U.S. v. Randall

• Decision Date: 05 April 1999
• Docket Number: Nos. 96-4308,96-4396,s. 96-4308
• Citation: 171 F.3d 195
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerome Montreal RANDALL, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jeron Rondell Randall, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 195

171 F.3d 195

UNITED STATES of America, Plaintiff-Appellee, v. Gerome Montreal RANDALL, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Jeron Rondell Randall, Defendant-Appellant.

Nos. 96-4308, 96-4396.

United States Court of Appeals Fourth Circuit.

Argued Oct. 30, 1998.

Decided April 5, 1999.

ARGUED: George Alan DuBois, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant Gerome Randall; Richard Luby Cannon, III, Greenville, North Carolina, for Appellant Jeron Randall. J. Frank Bradsher, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: William Arthur Webb, Federal Public Defender, Raleigh, North Carolina, for Appellant Gerome Randall. Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Before MURNAGHAN, HAMILTON, and MICHAEL, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Hamilton wrote the opinion, in which Judge Murnaghan and Judge Michael joined.

OPINION

HAMILTON, Circuit Judge:

Section 924(c), Title 18 of the United States Code, prohibits a person from using or carrying a firearm "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 ...." The principal issue in this appeal is whether the defendants' convictions and sentences, under Count Six of the indictment, for using and carrying "a firearm, Model 17, 9 millimeter Glock handgun with a laser sight, [on or about October 11, 1995], during and in relation to a drug trafficking crime, ... specifically, distribution of a narcotic controlled substance," inviolation of 18 U.S.C. § 924(c), and aiding and abetting such, in violation of 18 U.S.C. § 2, (J.A. 26) (emphasis added), must be reversed, because the government, through its presentation of evidence and its closing argument, and the district court, through its jury instructions, constructively amended Count Six of the indictment by allowing proof of an alternative § 924(c) predicate offense not charged in the indictment, specifically, possession with intent to distribute drugs. Because the predicate crime of violence or drug trafficking crime charged in the indictment is an essential element of a § 924(c) offense, and because the defendants' October 11, 1995 § 924(c) convictions under Count Six of the indictment rest upon proof of a different predicate offense--possession with intent to distribute--than the one specified in the indictment--distribution, we reverse Gerome Randall (Gerome) and his identical twin brother Jeron Randall's (Jeron) October 11, 1995 § 924(c) convictions under Count Six, vacate their respective sentences under Count Six, and remand for resentencing. This appeal also concerns a challenge by Jeron to the amount of cocaine base (crack) attributed to him by the district court for the purposes of sentencing. Finding this contention to be without merit, we affirm the district court's determination.

I

Detective Jeff Robinson, while working as an undercover agent investigating drug trafficking for the Pitt County, North Carolina, Sheriff's Department Narcotics Division, met Gerome and discovered that Gerome and Jeron were involved in drug trafficking in Greenville, North Carolina, and Washington, North Carolina. ¹ Specifically, in the fall of 1995, Detective Robinson met low-level drug dealer Derrick Rogers, who introduced Detective Robinson to drug dealer Toby Daniels, a friend of Gerome and Jeron's. Detective Robinson told Daniels that he was interested in purchasing large amounts of crack. On September 7, 1995, Daniels and Rogers took Detective Robinson to Gerome's apartment in Greenville, so that Daniels could arrange for Detective Robinson to purchase crack from one of Daniels' suppliers. While Daniels, Rogers, and Detective Robinson were waiting for the drug deal to consummate, Detective Robinson met Gerome. The deal between Daniels' supplier and Detective Robinson did not consummate. Gerome, however, gave Detective Robinson his phone number and told Detective Robinson to call him if he wanted to purchase crack.

Later on September 7, 1995, Detective Robinson called Gerome and went to Gerome's apartment to purchase crack. Detective Robinson followed Gerome to a parking lot, where Gerome met with one of his suppliers. Thereafter, Gerome sold Detective Robinson approximately thirty-five grams of crack, and during the sale, Gerome pointed a nine millimeter Glock firearm at Detective Robinson. Over the next week, Detective Robinson contacted Gerome several times in an attempt to purchase more crack. On September 13, 1995, Gerome sold Detective Robinson approximately eighty-four grams of crack.

