U.S. v. Garrett

Decision Date31 May 1990
Docket NumberNo. 89-1860,89-1860
Citation903 F.2d 1105
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James GARRETT, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Thomas M. Durkin, Jeanne M. Witherspoon, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

John T. Theis, Chicago, Ill., for defendant-appellant.

Before WOOD, Jr., RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

James Garrett appeals his conviction for violations of 18 U.S.C. Sec. 922(g)(1), 18 U.S.C. Sec. 924(c)(1), and 21 U.S.C. Sec. 841(a)(1). For the following reasons, we affirm.

A. Procedural Posture

James Garrett was charged in a three count indictment with the following offenses: (1) being a convicted felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1); (2) using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c)(1); and (3) possessing with intent to distribute approximately 19 grams of a substance containing cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). Mr. Garrett was tried before a jury and convicted on all three counts.

The district court sentenced Mr. Garrett to a twenty year term of imprisonment. The total term of twenty years consisted of fifteen years on count one, five years on count two, to run consecutively to the term on count one, and five years on count three, to run concurrently with the term on count one. 712 F.Supp. 1327. Mr. Garrett then filed a timely notice of appeal. On appeal, he raises three contentions: (1) that the evidence was not sufficient to support his conviction; (2) that the district court's imposition of consecutive sentences for violations of 18 U.S.C. Secs. 922(g) and 924(c) was a violation of the double jeopardy clause of the fifth amendment of the Constitution of the United States; and (3) that the trial court erred in sentencing him without first ordering an examination or hearing to determine his competency to be sentenced.

B. Facts

On April 8, 1988 Chicago police officers Carl Loeffler and Rick Galbreth were on duty as part of a tactical unit assigned to "prostitution suppression" in the eleventh district. At approximately 11:45 p.m., in the vicinity of the 2600 block of West Madison Street, the officers were engaged in surveillance of a woman whom they believed to be a prostitute. From their unmarked squad car, the officers observed this woman as she attempted to "flag down" cars driven by lone male occupants. As the officers continued their surveillance of the woman, they observed a man, later identified as the defendant, emerge from a nearby alley on foot and engage the woman in conversation. After conversing briefly, Mr. Garrett and the woman walked back into the alley from where Mr. Garrett had come.

The officers, with their headlights off, drove their vehicle northbound into the alley where they had seen the woman and Mr. Garrett go. As the officers entered the alley, they saw that Mr. Garrett and the woman were attempting to enter an Oldsmobile station wagon that was facing southbound in the alley. The woman was standing on the passenger side of the car and Mr. Garrett, who was standing on the driver's side, appeared to have unlocked and opened the driver's side door. When Mr. Garrett and the woman noticed the officers approaching, the officers turned on the headlights of their vehicle. Mr. Garrett, who was then observed to be holding a key ring with a large, shiny metal medallion, closed the door of the vehicle he had just opened. The officers then exited their car, approached Mr. Garrett and the woman, brought them to the front of the cars, and conducted a patdown search for weapons. Officer Loeffler then took his flashlight and walked over to the driver's side of the vehicle Mr. Garrett had attempted to enter. He shined his light through the window on the driver's side. On the floor of the car, directly underneath the steering wheel, Officer Loeffler observed a brown paper bag that was torn open along the side. Through this tear in the bag the officer observed a number of "snow seals"--"small, square, white pieces of paper with predetermined folds on them that are used to package narcotics." 1 Upon seeing Neither the handgun nor the automobile itself was registered to Mr. Garrett. The government produced evidence which showed that the gun was purchased by LeAndrew Taylor in Greenwood, Mississippi. Taylor testified that he had entered a pawn shop in Greenwood with a friend, Ernest Mays, and another person known as the "Rev." Taylor further testified that he purchased the guns for his friend Mays, who gave them to the "Rev." Officer Loeffler had testified earlier that, when he had asked Mr. Garrett for identification, Mr. Garrett replied that he was a reverend and was known on the street as the "Rev." Mr. Taylor, however, did not identify Mr. Garrett in court as the "Rev."

