U.S. v. Booker

• Decision Date: 03 February 2006
• Docket Number: No. 04-3152.,04-3152.
• Citation: 436 F.3d 238
• Parties: UNITED STATES of America, Appellee v. Charles BOOKER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

436 F.3d 238

UNITED STATES of America, Appellee v. Charles BOOKER, Appellant.

No. 04-3152.

United States Court of Appeals, District of Columbia Circuit.

Argued December 13, 2005.

Decided February 3, 2006.

Appeal from the United States District Court for the District of Columbia (No. 04cr00049-01).

Mary E. Davis, appointed by the court, argued the cause and filed the brief for appellant.

Thomas S. Rees, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S. Attorney at the time the brief was filed, and Thomas J. Tourish, Jr. and Florence Pan, Assistant U.S. Attorneys. Roy W. McLeese, III, Assistant U.S. Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, and SENTELLE, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Senior Circuit Judge WILLIAMS.

SENTELLE, Circuit Judge.

Charles Booker appeals his conviction and imprisonment for "constructive possession" of a firearm. Booker argues there was insufficient evidence to support his conviction and that his sentence must be vacated and remanded in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because we agree only with Booker's second argument, we affirm his conviction for "constructive possession" of a firearm, but we vacate his sentence and remand to the District Court for further proceedings consistent with this opinion.

I. Background

In January 2004, an undercover officer with the D.C. Metropolitan Police Department approached Charles Booker and expressed interest in purchasing some crack cocaine. While the officer waited in his unmarked car, Booker ran about 50 feet up the street and returned 10 or 20 seconds later with a Newport cigarette pack. From the pack, Booker shook out two small Ziploc bags containing crack cocaine and gave one to the officer in return for $20 in prerecorded funds. The undercover officer left, and Booker walked back up the street to re-hide the Newport pack.

Two or three minutes later, several uniformed officers arrived to arrest Booker. One member of the arrest team asked Booker what he was doing outside, and Booker responded that he was looking for his Newport cigarettes. Officer Michael Penn, another member of the arrest team, then walked 50 feet up the street and found Booker's Newport pack lying on the ground. When Penn bent down to investigate, he saw a black handgun "right beside" the Newport cigarette pack.

Booker was charged in a four-count indictment for unlawful distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count One); unlawful possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count Two); using, carrying, or possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Three); and unlawful possession of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (Count Four).

At trial, the government introduced evidence that the gun was loaded, and the Newport pack contained 3.8 grams of cocaine base, 75% pure. Although Booker's fingerprints were on neither the gun nor the Newport pack, the government linked Booker to the drugs through the undercover officer's testimony about the drug sale; the government also introduced evidence that Booker has previously sold crack using the same modus operandi (i.e., dispensing crack from a Newport pack in the same neighborhood). The government then linked the gun to the drugs by offering photographic evidence of their physical proximity, and expert testimony that guns and drugs are "like a marriage. They can't do without the other." Unhelpfully, the photograph is not included in the parties' submissions in this case. However, Booker does not contest the government's assertion that the gun was lying approximately five inches away from the Newport pack, nor does Booker contest that the gun was clean and frost-free, notwithstanding the fact that it was recovered on a bitterly cold winter evening.

At the close of the government's case-in-chief, Booker moved for a judgment of acquittal. The District Court denied the motion. The defendant then called his only witness, a private investigator, who introduced additional photographs of the neighborhood in which Booker was arrested. According to the defendant's private investigator, Booker was arrested 80 feet—not 50 feet—away from the gun-and-drugs stash.

Booker did not renew his motion for judgment of acquittal at the close of all the evidence. On May 10, 2004, the jury found appellant guilty on all four counts. On May 16, 2004, the defendant moved for a judgment of acquittal or, in the alternative, for a new trial. The District Court denied the motions.

