U.S. v. Crump

• Decision Date: 23 July 1997
• Docket Number: No. 95-5903,95-5903
• Citation: 120 F.3d 462
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Norvell Webster CRUMP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 462

120 F.3d 462

UNITED STATES of America, Plaintiff-Appellee, v. Norvell Webster CRUMP, Defendant-Appellant.

No. 95-5903.

United States Court of Appeals Fourth Circuit.

Argued April 11, 1997.

Decided July 23, 1997.

ARGUED: Jane Moran, Williamson, WV, for Appellant. Rebecca A. Betts, United States Attorney, Huntington, WV, for Appellee. ON BRIEF: Sharon M. Frazier, Assistant United States Attorney, Huntington, WV, for Appellee.

Before HALL, WILKINS, and NIEMEYER, Circuit Judges.

Affirmed by published opinion. Judge K.K. HALL wrote the opinion, in which Judge WILKINS and Judge NIEMEYER joined.

OPINION

K.K. HALL, Circuit Judge:

Norvell Webster Crump was convicted in the district court of conspiring to possess cocaine base with the intent to deliver it, and, with regard to his possession of an antique shotgun he used to murder a rival drug dealer, of violating 18 U.S.C. §§ 922(g) and 924(c)(1). The district court sentenced Crump to life imprisonment plus five years. Crump appeals his convictions and sentence. We affirm.

I.

Late in the evening of July 20, 1994, the Huntington, West Virginia police, responding to an emergency call, discovered a dead body lying on the ground in the courtyard between a small house and a two-story building. The deceased was Vance Jones, a Charleston, West Virginia, resident who occasionally journeyed to Huntington to sell crack cocaine. Jones had been shot at close range with a 12-gauge shotgun. Crump was arrested the next day in connection with the crime, along with Leon Clairdy, an associate in Crump's drug trafficking operation.

The events leading to Jones's murder were ultimately pieced together at trial, largely through the testimony of five witnesses: Querida Dotson, who lived in the second-floor apartment of the building adjoining the courtyard; Curtis Jackson, who resided in the house across the way; Tammy Jackson, Curtis's wife, who had been at Dotson's apartment during the shooting; Clairdy, who, in accordance with a plea agreement, agreed to testify against Crump; and Clairdy's girlfriend, Jamie Redman.

Dotson had befriended Jones during one of his previous trips to Huntington, and she had permitted him to stay at her apartment in exchange for drugs. On this particular occasion, Jones had brought his brother, Bandele, with him. When Crump learned from Dotson that the Joneses had arrived, he plotted with Clairdy to rob them of their money and their drugs.

Crump and Clairdy put on dark clothing, and they walked the short distance from Redman's apartment to Dotson's. Crump carried a single-shot 12-gauge shotgun that had been crafted in 1911 by the Iver Johnson company, a Massachusetts gun manufacturer. Upon arriving at Dotson's apartment, the pair ascended the enclosed stairway and knocked on the door. When Dotson answered, Crump told her that he and Clairdy intended to rob the Joneses. Dotson declined to let them pass, however, out of concern for her children inside. Crump and Clairdy descended the stairs and waited beneath the overhang of a nearby carport.

As they waited, Mr. Jackson walked by, returning to his house from Dotson's apartment, where he had briefly gone to retrieve his cordless telephone from his wife. Crump had a short conversation with Jackson, during which Crump disclosed that he was "going to rob somebody." Not long after Jackson went back inside, Vance Jones, who apparently had been out plying his trade, arrived at the courtyard. As Clairdy watched, Crump confronted Jones and ordered him to lie down on the ground. When Jones refused, Crump shot him.

Crump and Clairdy immediately ran from the scene, stopping only for a few moments to permit Crump to disassemble the shotgun and dispose of it. Crump hid the weapon's receiver, comprising the stock and trigger apparatus, near an alley located behind an abandoned house. The pair then returned to Redman's apartment. Redman placed Crump's clothing in a plastic bag, which she then tossed into a vacant lot. The receiver and the clothing were eventually recovered by the police.

The grand jury charged Crump with (1) conspiring to possess and distribute cocaine base; (2) unlawfully possessing a firearm as a convicted felon; and (3) using and carrying a firearm during and in relation to a drug trafficking crime, i.e., attempting to possess through robbery a distributable amount of cocaine base. The firearms charges were alleged to be violative of 18 U.S.C. §§ 922(g) and 924(c)(1), respectively.