The next day, Detective Robinson paged Gerome in an attempt to arrange another crack purchase. Jeron responded to the page, but Detective Robinson thought Gerome had responded to the page. Detective Robinson indicated that he might want to purchase some crack, and the person he later discovered was Jeron told him to page him if he did want to purchase crack.

Gerome called Detective Robinson the next day and, during their conversation, Detective Robinson discovered that he had actually been speaking with Jeron the previous day. Detective Robinson was then convinced that Jeron was also dealing crack and, therefore, Detective Robinson attempted to purchase crack at the barbershop, where Gerome and Jeron worked. Detective Robinson decided to stop by the barbershop during the day without a prearranged transaction, so that he might meet Jeron and identify Gerome and Jeron's drug suppliers.

Thus, on September 19, 1995, Detective Robinson called Gerome and told him he would stop by the barbershop in Washington. Upon arriving at the barbershop, Detective Robinson attempted to purchase two ounces of crack from Gerome, but Gerome indicated that he would not be able to meet with his supplier until later that evening. Because Detective Robinson told Gerome that he could not wait until later that evening to purchase crack, Gerome walked across the street and spoke with a street dealer about supplying him with some crack for Detective Robinson. While Detective Robinson and Gerome waited for the street dealer to go for the crack, Detective Robinson witnessed Jeron give Gerome a paper towel with eight or nine crackrocks in it and then witnessed someone off the street purchase one of the crack rocks from Gerome. Thereafter, the street dealer returned and gave Gerome the crack, which Gerome then sold to Detective Robinson. Jeron accompanied Detective Robinson to Detective Robinson's car to weigh the crack, which weighed approximately fifty-four grams. Detective Robinson, at Gerome's instruction, paid Jeron for the crack.

Detective Robinson obtained arrest warrants for Gerome and Jeron and planned to arrest them after purchasing more crack and a firearm. On October 9, 1995, Detective Robinson called Gerome and attempted to arrange a purchase of four or five ounces of crack and a firearm. On October 10, 1995, Detective Robinson called Gerome twice, and during one of their conversations, Gerome told Detective Robinson that he was confident that he could supply Detective Robinson with the crack and a firearm the next day.

On the morning of October 11, 1995, Daniels rode with Gerome and Jeron to the barbershop in Jeron's car. After they arrived at the barbershop, the three men got out of the car, and Jeron instructed Daniels to push some plastic bags containing marijuana and crack under the driver's seat.

When Detective Robinson arrived at the barbershop later that morning, Gerome indicated that he did not have the firearm Detective Robinson wanted to purchase because his supplier had not yet paged him. Detective Robinson then asked Gerome if he could supply him with at least one ounce of crack, and Gerome indicated that he could. Gerome asked a street dealer, Cortez Branch, if he would sell Detective Robinson an ounce of crack, and Branch agreed to sell that amount to Detective Robinson for $1,200. A few minutes later, Iris Tucker, an associate of Branch's, gave, i.e., distributed, an ounce of crack to Detective Robinson. Because Detective Robinson knew he was about to arrest Gerome, Detective Robinson returned the crack to Tucker without purchasing it. Detective Robinson told Tucker that he needed to go around the block to get the money.

Detective Robinson went to his vehicle and advised the surveillance team to serve the arrest warrants on Gerome and Jeron. The surveillance team arrived and part of the team went inside the barbershop and arrested Gerome. A member of the surveillance team arrested Jeron outside the barbershop. An officer assisted the surveillance team member in the search of Jeron's car. Under the passenger's seat,the officers discovered a nine millimeter, loaded Glock firearm, which was later identified as the firearm that Gerome had pointed at Detective Robinson during the September 7, 1995 drug sale. Under the driver's seat, the officers found twenty-nine plastic bags, some containing small amounts of marijuana and others containing crack. In total, the officers recovered 46.9 grams of marijuana and 1.3 grams of crack from the bags they found under the driver's seat.

After the arrest, the officers advised Gerome and Jeron of their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Gerome and Jeron signed waiver-of-rights forms. Gerome then admitted that he had sold crack to Detective Robinson and that the nine millimeter Glock firearm found inside Jeron's car at the time of the arrest belonged to him (Gerome). Jeron acknowledged that he had sold crack to Detective Robinson on one occasion, had sold crack the previous year five or six times, but had only sold crack ten times in his lifetime.

Thereafter, on November 2, 1995 in a superseding...