U.S. v. Sorrells

• Decision Date: 22 July 1998
• Docket Number: No. 96-40873,96-40873
• Citation: 145 F.3d 744
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David SORRELLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 744

145 F.3d 744

UNITED STATES of America, Plaintiff-Appellee, v. David SORRELLS, Defendant-Appellant.

No. 96-40873.

United States Court of Appeals Fifth Circuit.

July 22, 1998.

Julia Bowen Stern, Paula Camille Offenhauser, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Robert Louis Hutton, Memphis, TN, for Sorrells.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, DAVIS and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

A jury convicted David Sorrells ("Sorrells") of using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). We affirmed his conviction on direct appeal and on Sorrells' first motion to vacate his sentence under 28 U.S.C. § 2255. He now appeals from the district court's denial of his second § 2255 motion to vacate his § 924(c)(1) conviction. We affirm.

I

The facts in this case are relatively straightforward. Both parties agree that, viewed in the light most favorable to the verdict, the relevant facts are as follows: In 1989, Sorrells' adopted son, Mark Sorrells ("Mark"), contacted Victor Ayala ("Ayala") and asked him where he could get chemicals to manufacture methamphetamine. Mark told Ayala that he did not have money to purchase the chemicals, but that he could use a deed to his father's house as collateral. Unbeknownst to Mark, Ayala was working as a paid informant for Gene Tandy ("Tandy") of the Texas Department of Public Safety. After Ayala informed Tandy of Mark's request, Tandy told Drug Enforcement Administration ("DEA") Agent James Palestino ("Palestino") about Ayala's contact with Mark. Palestino instructed Tandy to set up a meeting with Mark.

At the meeting between Palestino and Mark, Palestino posed as an employee of a chemical store with access to the chemicals needed to make methamphetamine. Mark stated that he was low on cash, but he offered to provide the deed to Sorrells' house as collateral for the chemicals. Mark also gave Palestino a written list of the chemicals he needed and a telephone number where he could be reached. Mark said that after he manufactured the methamphetamine he would pay Palestino $2,000 and give him a pound of the finished methamphetamine. Palestino told Mark that he wanted to meet with Sorrells to assure himself that Sorrells was aware of the details of the transaction. Ayala later telephoned Sorrells and asked him if he was aware that the deed to his house was being used as collateral to purchase methamphetamine; Sorrells replied that he was.

Shortly after their first meeting, Palestino called Mark and recorded their conversation. Palestino told Mark that he was uncomfortable about the method of payment and asked to speak to Sorrells to verify that Sorrells knew the purpose for which the deed to his house was going to be used. Mark told Palestino that Sorrells knew about the plans and that there would be no problem arranging a meeting with Sorrells. The meeting with Sorrells took place on the following day at Sorrells' home. Palestino was wearing a body microphone and waited in the car while Tandy and Ayala went inside. Mark came out and showed Palestino the deed to Sorrells' house. Sorrells then came out of the house and assured the officers that they could use the deed as collateral for the chemicals. Sorrells stood by as Palestino and Mark discussed financial arrangements should something go awry with Mark's "cook." Sorrells also commented to Palestino that this was not Mark's "first time."

After the meeting, the officers decided to provide Mark with the chemicals. Ayala arranged for the parties to meet at a mall in Galveston. Ayala called Sorrells at his home and told him that he and Tandy were in town with the chemicals and were waiting for Mark at the mall. Sorrells eventually relayed the message to Mark, and Mark subsequently arrived at the mall driving a van. After they loaded the chemicals into Mark's van, Ayala and Mark drove off in the van, with Ayala wearing a body microphone. Ayala and Mark then went to a real estate office, and Mark picked up a key to a beach house that Sorrells had rented for the processing of the methamphetamine.

After taking the chemicals to the beach house, Mark began "cooking" the chemicals. Mark also sent Ayala to get a gun and a box of bullets from inside the van. Mark loaded the gun and toyed with it as he began to process the chemicals. Ayala convinced Mark to get something to eat, and when they left, Mark took the gun with him. When they returned, Mark took the gun out and told Ayala that "if anybody knocks on the door, I'm going to shoot through it, I don't play funny business." Frightened for his own safety, Ayala surreptitiously left the house in search of a police officer. He could not find an officer, and when he returned to the beach house, Mark was waiting outside with a crowbar. Mark told Ayala to get back inside the house and not to leave again. When the chemicals began to give off a strong odor, Ayala talked Mark into leaving the house to purchase gas masks from Sears. They later left the house again and the police stopped them as they returned.

