U.S. v. Simms, s. 93-2556

• Citation: 18 F.3d 588
• Decision Date: 10 March 1994
• Docket Number: 93-2623,Nos. 93-2556,s. 93-2556
• Parties: UNITED STATES of America, Appellee, v. Roosevelt SIMMS, III, Appellant. UNITED STATES of America, Appellee, v. Edwin Dwane RICKETTS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 588

18 F.3d 588

UNITED STATES of America, Appellee, v. Roosevelt SIMMS, III, Appellant.

UNITED STATES of America, Appellee, v. Edwin Dwane RICKETTS, Appellant.

Nos. 93-2556, 93-2623.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 13, 1994.

Decided March 10, 1994.

Before BOWMAN and WOLLMAN, Circuit Judges and ALSOP, ^* Senior District Judge.

ALSOP, Senior District Judge.

Roosevelt Simms and Edwin Ricketts were convicted by a jury of possession with intent to distribute more than 50 grams of a substance containing cocaine base in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(A)(iii). Simms was also convicted of using a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c). The district court ¹ sentenced Simms to 264 months on the possession charge and 60 months on the gun charge, to be served consecutively. Ricketts was sentenced to 292 months. Simms and Ricketts appeal their convictions and their sentences. We affirm.

I. BACKGROUND

On September 15, 1992, law enforcement officers from Gardenia, California intercepted a United Parcel Service package addressed to "Jesse Brock, 1915 East Warne, St. Louis, Missouri." The package was opened pursuant to a state court search warrant, and, inside the package, the officers found over 500 grams of cocaine base or "crack" cocaine. The officers then contacted Detective Timothy Lachenicht of the St. Louis Police Department, advised him of their findings, and forwarded the package to him for the purpose of performing a controlled delivery.

Detective Lachenicht obtained a state court search warrant for 1915 East Warne and an order permitting him to place an electronic tracking device inside the package. On September 17, Detective Lachenicht received the package, removed all of its contents except for two one-ounce bags of cocaine base, inserted the electronic tracking device, and resealed the package for delivery.

On that same day, Detective Lachenicht disguised himself as a UPS delivery man and drove to 1915 East Warne. While leaving the delivery truck, Detective Lachenicht saw Ray Calhoun walking or running toward the house and shouting that the package had arrived. When he got to the porch, Detective Lachenicht announced that he had "a package for Jesse Brook." At trial, Detective Lachenicht testified that Ricketts said, "I'll take that," from inside the house. Ricketts then came to the front door, said, "I'll take that" again, and signed for the package with the name "Wortham." Ricketts testified that it was his sister who accepted the package and that he signed the name Wortham because this was his sister's last name.

Detective Lachenicht testified that, while he (Lachenicht) was still on the front porch, Ricketts turned to Calhoun and said, "Go get Roosevelt. Tell him his package is here." Ricketts denied making this statement and denied even knowing Simms at that time. Ricketts testified that the house in which his family lived was owned by a family named Brock, and he assumed that this package, which was addressed to "Jesse Brock," was theirs. He further testified that he told Calhoun to contact the "Hygrades," who lived at 1926 East Warne, because the Hygrades are related to the Brocks.

Calhoun then went across the street to 1926 East Warne, while Ricketts remained on the porch of 1915 East Warne. Detective Lachenicht returned to his vehicle, left East Warne, and went around the block to the rear of 1926 East Warne.

From this point on, the surveillance was conducted by United States Postal Inspector Dennis Hearne. Inspector Hearne testified that he saw Calhoun return to 1915 East Warne, obtain the package from Ricketts, and take it across the street to Simms, who then went inside 1926 East Warne. At trial, Ricketts denied giving the package to Calhoun. Shortly after Simms took the package inside 1926 East Warne, the electronic tracking device activated, indicating that the package had been opened. The police then converged on 1926 East Warne.

Detectives Lachenicht and Hicks, who were positioned behind 1926 East Warne, saw Simms attempting to leave the rear of the building. When Simms was ordered to stop, he turned and ran back into the building with the package. The two detectives then pursued Simms into the building and up a flight of stairs. Halfway up the stairs, Simms stopped on a landing and threw the package out a window.

Simms then continued up the stairs to the second floor, where he was apprehended and arrested in a middle bedroom. Detective Lachenicht testified that, in the bedroom, he found a loaded .25 caliber automatic handgun in a holster on top of a dresser. Next to the handgun was an electronic paging device from Los Angeles, California. An identification card seized from Simms listed a Los Angeles address. In a subsequent search, the police also found two suitcases with the name "R. Simms" on them in the bedroom where he was arrested.

