U.S. v. Gardner

• Decision Date: 25 May 2007
• Docket Number: No. 05-6272.,05-6272.
• Citation: 488 F.3d 700
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Travon GARDNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

488 F.3d 700

UNITED STATES of America, Plaintiff-Appellee, v. Travon GARDNER, Defendant-Appellant.

No. 05-6272.

United States Court of Appeals, Sixth Circuit.

Submitted: November 29, 2006.

Decided and Filed: May 25, 2007.

ON BRIEF: Deanna Bell Johnson, Brentwood, Tennessee, for Appellant. Harold B. McDonough, Jr., Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: BOGGS, Chief Judge; COOK, Circuit Judge; ROSE, District Judge.^*

OPINION

ROSE, District Judge.

On May 19, 2005, Travon Gardner was convicted in the United States District Court for the Middle District of Tennessee on four counts: (1) conspiracy to possess, with intent to distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. § 846; (2) aiding and abetting the attempt to possess, with intent to distribute, five or more kilograms of cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2; (3) aiding and abetting the possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2; and (4) aiding and abetting a felon in the possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 2. Gardner received concurrent sentences of 240 months of imprisonment for the first two offenses and a 60-month consecutive sentence on the third offense. On the fourth offense, Gardner received a sentence of 120 months of imprisonment, which was to run concurrently with his 240-month sentences on the first two convictions. Gardner's total sentence was 300 months of imprisonment.

Gardner filed a motion for a new trial, which was denied by the district court. He then appealed his conviction to this court. For the following reasons, we AFFIRM Gardner's convictions on the first three counts and REVERSE on the final count. Because Gardner's sentence of 300 months will remain the same despite the reversal of one of his convictions, we AFFIRM Gardner's sentence and decline to remand the case to the district court for resentencing.

I. BACKGROUND

Ricky Collins was arrested for drug violations in the fall of 2003 by Mike Thompson, Director of the Fifteenth Judicial Drug and Violent Crimes Task Force (the "Task Force"), and his agents. After his arrest, Collins worked as an informant for the Task Force. Collins had been a middleman drug dealer who brokered deals involving ounces of cocaine. Collins brokered cocaine that he received from Lorenzo McMillion.

In July 2004, Collins, working as an informant, contacted McMillion and told him that he had a source in Texas who could provide kilogram quantities of cocaine. McMillion responded that he would have to get in touch with his people to see what they wanted and asked Collins for the price for five kilograms. Collins indicated that the price would be between $10,000 and $15,000 per kilogram.

McMillion then contacted Steve Griffin, an individual he had been dealing with for four or five years, and quoted him the price range given by Collins. Griffin agreed to purchase the five kilograms. McMillion believed from his experience dealing with Griffin that Griffin had enough money to purchase the five kilograms.

Collins then put McMillion in touch with Collins's "Texas supplier" by means of a three-way telephone call on July 13, 2004. Collins's "Texas supplier" was really Thompson. Thompson reached an agreement with McMillion to provide five kilograms of cocaine to McMillion at a price of $18,000 per kilogram. The two agreed to meet.

McMillion later went to Griffin's house near the airport off Donelson Pike in Nashville, Tennessee. There he found Griffin with Charles Hassell and Travon Gardner. McMillion had previously seen Gardner at Griffin's house. Griffin questioned McMillion about whether McMillion could trust the people who were selling the cocaine. McMillion responded that he would check the cocaine. He borrowed digital scales from Griffin to do so.

On July 15, 2004, McMillion met with Collins and Thompson at a Waffle House restaurant in Mt. Juliet, Tennessee. McMillion said he wanted to get four and a half ounces of the cocaine to test. Thompson refused and indicated that he was there to talk and not to do a transaction. However, to show that he was a genuine supplier, Thompson took McMillion to another location where he showed McMillion a duffle bag containing five tape-wrapped kilograms of cocaine. The duffle bag was in the back seat of a red Chevy truck. Thompson had borrowed the five kilograms of cocaine from a drug task force from Shelby County, Tennessee.

After seeing the cocaine, McMillion returned to Griffin's house. When he arrived, Griffin, Hassell, and Gardner were in the kitchen where they all talked about the proposed drug deal. McMillion reported that he had seen the cocaine but had not been able to get a sample. At Griffin's suggestion, McMillion, Hassell, and Gardner left Griffin's house in Griffin's truck to try to find the red Chevy truck that contained the five kilograms of cocaine. The three planned to steal the truck and its contents. Gardner took along an Interdynamic Model KG-99 handgun, a nine-millimeter weapon commonly refereed to as a "Tek-9."

