U.S. v. Hastings

• Decision Date: 14 January 1998
• Docket Number: 94-5756,94-5841,Nos. 94-5670,95-5078,s. 94-5670
• Citation: 134 F.3d 235
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ervis Lamont HASTINGS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mitchell Ivan BOLDER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Vivian Mae RENFRO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Michael PHILLIPS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 235

134 F.3d 235

UNITED STATES of America, Plaintiff-Appellee, v. Ervis Lamont HASTINGS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Mitchell Ivan BOLDER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Vivian Mae RENFRO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James Michael PHILLIPS, Defendant-Appellant.

Nos. 94-5670, 94-5756, 94-5841, 95-5078.

United States Court of Appeals Fourth Circuit.

Argued Oct. 2, 1997.

Decided Jan. 14, 1998.

ARGUED: John Stuart Bruce, Deputy Federal Public Defender, Greensboro, North Carolina, for Appellant Phillips; Theofanis Xenophon Nixon, Goodman, Carr, Nixon, Laughrun & Levine, Charlotte, North Carolina, for Appellant Bolder; Edward Anthony Fiorella, Jr., Harkey, Lambeth, Nystrom & Fiorella, Charlotte, North Carolina, for Appellant Hastings; Rodney Shelton Toth, Charlotte, North Carolina, for Appellant Renfro. Robert James Conrad, Jr., Assistant United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF: Mark T. Calloway, United States Attorney, Charlotte, North Carolina, for Appellee.

Before MURNAGHAN and WILKINS, Circuit Judges, and HERLONG, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part and dismissed in part by published opinion. Judge WILKINS wrote the opinion, in which Judge MURNAGHAN and Judge HERLONG joined.

OPINION

WILKINS, Circuit Judge:

James Michael Phillips appeals his convictions and sentence for using or carrying a firearm during and in relation to a drug trafficking offense, see 18 U.S.C.A. § 924(c)(1) (West Supp.1997); conspiracy to possess with the intent to distribute cocaine and cocaine base, see 21 U.S.C.A. § 846 (West Supp.1997); and possession with the intent to distribute cocaine and cocaine base, see 21 U.S.C.A. § 841(a)(1) (West 1981). ¹ We address at length only Phillips' assertion that his conviction for using or carrying a firearm during and in relation to a drug trafficking offense must be reversed in light of the subsequent decision of the Supreme Court in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Because we conclude that Phillips cannot meet the strictures of plain-error review of his claim that the district court erroneously instructed the jury regarding the meaning of the term "use" under § 924(c)(1), and because his remaining challenges lack merit, we affirm.

I.

From 1992 until his arrest in February 1994, Phillips participated in a large-scale drug distribution ring in Charlotte, North Carolina. Phillips received quantities of cocaine base from the leader of the operation, repackaged the drugs into single-dosage units, and sold them with the assistance of Jerald Westberry and others.

In late January 1994, undercover government agents arranged to purchase a quantity of cocaine base from Phillips. On February 2, the date of the proposed sale, Phillips traveled to a designated location with Leigh Tucker and Westberry; Tucker drove her automobile, Phillips rode in the front passenger seat, and Westberry sat in the back. Before departing, Phillips retrieved a pistol from an upstairs closet in his apartment and loaded the weapon with ammunition stored in the kitchen. He then placed the firearm in an interior pocket of his coat and walked to Tucker's vehicle, where he stored the pistol in the console to his left, within easy reach.

Phillips, Tucker, and Westberry met the "buyers" in a grocery store parking lot. The parties agreed to consummate the sale at another location and proceeded toward that destination. Before they arrived, however, law enforcement officers signaled Tucker to stop. As she did so, Phillips removed the firearm from the console and handed it to Westberry, who unsuccessfully attempted to conceal it. All of the occupants of the vehicle were arrested. Phillips' subsequent conviction for using or carrying a firearm during and in relation to a drug trafficking offense was based upon this incident.

II.

