Boone v. Quintana
| Decision Date | 27 June 2016 |
| Docket Number | Civil Action No. 5: 14-84-DCR |
| Parties | REGINALD BOONE, Petitioner, v. FRANCISCO QUINTANA, Warden, Respondent. |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is pending for consideration of the Response filed by Warden Quintana to the Court's March 21, 2016, Memorandum Opinion and Order. [Record Nos. 27, 29] Petitioner Reginald Boone has not filed any reply in further support of his petition, and this matter is therefore ripe for decision.
The Court summarized the factual and legal background relevant to Boone's claims in its prior opinion [Record No. 23], and will not repeat them in detail here. In summary, Boone was convicted in 1993 of "using" a firearm during the commission of a drug trafficking crime, a violation of 18 U.S.C. § 924(c)(1)(A), because he had an acquaintance purchase a shotgun on his behalf for $150 cash and tipped his buyer with $30 worth of crack cocaine. The trial court imposed a sixty-month sentence for this offense, set forth in Count 27 of the indictment, to run consecutively to the other sentences imposed. United States v. Boone, No. 2: 92-CR-113-2 (E.D. Va. 1992); Brief for Appellant, United States v. Boone, No. 96-4971 (4th Cir. 1997), 1997 WL 33544158, at *1-2. On direct appeal, the Fourth Circuit rejected Boone's claim that merely buying a shotgun could not constitute the "use" of it within the meaning of § 924(c), concluding that this argument was foreclosed by Smith v. United States, 508 U.S. 223 (1993) (). United States v. Harris, 39 F. 3d 1262, 1269 (4th Cir. 1994).
However, a decade after Boone's conviction became final, the Supreme Court held that "a person does not 'use' a firearm under § 924(c)(1)(A) when he receives it in trade for drugs." Watson v. United States, 552 U.S. 74, 83 (2007). In his § 2241 petition, Boone contends that Watson invalidates his § 924(c) conviction in Count 27 and that his claim is one of "actual innocence" cognizable under § 2241. [Record No. 1 at pp. 8-9 (citing United States v. Thomas, 627 F. 3d 534, 535-36 (4th Cir. 2010))] In its prior opinion, the Court concluded that Boone appeared to be entitled to relief, determining that his Watson claim is cognizable in a § 2241 petition because a motion under 28 U.S.C. § 2255 was structurally inadequate to raise it, and because Watson is retroactively applicable to cases on collateral review. To conclusively determine the final issue under Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012) - whether Watson rendered Boone's conduct non-criminal - the Court solicited a response from the warden to clarify whether Boone was convicted solely of "using" a firearm under § 924(c)(1)(A). [Record No. 23 at pp. 8-9]
The warden's Response provides substantial background materials from the underlying criminal proceedings which are largely, although not entirely, consistent inindicating that Boone was charged and convicted only of "using" a firearm under § 924(c)(1)(A). [Record No. 27] The indictment charged Boone only with using the shotgun.
On or about November 13, 1991, at Norfolk, Virginia, in the Eastern District of Virginia, REGINALD BOONE, a/k/a "Reggie", defendant herein, during and in relation to a drug trafficking crime for which he can be prosecuted in a court of the United States, used a firearm, to wit: a Maverick twelve gauge pump shotgun, Serial Number MV76721A. (In violation of Title 18, United States Code, Section 924(c)(1)).
