U.S. v. Stanley, s. 911

• Decision Date: 21 March 1991
• Docket Number: Nos. 90-1505,1063,D,90-1511,Nos. 911,s. 911,s. 90-1505
• Citation: 928 F.2d 575
• Parties: UNITED STATES of America, Appellee-Cross-Appellant, v. John STANLEY, Defendant-Appellant Cross-Appellee. ockets
• Court: U.S. Court of Appeals — Second Circuit

Page 575

928 F.2d 575

59 USLW 2663

UNITED STATES of America, Appellee-Cross-Appellant, v. John STANLEY, Defendant-Appellant Cross-Appellee.

Nos. 911, 1063, Dockets Nos. 90-1505, 90-1511.

United States Court of Appeals, Second Circuit.

Argued Jan. 31, 1991.

Decided March 21, 1991.

Colleen P. Cassidy, New York City, The Legal Aid Soc., Federal Defender Services Unit, for defendant-appellant cross-appellee.

Jonathan D. Polkes, Brooklyn, N.Y., Asst. U.S. Atty. E.D.N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Susan Corkery, Matthew E. Fishbein, Asst. U.S. Attys., of counsel), for appellee-cross-appellant.

Before FEINBERG, MESKILL and CARDAMONE, Circuit Judges.

FEINBERG, Circuit Judge:

This case raises a significant and difficult issue in the application of the Sentencing Guidelines: whether the sentencing judge may depart downward from the guideline range because of a disparity in sentence between defendants who have engaged in similar conduct but are charged with different offenses as a result of plea-bargaining decisions by the prosecutor.

John Stanley was convicted in July 1990 in the United States District Court for the Eastern District of New York, Edward R. Korman, J., after a jury trial, on one count of possessing more than five grams of crack with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B) and one count of using a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c). In sentencing Stanley, the district judge departed downward from the range prescribed by the Sentencing Guidelines because of what he perceived as an unwarranted disparity in sentences caused by the use of Sec. 924(c) in plea negotiations by the United States Attorney for the Eastern District of New York. Stanley appeals from his conviction, challenging the sufficiency of the evidence to support it, and the government cross-appeals, challenging the ground for the downward departure. For reasons set forth below, we affirm on Stanley's appeal, but conclude that the downward departure was improper and remand for resentencing.

I. Sufficiency of the Evidence

Stanley challenges the sufficiency of the evidence to support his conviction on both the narcotics count and the firearm count. It is well settled that in reviewing such a claim, we must uphold the jury's verdict if, viewing the evidence in the light most favorable to the government and construing all possible inferences in its favor, any rational trier of fact could have found the essential elements of the crime. See, e.g., United States v. Torres, 901 F.2d 205, 216 (2d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Stanley's arrest resulted from the execution of a search warrant for a two-story building in Queens in the early morning of August 11, 1988. The government's evidence at trial showed that after the agents executing the warrant announced themselves at both the building entrance and the entrance to an apartment, they entered a bedroom within the apartment. There they found Stanley lunging from the bed, in which he and his girlfriend had apparently been sleeping, toward a dresser drawer, which was later found to contain a gun and ammunition. Stanley ignored the agents' shouted command, "Freeze, FBI," and the agents had to physically restrain him. The agents found drugs and drug paraphernalia in a number of places in the apartment, including the bedroom where Stanley was found, in quantities indicating that the apartment was used as a crack-packaging factory. Stanley thereafter dressed in clothes from the bedroom, including a shirt taken from a dresser drawer. When asked for his home address, Stanley gave the address of the building.

In his defense, Stanley offered the evidence of his brother, Earlous Tripp, who had pled guilty to drug trafficking and was cooperating with the government in other cases. Tripp testified that the apartment and the gun belonged to him, admitted that he used the apartment for storing and packaging drugs and also admitted that he limited access to the apartment to people whom he trusted to protect his drugs. Stanley also testified himself. He stated that he stayed in the apartment from time to time but did not live there, denied knowledge of the gun and denied reaching toward the drawer or moving from the bed at all when the agents came in. He also claimed that he did not see the drugs or drug paraphernalia in the apartment, relating an implausible story to account for not seeing the items in plain view.