Phillips argues that his conviction for using or carrying a firearm during and in relation to a drug trafficking offense, see 18 U.S.C.A. § 924(c)(1), must be reversed because the evidence is insufficient to support it and because the district court erroneously instructed the jury regarding the meaning of the term "use" under the statute. Phillips bases these contentions on the decision of the Supreme Court in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In Bailey, the Court held that in order to obtain a conviction under § 924(c)(1) for using a firearm during and in relation to a drug trafficking offense, the Government must establish that the defendant actively employed the weapon by, e.g., "brandishing, displaying, bartering, striking with, [or] ... firing or attempting to fire" it. Id. at 148, 116 S.Ct. at 508. Although we agree with Phillips that the evidence, when considered in light of Bailey, is insufficient to support a conviction for using a firearm and that the district court gave an erroneous instruction regarding the meaning of "use," we nevertheless conclude that affirmance of the conviction is appropriate.

A.

Phillips first maintains that the evidence is insufficient to support a finding that he "used" a firearm within the meaning of § 924(c)(1). ² In considering this argument, we must determine whether there is substantial evidence, viewed in the light most favorable to the Government, to support the verdict. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469-70, 86 L.Ed. 680 (1942).

Here, the evidence establishes that Phillips, in preparation for a drug transaction, retrieved a firearm from a closet, loaded it, carried it to Tucker's vehicle, and stored it within easy reach where it remained throughout the meeting with the purported purchasers. The Government concedes that this evidence is insufficient to support a conviction for using a firearm in the post-Bailey sense of that term. And, although we are not bound by the Government's concession, see Sibron v. New York, 392 U.S. 40, 58, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917 (1968), we agree that the evidence presented does not allow a rational jury to conclude that Phillips actively employed the weapon during and in relation to a drug trafficking offense. Nevertheless, we reject Phillips' sufficiency challenge because the evidence, although inadequate to support a conviction for using a firearm, is more than sufficient to warrant a conviction on the basis that Phillips carried a firearm. See United States v. Mitchell, 104 F.3d 649, 652-54 (4th Cir.1997) (holding evidence that defendant "knowingly possessed and transported [a] firearm in his automobile" adequate to support a finding that defendant "carried" the firearm for purposes of § 924(c)(1)); see also Griffin v. United States, 502 U.S. 46, 56-60, 112 S.Ct. 466, 472-75, 116 L.Ed.2d 371 (1991) (explaining that when a case is submitted to a jury on two theories and the jury returns a general verdict of guilty, affirmance is appropriate so long as the evidence is sufficient to support a conviction on either theory).

B.

Phillips next argues that his conviction is invalid because the district court improperly instructed the jury regarding the meaning of the term "use" as that term is employed in § 924(c)(1). At the close of trial, the district court instructed the jury that it must convict Phillips of the § 924(c)(1) charge if it found that he had "used or carried the firearm." J.A. 549. The district court then elaborated on the meaning of the term "use":

A firearm can be used in relation to a felony involving drug trafficking if the person possessing it intended to use the gun as a contingency arose, for example, to protect himself or make escape possible. It is not necessary that the firearm actually be used, displayed or in the defendant's actual possession. It is sufficient if the possessor of the firearm intended to have it available for use during the commission of a drug crime.

You may also find that the defendant used a firearm in violation of 924(c)(1) if you find that the firearm was an integral part in a criminal undertaking and its availability increased the likelihood that the criminal undertaking would succeed, even though the defendant did not brandish, display or discharge the firearm.

Id. at 549-50. The district court did not instruct the jury regarding the meaning of the term "carry." Phillips maintains that the instruction given by the district court regarding the definition of "use" was erroneous in light of Bailey and that the error mandates reversal of his conviction.

Because Phillips failed to object to the instruction given by the district court, our review is for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993). In order to establish our authority to notice an error not preserved by a timely objection, Phillips must show that an error occurred, that the error was plain, and that the error affected his substantial rights. See Olano, 507 U.S. at 732, 113 S.Ct. at 1776-77; United States v. Cedelle, 89 F.3d 181, 184 (4th Cir.1996). Even if Phillips can satisfy these requirements, correction of the error remains within our sound discretion, which we "should not exercise ... unless the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " Olano, 507 U.S. at 732, 113 S.Ct. at 1776 (second alteration in original) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985)); see United States v. David, 83 F.3d 638, 641 (4th Cir.1996).

1.

In reviewing for plain error, our initial inquiry is whether an error occurred. The Bailey Court held that in order to obtain a conviction under § 924(c)(1) for "using" a firearm during and in relation to a drug trafficking crime, the Government must...