the snow seals, Officer Loeffler informed Officer Galbreth, who also observed through the window the torn bag and the snow seals. As Officer Galbreth was handcuffing Mr. Garrett, Officer Loeffler returned to the car, opened the door, and lifted up the paper bag. Underneath the bag on the floor the officer saw a .25 caliber, semi-automatic pistol. The officer checked the gun and determined that it was fully loaded, with one round in the chamber. After Mr. Garrett was placed under arrest, the officers conducted a more thorough search of the vehicle, but recovered no further weapons or contraband. As Mr. Garrett was being handcuffed, he dropped a set of two keys on a ring with a large metal medallion. The officers discovered that the two keys fit the ignition and door of the vehicle in which the drugs and weapon were found.

The 1975 Oldsmobile station wagon was registered in the name of Anthony Mugnolo, of Cicero, Illinois. Mugnolo testified that in 1988 he sold the car to two people: a tall, heavy, black male and a somewhat heavy female. Mugnolo further testified that the man paid the $500 purchase price in cash. Mugnolo then gave the man a signed title and keys to the car, and began to remove his license plates from the car when the purchaser requested that Mugnolo leave the tags on so that the purchaser would not be arrested for driving without a license plate. Upon the purchaser's promise to return the tags later that day, Mugnolo agreed to this arrangement. The purchaser, however, never returned with Mugnolo's tags. At trial, Mugnolo never was asked to make a positive identification of Mr. Garrett as the purchaser of the Oldsmobile.

The "snow seals" found in the Oldsmobile were thirty-eight individual packets, each of which contained cocaine. The combined weight of the substance found in the packets was approximately 19 grams of a mixture containing 3.5 grams of cocaine.

The parties stipulated that, prior to April 8, 1988, the date of the incident in question, Mr. Garrett was a convicted felon. The parties also stipulated that, prior to April 8, 1988, the semi-automatic weapon found in the Oldsmobile had traveled in interstate commerce.

After the government rested its case, the defendant presented no evidence and also rested its case. The jury returned a verdict of guilty against the defendant on all three counts in the indictment. Prior to sentencing, the defendant moved for an examination to determine the defendant's mental fitness for sentencing. The motion was based on an unsworn statement from the defendant's probation officer regarding her observations of the defendant during the presentence investigation and her discovery that the defendant had been hospitalized for psychiatric treatment on three previous occasions. The district court denied this motion, without prejudice, as being premature. The court noted that it had not observed any evidence of Mr. Garrett's psychological difficulties during trial, and that it did not find a mere conversation between the probation officer and defense counsel established the need for a presentence psychological examination. The court then declined to take any further action unless the probation officer addressed The district court sentenced Mr. Garrett to a total term of twenty years imprisonment. The total term of twenty years was apportioned among the individual counts as follows: fifteen years on count one, the violation of 18 U.S.C. Sec. 922(g)(1); five years on count two, the violation of 18 U.S.C. Sec. 924(c)(1), to be served consecutively to the term on count one; and five years on count three, the violation of 21 U.S.C. Sec. 841(a)(1), to run concurrently with the term imposed on count one. This twenty year sentence represented the minimum statutory sentence available, 2 but constituted a departure from the Federal Sentencing Guidelines, which would have imposed a minimum term of thirty-five years imprisonment. 3

the need for such an examination in the presentence report.

A. Sufficiency of the Evidence

Mr. Garrett argues on appeal that the evidence was insufficient to support the conclusion that he possessed either the handgun or the cocaine that formed the basis of his conviction. On a challenge to the sufficiency of the evidence, " '[t]he test is whether ... "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' " United States v. Duncan, 896 F.2d 271, 277 (7th Cir.1990) (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)), cert. denied, 474 U.S. 1085, 106 S.Ct. 860, 88 L.Ed.2d 899 (1986)). Moreover, we view all the evidence and the inferences reasonably drawn from that evidence in favor of the government. Id.

1. The Firearms Convictions

We first consider Mr. Garrett's contention that the evidence did not prove possession of the firearm necessary to support his convictions under 18...

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