Stanley principally argues that the most a jury could conclude from this evidence was that he was present in an apartment containing drugs, or that he was present with knowledge that a drug operation was going on. Relying on such decisions as United States v. Gaviria, 740 F.2d 174 (2d Cir.1984), and United States v. Soto, 716 F.2d 989 (2d Cir.1983), he argues that mere presence, even with the knowledge of drug activity, is insufficient to show that he knowingly and intentionally had dominion or control over the drugs or aided and abetted the commission of the charged narcotics offense. Stanley argues that even drawing all inferences in favor of the government, and accepting, as he must, the agents' version of the events, his action in reaching toward the gun showed merely attempted possession of a firearm, not that the gun or his use of it had anything to do with drugs.

We disagree. As the government argues, the jury could infer from Stanley's lunge for the gun concealed in the dresser that he was familiar with the apartment and its contents, including the drugs and drug paraphernalia found there. Because Stanley reached for the gun in response to the announced entry of law enforcement authorities, and also because Tripp acknowledged that he limited access to the apartment to those who would protect his drugs, the jury could also infer that Stanley was using the gun in defense of the drugs as a participant in the crack operation. These inferences could be supported by finding that the apartment housing the crack operation was also Stanley's home, based on Stanley's presence, his reach for the gun, the clothing taken from the drawer and his statement as to his home address. Finally, the jury was entitled to disbelieve Stanley's testimony, and use its disbelief to supplement the other evidence against him. See, e.g., United States v. Tyler, 758 F.2d 66, 69-70 (2d Cir.1985). Although appellant suggests competing inferences and explanations, it is the jury's task, not ours, to choose among them. The evidence, with the inferences to be drawn therefrom, was sufficient to allow a rational jury to find Stanley guilty on each of the two counts.

II. Downward Departure in Sentencing

The issues raised by the government's cross-appeal are much more difficult. Stanley was originally indicted on a single count of possession with intent to distribute more than five grams of crack in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B), an offense carrying a mandatory five-year minimum sentence and a 40-year maximum. Pursuant to an agreement with the government, he pled guilty in December 1988 to a superseding information charging him with possession of an unspecified quantity of crack in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(C), an offense with no mandatory minimum term of incarceration and a 20-year maximum.

After a presentence report had been prepared, Stanley, who was represented by new counsel, moved to withdraw his plea. The record of the plea withdrawal is sketchy at best. However, it appears from later proceedings that the district court allowed Stanley to withdraw the plea in part because of the court's view of the competence of Stanley's prior counsel, who had been involved in the plea negotiations. The court's confidence in prior counsel had been undermined by that counsel's failure to challenge certain aspects of the presentence report and an apparently gross underestimation of the applicable sentencing guideline range. The court also believed that the plea agreement offered no benefit to Stanley; the change in the section charged did not affect the applicable sentencing guideline calculations, and apparently neither the Assistant United States Attorney present (who was not involved in the original plea negotiations) nor defense counsel identified any other benefit.

After Stanley withdrew his plea, the government filed the instant superseding indictment, which reinstated the original Sec. 841(b)(1)(B) narcotics charge, and added a count charging Stanley with use of a firearm in connection with narcotics trafficking in violation of 18 U.S.C. Sec. 924(c). The latter offense carried a mandatory five-year sentence to be served consecutively to the sentence on the underlying narcotics offense. As stated above, the jury convicted Stanley on both counts.

The district court determined that Stanley's offense level for the narcotics count without taking the firearm into account was 28, resulting in a guideline range for his criminal history category of 87-108 months. Possession of a firearm during a narcotics trafficking offense is a specific offense characteristic under the Guidelines, and requires a two-level increase in the otherwise applicable offense level. United States Sentencing Guidelines (U.S.S.G.) Sec. 2D1.1(b)(1). If this two-level increase were applied to Stanley, his offense level would be 30, with a guideline range of 108-135 months. However, the Guidelines also direct that if a defendant is convicted under 18 U.S.C. Sec. 924(c), the enhancement should be disregarded, and the defendant should be sentenced to the consecutive five-year term mandated by the statute. U.S.S.G. Sec. 2K2.4(a) & application note 2. Disregarding the two-level enhancement and adding the mandatory consecutive five-year term for the Sec. 924(c) count...