The officers arrested Mark and searched the beach house, finding a functioning methamphetamine laboratory, a loaded gun, and a gas mask lying on the kitchen counter. Thereafter, the officers sent Ayala to Sorrells' home (which was approximately sixteen miles from the beach house) to speak with Sorrells. Ayala told Sorrells that the reason he left the beach house was that there was a bad odor. When he mentioned to Sorrells that the odor was strong, Sorrells stated: "I know, I know." Sorrells indicated that he expected to profit financially from the venture and that he wanted to launder the money to an island and bring it back in small amounts. Sorrells also mentioned that he paid for the rental of the beach house where Mark cooked the methamphetamine.

In reference to Mark and Sorrells' plan to conduct another drug deal with Ayala and Palestino, Sorrells told Ayala he had some information for their next deal. He wrote down the address and telephone number of a real estate agent and instructed Ayala to give it to Mark, explaining that the next deal would take place at that location. Ayala asked Sorrells if he realized that Mark had a gun with him at the beach house, and Sorrells told him "yes, I know, I know." The police arrested Sorrells at his home shortly thereafter. During the arrest, Sorrells told DEA Special Agent Dickmond Rice that he owned a gun and that he had given it to Mark. Sorrells later admitted that the gun recovered from the beach house was similar to the gun that he owned.

The government charged Sorrells in a superseding indictment, along with Mark, with conspiracy to manufacture in excess of 10 grams of methamphetamine (Count 1), with aiding and abetting an attempt to manufacture methamphetamine (Count 2), and with using and carrying a firearm in relation to a drug-trafficking offense in violation of 18 U.S.C. § 924(c)(1) (Count 4). Following a jury trial, the jury convicted Sorrells on all counts. The district court imposed a sentence of concurrent 78-month terms of incarceration on each count and a mandatory consecutive 60-month term of incarceration for the § 924(c)(1) violation. We affirmed Sorrells' conviction in an unpublished opinion, rejecting his sole claim on appeal that his conviction be reversed because the original record had been lost. See United States v. Sorrells, No. 90-2361, slip op. at 3-5, 976 F.2d 731 (5th Cir. Sept. 24, 1992). In 1993, Sorrells filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Sorrells raised a litany of issues, including a claim that there was insufficient evidence to prove that he knowingly violated § 924(c). The district court denied relief, and we affirmed in an unpublished opinion. See United States v. Sorrells, No. 93-7737, slip op. at 1, 47 F.3d 424 (5th Cir. Jan. 25, 1995).

Sorrells filed the instant § 2255 motion on April 1, 1996, challenging only his conviction on the 18 U.S.C. § 924(c)(1) charge in light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The United States responded that Sorrells' successive § 2255 motion should be denied as an abuse of the writ, and alternatively, that Sorrells' motion should be denied on the merits. The district court did not address the government's abuse of the writ argument, but denied Sorrells' § 2255 motion on the merits instead. Sorrells filed a timely notice of appeal from this decision. Sorrells subsequently filed with the district court a motion to proceed in forma pauperis on appeal. The district court denied this motion and certified that Sorrells' appeal was not taken in good faith. Sorrells filed a separate notice of appeal from this order. ¹

II

Because Sorrells filed the instant § 2255 petition before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), we consider his petition under our pre-AEDPA standards of review, ² and no certificate of appealability is necessary to vest jurisdiction in this Court. See United States v. Carter, 117 F.3d 262, 264 (5th Cir.1997); United States v. Rocha, 109 F.3d 225, 228-29 (5th Cir.1997). Sorrells challenges only his conviction for using a firearm during a drug trafficking crime in violation of § 924(c)(1), claiming that there was insufficient evidence to support his conviction under the Supreme Court's definition of "use" in Bailey.

In Bailey, the Supreme Court clarified that a conviction for "use" of a firearm under § 924(c)(1) requires the government to show "active employment of the firearm" including "brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Bailey, 516 U.S. at 148, 116 S.Ct. at 508. The Court in Bailey concluded that "a defe...