Ricketts and Calhoun were also arrested. Detective Lachenicht testified that Ricketts waived his Miranda rights following his arrest and gave an oral statement. In this statement, Ricketts said that an individual he met in a bar gave him $100 in cash and advised him that he could obtain more by cooperating. A women he knew to be a crack addict then approached him and asked him to wait for the package in exchange for another $200. Ricketts waited for the package on September 16, but the package did not arrive. The same woman then reapproached him and told him to wait again for the package on September 17. The woman gave Ricketts a piece of crack cocaine for waiting the second time. At trial, Ricketts denied making this post-arrest statement.

At the close of the government's case and at the close of all the evidence, the district court overruled Simms and Ricketts's motions for judgment of acquittal. On March 5, 1993, the jury found both Simms and Ricketts guilty of possessing cocaine base with the intent to distribute (Count 1). The jury also found Simms guilty of using a firearm during and in relation to a drug trafficking crime (Count 2).

On May 21, 1993, the district court sentenced Ricketts to 292 months, based upon a total offense level of 36, a criminal history category of V, and a guideline range of 292 to 365 months. On June 2, 1993, Simms was sentenced to 264 months on Count 1 and 60 months on Count 2, to be served consecutively. This sentence was based upon a total offense level of 36, a criminal history category of III, a guideline range of 235 to 293 months on Count 1, and a mandatory, consecutive five-year-term of imprisonment on Count 2.

On appeal, Simms argues that there was insufficient evidence to convict him on the firearm charge, that the "reasonable doubt" jury instruction given by the district court was erroneous, and that he was denied effective assistance of counsel. Ricketts argues that there was insufficient evidence to convict him on the possession charge. Both Simms and Ricketts raise equal protection and due process challenges to the guideline sentences for cocaine base.

II. DISCUSSION

A. Roosevelt Simms

1. Simms first argues that there was insufficient evidence to convict him of using a firearm in relation to a drug trafficking crime and that the district court erred by denying his motion for judgment of acquittal. In reviewing Simms's challenge to the sufficiency of the evidence, "we must affirm the conviction if, after viewing the evidence in the light most favorable to the government and giving the government the benefit of all reasonable inferences, we conclude that a reasonable jury could have found [Simms] guilty beyond a reasonable doubt." United States v. Mejia, 8 F.3d 3, 5 (8th Cir.1993) (per curiam).

Section 924(c)(1) of Title 18 provides that "Whoever, during and in relation to any crime of ... drug trafficking ... uses or carries a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime, be sentenced to imprisonment for five years...." The phrase "in relation to" has an "expansive" meaning. Smith v. United States, --- U.S. ----, ----, 113 S.Ct. 2050, 2058, 124 L.Ed.2d 138 (1993). This phrase "clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime," and requires that the firearm " 'facilitat[e], or ha[ve] the potential of facilitating,' the drug trafficking offense." Id. at ----, 113 S.Ct. at 2059 (alteration in original) (quoting United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985)).

Section 924(c)(1) requires the prosecution to prove two separate elements. First, "the prosecution must demonstrate that the defendant 'use[d] or carrie[d] a firearm.' Second, it must prove that the use or carrying was 'during and in relation to' a drug trafficking crime." Id. at ----, 113 S.Ct. at 2053 (alteration in original) (quoting 18 U.S.C. Sec. 924(c)(1)). The "mere possession" of a firearm is insufficient to support a conviction under this section. United States v. Lyman, 892 F.2d 751, 753 (8th Cir.), cert. denied, 498 U.S. 810, 111 S.Ct. 45, 112 L.Ed.2d 21 (1990). However, "18 U.S.C. Sec. 924(c)(1) reaches the possession of a firearm which in any manner facilitates the execution of a felony involving drug trafficking." United States v. Williams, 982 F.2d 1209, 1214 (8th Cir.1992). "The government need not show that [the defendant] was in actual possession of the firearm, or that [the defendant] brandished or discharged it. The jury need only find a 'sufficient nexus' between the gun and the drug trafficking crime." United States v. Watson, 953 F.2d 406, 409 (8th Cir.1992) (citations omitted). To establish this nexus, the gun need not "be located in the room where the drug transaction occurs." United States v. Horne, 4 F.3d 579, 587 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1121, 127 L.Ed.2d 2130 (1994). "[A] Sec. 924(c) conviction requires only that the weapon be present and available in the house in...