On October 26, 2004, the District Court imposed a sentence under the Guidelines of 240 months on Count One, 240 months on Count Two, 60 months on Count Three, and 360 months on Count Four. The terms on Counts One, Two, and Four were to run concurrently, while Count Three was to run consecutively to all other counts. Thus, the District Court imposed an aggregate Guidelines sentence of 35 years in prison. Pending the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing judge also announced a non-Guidelines "alternative sentence": ten years on Count One, ten years on Count Two, five years on Count Three, and 15 years on Count Four. Counts One and Two were to be served concurrently. Count Four was to be served consecutively to the ten years on Counts One and Two. Count Three was to be served consecutively to all other counts. Thus, the District Court imposed an aggregate non-Guidelines "sentence" of 30 years in prison. The District Court entered both sentences on the judgment form.

II. Sufficiency of the Evidence

A

We will affirm a conviction where "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); see also United States v. Wahl, 290 F.3d 370, 375 (D.C.Cir.2002). We do not distinguish between direct and circumstantial evidence, and we give "full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact." United States v. Clark, 184 F.3d 858, 863 (D.C.Cir.1999) (internal quotation marks and citations omitted). We "review the evidence of record de novo, considering that evidence in the light most favorable to the government." Wahl, 290 F.3d at 375.

Ordinarily, "an appellant seeking to overturn a jury verdict for insufficient evidence bears an exceedingly heavy burden." United States v. Salamanca, 990 F.2d 629, 637 (D.C.Cir.1993). However, where a defendant fails to renew his motion for a judgment of acquittal (MJOA) under FED. R. CRIM. P. 29(a) at the close of all the evidence, his burden is even heavier: He "has waived his right to raise a sufficiency of the evidence claim on appeal" unless "declining to consider the sufficiency of the evidence on waiver grounds cause[s] a `manifest miscarriage of justice.'" United States v. Thompson, 279 F.3d 1043, 1051 (D.C.Cir.2002) (quoting United States v. Sherod, 960 F.2d 1075, 1077 (D.C.Cir.), cert. denied, 506 U.S. 980, 113 S.Ct. 480, 121 L.Ed.2d 385 (1992)). We note that Booker—like the defendants in Thompson and Sherod—failed to renew his MJOA at the close of all the evidence. Unlike the defendants in Thompson and Sherod, however, Booker did renew his MJOA after the jury verdict. Insofar as the "miscarriage of justice" standard is intended simply to ensure that the District Court has the opportunity to order an MJOA after receiving all the evidence, see Sherod, 960 F.2d at 1077, Booker's post-verdict motion may be sufficient to preserve his objections to the sufficiency of the evidence against him. We need not determine this issue in the present case, because for the reasons set forth below, we conclude a rational juror could have convicted Booker for "possessing" the handgun.

B

Booker argues the prosecution did not establish that he "possessed" a gun for purposes of either Count Three or Count Four because the gun was not found on his person, no one saw him holding it, and no fingerprints were recovered from it. However, we have long held that "possession" for purposes of both §§ 922(g)(1) and 924(c)(1) "may be either actual or constructive." United States v. Alexander, 331 F.3d 116, 127 (D.C.Cir.2003) (upholding a conviction under § 922(g)(1) on the basis of "constructive possession"); see also Wahl, 290 F.3d at 375-76 (upholding a conviction under § 924(c)(1) on the basis of "constructive possession").

We agree with the government that there was ample evidence to justify the jury's verdict that Booker "constructively possessed" the handgun for purposes of both Count Three and Count Four. "Constructive possession is established with evidence supporting a finding that the defendant had the ability to exercise knowing dominion and control over the items in question." Wahl, 290 F.3d at 376 (internal quotation marks and citations omitted). "Although mere proximity to a gun is insufficient to establish constructive possession, evidence of some other factor—including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise—coupled with proximity may suffice." Alexander, 331 F.3d at 127 (internal quotation marks and citations omitted). In this case, several Alexander-type "plus factors" allowed the jury to infer Booker's "connection with [the] gun." The government's drug expert testified that drug dealers...