At some point while McMillion, Hassell, and Gardner were driving around looking for the red Chevy truck, they stopped to purchase gas for their vehicle. When McMillion went to pay for the gas, Gardner told him to purchase gloves and tape. McMillion bought a pair of gloves and some gray duct tape and gave them to Gardner. The three continued their search for the truck.

While they were driving around looking for the truck, the three men discussed what they would do if they found the truck. They planned to sit and wait until someone exited the truck. At that point, they would steal the truck at gunpoint. They planned for Gardner to drive the truck back to Griffin's house. However, when the three men could not find the truck, they returned to Griffin's house. Later that day, McMillion had a telephone conversation with Collins wherein McMillion told Collins that he still wanted the five kilograms and would have to stop and pick up the money.

McMillion then went to Griffin's house. Griffin first said that he might go ahead and purchase the cocaine with his money, but he then said that he had come up with another plan. On Griffin's instructions, Hassell and Gardner took out magazines and cut them up into pieces with the dimensions of dollar bills. They made nine stacks of the cut-up magazines with a one-hundred-dollar bill on top of each stack so that each stack appeared to be of one-hundred-dollar bills. Griffin put the nine stacks into a plastic bag, sealed the bag, and wrote "90k" on the bag. They planned to use the bag of money and magazine clippings in exchange for the cocaine.

McMillion, Hassell, and Gardner then left Griffin's house. Hassell brought the bag of money and Gardner brought two weapons, a Fabrique Nationale nine-millimeter pistol (the "Fabrique Nationale") and the Tek-9. McMillion told Gardner to take the guns back into the house. Gardner went into the house and returned with the guns. Gardner indicated that Griffin had said that the guns had to be taken along. McMillion, Hassell, and Gardner then left in McMillion's car. McMillion was driving, Hassell was in the front passenger seat along with the bag of money and magazine clippings, and Gardner was in the back seat behind Hassell.

McMillion, Hassell, and Gardner next met with Collins. Collins stood outside the car while McMillion showed him the bag of "money." Collins then got into the back seat of McMillion's car behind McMillion and next to Gardner. When he was sitting in the back seat next to Gardner, Collins noticed that Gardner had something pulled up next to him. It was covered up with clothing and Collins thought it was a gun.

Collins handed his phone to McMillion so McMillion could talk to Thompson. Thompson told McMillion that the deal would take place at a motel up the highway. Collins exited McMillion's car and McMillion, Hassell, and Gardner followed Collins to the motel. At this point, McMillion heard a noise from the area where Gardner was sitting that sounded like a bullet being loaded in the chamber of a gun. McMillion warned Gardner to be sure to put the gun on safety. As McMillion, Hassell, and Gardner drove up the highway following Collins, they discussed a new plan to obtain the cocaine. The plan they discussed was for McMillion to enter the motel room unarmed and make sure the people there had no weapons. Hassell and Gardner would then come in with weapons drawn and steal the drugs. They also planned to tape up Thompson and Collins.

When they arrived at the motel, McMillion entered the motel room unarmed and Hassell and Gardner remained in McMillion's car. When inside, McMillion became suspicious of a door to an adjoining room that was ajar. When he opened this door, he was arrested by waiting officers and the signal was given to arrest the two men in McMillion's car. Officers then surrounded the car but could not see inside because of the car's tinted windows. Once the car doors were opened, Hassell was found in the front passenger seat and Gardner was in the back seat behind Hassell.

The officers found the two guns under the front passenger seat. One, the Tek-9, was toward the front and positioned so that it was within reach of the passenger in the front seat. The other gun, the Fabrique Nationale, was positioned so that it was within reach of the passenger in the rear seat. Both guns were manufactured outside the state of Tennessee and loaded with ammunition. Each had a round in the chamber. No fingerprints were found on either weapon. One of the weapons was registered, but not to Gardner. A body search of Gardner revealed a pair of brown gloves and a new roll of duct tape.

On August 25, 2004, a federal grand jury in the Middle District of Tennessee returned a five-count indictment charging Gardner, McMillion, and Hassell with several offenses. All...