[Record No. 27 at p. 2 (emphasis added); see also Record Nos. 27-10 at p. 2; 27-11 at p. 4]
At trial, Napolean Yarn testified that Boone had given him $150 to purchase a shotgun for him; that he had purchased the weapon; and that Boone had given him $30 worth of crack cocaine for his trouble. However, Yarn did not offer any further testimony about Boone or the shotgun after the transaction was completed. [Record No. 27-2 at pp. 6-11] The jury found Boone guilty of Count 27 on the indictment, and the verdict form neither provided room for clarification nor required further elaboration. [Record No. 27-4 at p. 2] The presentence report described Boone's conviction as one only for the use of a firearm. [Record No. 29 at pp. 3, 5]
Similarly, at the initial sentencing and subsequent resentencing hearings both counsel and the trial court treated his conviction as one for use of the firearm, and such was embodied in the judgment entered in the case. [Record Nos. 27-12 at pp. 18-20; 27-13 at p. 19; 27-8 at 17-18] The only variation from this otherwise consistent narrative is found in the instructions to the jury, which advised - incorrectly - that Count 27 alleged that Boonehad "used or carried a firearm during and in relation to the commission of a drug trafficking crime." [Record No. 27-3 at p. 3 (emphasis added)]
The warden concedes that Boone is entitled to relief if the charge in the indictment controls.
If the language of the indictment is determinative, then it appears that Boone was convicted solely under § 924(c)'s "use" prong, as that document charges him only with having "used a firearm," not with carrying or possessing it. Thus, Boone's situation is distinguishable from cases in which the § 924(c) conviction was affirmed because the defendant had also been charged with "carrying" or "possessing" a firearm, and the evidence was sufficient to support the conviction under those other prongs of the statute. In the present case, the government previously relied only on the barter aspect of the transaction, rather than asserting that Boone actively carried or employed the weapon at issue in Count 27, in arguing for the affirmance of his conviction. Boone's case, therefore, would seem to be indistinguishable from Watson, which rejected the government's argument that "use" could mean "receipt in barter."
[Record No. 27 at pp. 7-8 (citations omitted; emphasis added)]1
With respect to the jury instructions, the warden notes that the difference between the narrow charge in the indictment and the broader language in the jury instruction would likely not be enough to constitute a constructive amendment of the indictment under United States v. Kuehne, 547 F.3d 667, 684 (6th Cir. 2008), but candidly acknowledges thatKuehne addresses a distinct legal issue and arose in a different context, significantly limiting its utility here. [Record No. 27 at pp. 9-11]
As the Court noted in its prior opinion, some courts have concluded that Watson does not mandate habeas relief in every case where a defendant was convicted under § 924(c) for buying a gun with drugs. [Record No. 23 at pp. 8-9] But in each of those cases the court held that the § 924(c) conviction could stand only because the defendant had been indicted and convicted not only of "using" the firearm, but also of either "carrying" it or "possessing" it in furtherance of a drug trafficking crime. Zuniga-Hernandez v. Childress, 548 F. App'x 147, 150-51 (5th Cir. 2013) (); Winkelman v. Longley, No. 11-159E, 2011 WL 7025927, at *6-8 (W.D. Penn. Nov. 9, 2011) () (citing United States v. Gardner, 602 F.3d 97, 101-02 (2d Cir. 2010) ()); see also Morsley v. Holt, No. 1: CV-11-1246, 2014 WL 2941221, at *5 (M.D. Penn. June 30, 2014) ().
Here, while the jury instructions were broad enough to cover either use or carrying, the warden concedes that the indictment charged Boone only with using the firearm, andno evidence was offered at trial to support the notion that Boone carried the firearm on the date specified in the indictment in furtherance of a drug trafficking crime apart from the barter transaction invalidated by Watson. [Record No. 27-2 at pp. 6-1; 27-10 at p. 2; 27-11 at p. 4] The Supreme Court in Smith noted that what matters is the crime for which the defendant was actually indicted and convicted, not what other charges might have been supported by the evidence. Smith v. United States, 508 U.S. 223, 228 (1993) ( )
Cases like Zuniga-Hernandez are therefore distinguishable where, as here, the government relied exclusively on the barter aspect of the transaction to support the § 924(c) conviction for "using" a firearm. Cf. Short v. Schultz, No. 7: 08CV00057, 2008 WL 1984262, at *5 n.3 (W.D. Va. May 6, 2008) (); see also Wright v. United States, No. 5: 03-CR-39, 2011 WL 3468417, at *2 (E.D.N.C. Aug. 8, 2011) ().
The Court,...
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