A jury found Crump guilty of all three counts. At sentencing, the district court found that Crump had committed first degree murder during the attempted robbery of Jones. Hence, pursuant to Sections 2D1.1(d)(1) (relating to offenses involving drugs) and 2K2.1(c)(1)(B) (relating to firearms offenses) of the Sentencing Guidelines, Crump's offense level was determined to be 43. The district court imposed concurrent life sentences on the drug conspiracy and felon-in-possession convictions, ¹ to which it appended five years for the § 924(c)(1) conviction. Crump appeals his convictions and his sentence.

II.

A.

Crump initially challenges the constitutionality of the firearms statutes that he stands convicted of violating, asserting that their continued vitality has been called into question by United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Lopez, the Supreme Court struck down the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), because it was unable to ascertain that the statute regulated an activity substantially affecting interstate commerce. We have recently upheld the constitutionality of § 922(g) against a Lopez challenge. See United States v. Wells, 98 F.3d 808, 811 (4th Cir.1996).

With regard to § 924(c)(1), we have no difficulty concluding that, at least to the extent that it criminalizes the use and carrying of a firearm during and in relation to a drug trafficking crime, the statute represents a valid exercise of Congress's authority under the Commerce Clause. The statute provides, in pertinent part:

Whoever, during and in relation to any crime of violence or drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for [five years to life, depending on the nature of the firearm, whether a destructive device was employed, and whether the violation gives rise to a second or subsequent conviction under the statute].

18 U.S.C.A. § 924(c)(1) (West Supp.1997). The resultant term of imprisonment is consecutive to that imposed for any other conviction. Id.

Crump does not contend that Lopez would bar his prosecution in federal court for the predicate offense in this case, i.e., attempting to possess a distributable amount of a controlled substance by relieving Jones of his drug stash. Indeed, in United States v. Leshuk, 65 F.3d 1105, 1112 (4th Cir.1995), we reaffirmed, in light of Lopez, the constitutionality of 21 U.S.C. § 841(a)(1), under which Crump could have been charged.

The question, rather, is whether that part of the statute proscribing the use or carrying of a firearm during or in relation to a federally prosecutable drug trafficking crime suffers from the same infirmities that, in Lopez, rendered unconstitutional the Gun-Free School Zones Act. The answer is no.

In Lopez, the Supreme Court observed that § 922(q) had "by its terms ... nothing to do with 'commerce' or any sort of economic enterprise." 514 U.S. at 561, 115 S.Ct. at 1630-31. The Court also noted that the statute had "no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce." Id. at 562, 115 S.Ct. at 1631.

In contrast, § 924(c)(1), "by its terms," prohibits only such use or carrying of a firearm that occurs during or in relation to a drug trafficking crime. "Trafficking," of course, not only substantially affects commerce; it is commerce. Moreover, the statute's reach is limited to a discrete set of drug trafficking crimes: those that "may be prosecuted in a court of the United States." It therefore contains the express restriction on indiscriminate prosecution that was lacking in the Gun-Free School Zones Act.

We hold that § 924(c)(1), insofar as it proscribes the use or carrying of a firearm during and in relation to a drug trafficking crime, passes constitutional muster under Lopez. Our holding places us in agreement with all of the circuits that have considered the question. See United States v. Staples, 85 F.3d 461, 463 (9th Cir.), cert denied, --- U.S. ----, 117 S.Ct. 318, 136 L.Ed.2d 233 (1996); United States v. Brown, 72 F.3d 96, 97 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 2581, 135 L.Ed.2d 1095 (1996); cf. United States v. Bolton, 68 F.3d 396, 399 n. 2 (10th Cir.1995) (§ 924(c)(1) constitutional, insofar as it prohibits the use or carrying of a firearm during or in relation to a crime of violence), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996).

B.

We reject the remainder of Crump's specific challenges to his firearms convictions. Crump maintains that, with respect to the § 922(g) charge, the government did not show that he possessed the shotgun "in or affecting commerce," and that, with respect to the § 924(c)(1) charge, the government failed to prove the predicate offense, i.e., the specific drug trafficking crime that the shotgun was used or carried during and in relation to.

In actuality, there was testimony that the shotgun used to murder Jones in West Virginia had been manufactured in Massachusetts, and, thus, that it had traveled in interstate commerce; such evidence is sufficient to establish the commerce element of § 922(g). United States v. Langley, 62 F.3d 602, 606 (4th Cir.1995) (en banc) ("to prove a violation of §...