the handling of drug proceeds, and certain firearms. The government indicated that it intended to introduce the recorded jail calls at trial, but Barnes moved to exclude the calls from evidence, and the district court granted in part and denied in part his motion. Specifically, the court ruled that the government could introduce only the portions of the recordings in which Barnes appeared to make statements about pill distribution for the purpose of showing Barnes's intent to distribute the oxycodone found in his trailer. The court explained that it would give the jury a limiting instruction to mitigate any risk of unfair prejudice to Barnes. The district court further determined that the remaining portions of the recordings were unfairly prejudicial to Barnes and therefore inadmissible under Federal Rule of Evidence 403

.

Trial commenced on October 28, 2014. Barnes twice moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a)

—first at the close of the government's case and again at the close of all evidence—arguing that there was insufficient evidence to sustain a conviction against him on any of the charges. The court denied Barnes's motion both times and submitted the case to the jury on October 29. The jury convicted Barnes of all six counts.

Neither Barnes nor the government filed objections to the presentence investigation report (PSR), which relied on Barnes's 1998 state conviction for a controlled substance offense in its calculation of Barnes's offense level and criminal history category under the United States Sentencing Guidelines (USSG). The PSR calculated Barnes's base offense level as 20 under USSG § 2K2.1(a)(4)(A)

, his adjusted offense level as 22 under USSG § 2K2.1(b)(1)(A), and assigned Barnes to criminal history category II. The PSR stated that the resulting guidelines range was 46–57 months of imprisonment and explained that because Count 5—the § 924(c) charge—carried a mandatory minimum of 5 years (60 months) that had to be imposed consecutively to any other prison term, Barnes's effective guidelines range was 106–117 months. The district court sentenced Barnes to 106 months of imprisonment. Barnes timely appealed.

II. ANALYSIS

Barnes advances three arguments on appeal, two of which concern the evidence against him and one that relates to his guidelines range. First, Barnes appeals his § 924(c)

conviction, arguing that there was insufficient evidence to show that he possessed a gun in furtherance of a drug trafficking crime. Second, Barnes argues that the district court abused its discretion by admitting any portion of the recorded jail calls. Third, Barnes contends that it was plain error for the court to consider his 1998 drug conviction at sentencing because that conviction was too old to be included in his guidelines calculation for the instant offenses. We address each of Barnes's arguments in turn.

A. The § 924(c)

Conviction

Section 924(c)

imposes criminal penalties on “any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm[.]” 18 U.S.C. § 924(c). This language criminalizes two distinct offenses: (1) using or carrying a gun during and in relation to a violent or drug trafficking crime; and (2) possessing a gun in furtherance of such a crime. See

United States v. Combs, 369 F.3d 925, 930–32 (6th Cir.2004). Barnes was charged with the latter offense—possessing a firearm in furtherance of a drug trafficking crime, here possession with intent to distribute oxycodone. He now challenges the sufficiency of the evidence underlying the jury's finding that he possessed the two guns under his waterbed mattress in furtherance of that crime. Barnes concedes that he possessed the guns, at least constructively, for purposes of the § 924(c)

conviction. He argues, however, that because his poor physical health would have prohibited him from lifting the mattress, there was insufficient evidence for a jury to find that the guns were strategically positioned so as to be quickly and easily available and, thus, insufficient evidence to find that Barnes possessed the guns in furtherance of a drug trafficking crime. The government responds that because “the firearms were under the corners of the waterbed mattress, not underneath the mattress as a whole” and because of “the proximity of the firearms to [Barnes] and his drugs, a rational jury could easily conclude that the defendant possessed those firearms to advance, promote, or facilitate the charged drug-trafficking crime.” (Appellee's Br. at 12.)

In reviewing insufficient evidence claims on appeal from a jury verdict we “view[ ] the facts in the light most favorable to the prosecution” and affirm the conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Sykes, 292 F.3d 495, 498–99 (6th Cir.2002)

; see also

United States v. Abboud, 438 F.3d 554, 589 (6th Cir.2006) (“When reviewing the sufficiency of evidence in support of a jury verdict, this Court views the evidence in the light most favorable to the prosecution and gives the prosecution the benefit of all reasonable inferences from the testimony.”). This standard creates “a very heavy burden” for defendants who, like Barnes, seek relief from a jury conviction on evidence sufficiency grounds. Abboud, 438 F.3d at 589 (citations omitted).

Our circuit recognizes that “[b]y requiring that the possession be ‘in furtherance of’ the crime, Congress intended a specific nexus between the gun and the crime charged.” United States v. Mackey, 265 F.3d 457, 462 (6th Cir.2001)

. “In other words, the weapon must promote or facilitate the crime.” Id. at 461. The mere “possession of a firearm on the same premises as a drug transaction [does] not, without a showing of a connection between the two, sustain a § 924(c) conviction.” Id. at 462. Rather, “the firearm must be strategically located so that it is quickly and easily available for use.” Id.; see also

Combs, 369 F.3d at 933 (concluding that “ ‘in furtherance of’ ... requires the government to prove ... that the firearm's presence in the vicinity of the crime was something more than mere chance or coincidence”). “Other factors that may be relevant to a determination of whether” or not the in-furtherance-of requirement has been met include: (1) “whether the gun was loaded,” (2) “the type of weapon,” (3) “the legality of its possession,” (4) “the type of drug activity conducted,” and (5) “the time and circumstances under which the...