U.S. v. Timmons

• Decision Date: 26 February 2002
• Docket Number: No. 00-15795.,No. 00-16326.,00-15795.,00-16326.
• Citation: 283 F.3d 1246
• Parties: UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Clifford TIMMONS, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1246

283 F.3d 1246

UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Clifford TIMMONS, Defendant-Appellee, Cross-Appellant.

No. 00-15795.

No. 00-16326.

United States Court of Appeals, Eleventh Circuit.

February 26, 2002.

Amy Levin Weil, Williams H. Thomas, Jr., Atlanta, GA, for U.S.

Mildred Geckler Dunn, Fed. Pub. Def. Program, Atlanta, GA, for Timmons.

Appeals from the United States District Court for the Northern District of Georgia.

Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and MORENO^*, District Judge.

MORENO, District Judge:

This appeal concerns the sufficiency of the evidence at trial of two separate charges of possessing a firearm illegally, as well as a challenge to the sentence imposed pursuant to guilty pleas to drug offenses. The defendant appeals the refusal of the district court to grant a post-verdict judgment of acquittal on Count One, which charged the defendant with using and carrying a firearm on October 23, 1998 "during and in relation to" a drug trafficking crime in violation of 18 U.S.C. § 924(c). The government appeals the same district court's grant of a post-verdict judgment of acquittal on Count Two, which charged the defendant with possession of a firearm on November 12, 1999 "in furtherance of" drug trafficking in violation of another section of the same statute.

We find the evidence sufficient as to both counts. Therefore, we affirm the district court's judgment as to Count One but reverse as to Count Two and remand for sentencing on the November 12, 1999 firearm possession charge, "in furtherance of" drug trafficking. We also vacate the sentence for the underlying drug offenses because it included a weapon enhancement for the possession of the weapons that were part of the same course of conduct for which the defendant has been convicted.

I. PROCEDURAL HISTORY

On August 8, 2000 the grand jury returned a second superseding indictment, which charged Clifford Timmons with three counts of violating 18 U.S.C. § 924(c). Count One charged Timmons with using and carrying a 9mm semi-automatic handgun on October 23, 1998 "during and in relation to" a drug trafficking crime. Count Two charged Timmons with possessing on November 12, 1999, a .380 caliber handgun "in furtherance of" a drug trafficking crime. Count Three, charging Timmons with possessing a semi-automatic assault weapon "in furtherance of" a drug trafficking crime, was dismissed prior to trial.

Before trial, Timmons pled guilty to possessing crack cocaine with intent to distribute it on both October 23, 1998 and November 12, 1999. Thus, only the firearm counts, "during and in relation" to the October 23, 1998 drug trafficking, and "in furtherance" of the drug trafficking on November 12, 1999, were tried before a jury. The jury returned a verdict of guilty on both counts. Subsequently, Timmons filed a renewed motion for judgment of acquittal on both counts. The court denied the motion for judgment of acquittal on Count One but granted judgment of acquittal on Count Two. Both Timmons and the government appeal these orders.

Pursuant to Timmons' guilty plea, he was sentenced to 115 months imprisonment on the drug crimes. He was also sentenced to a consecutive five year term on Count One, the firearm possession "during and in relation" to the October 23, 1998 drug trafficking. Even though the district court found the evidence insufficient as to the November 12, 1999 firearms possession "in furtherance" of a drug trafficking crime, it used the evidence of such possession to enhance by two levels the sentence on the drug trafficking crimes to which Timmons had pled guilty. Timmons appeals the sentence on the drug counts claiming error in the enhancement.

II. FACTUAL BACKGROUND

I. The October 1998 Incident (Count One)

On the morning of October 5, 1998, Investigators Tullis and Brown from the Atlanta Police Department Gang Unit went to Lakewood Village Apartments in an undercover capacity. The investigators drove into the apartment complex in an undercover vehicle, and were approached by several males who offered to sell them marijuana and crack cocaine. One of the individuals who was present but did not participate in the sale was Clifford Timmons.

The officers also agreed to purchase a handgun later that day from two men, "Shorty" and "Black." While attempting to purchase the gun, a situation developed between the undercover officers and the gun sellers. At this point, Timmons approached and diffused the situation by taking the handgun from the individuals and removing the clip and all the bullets from the gun. He then gave the clip to the officers, received the money and gave them the gun. Shortly after completing this gun sale, Timmons offered to sell the undercover officers another handgun with a laser sight for $300. The officers and Timmons agreed to do future business and Timmons gave the officers his beeper number and code.

On October 23, 1998, during a subsequent recorded telephone conversation, Timmons again offered to sell the undercover officers a handgun with a laser sight for $300. The portion of the transcript of the October 23, 1998 sale of the gun reads:

Officer R. Tullis: You got something?

Clifford Timmons: Yeah I got something.

Tullis: Hey, uh, you got that, uh, laser?

Timmons: Yeah I still got it.

Tullis: You still got it?

Timmons: Yeah.

Tullis: You wanna get rid of it today?

Timmons: Yeah I'll get rid of it today.

R4-29 at 1.

Timmons claims that he did not explicitly discuss the sale of drugs on October 5, 1998. The Government points out, however, that Timmons was not surprised when the undercover officers asked about getting two "slabs" ($200 worth of drugs) during their phone conversation of October 23, 1998. The relevant portion of the transcript from that conversation reads:

Officer R. Tullis: Okay, what about, uh, that breakdown we, we discussed?

Clifford Timmons: The breakdown?

Tullis: Yeah.

Timmons: Yeah I got that too.

Tullis: Uh, cause uh myself and my partner we got like two ...

Timmons: Uh-uh.

Tullis: ... that the wanna, we wanna try to get like uh two, you can't give us two slabs?

Timmons: Yeah I can get for you.

R4-28 at 2.

The sale as negotiated was completed later that day after Officer Tullis met Timmons in the quad area of Lakewood Apartments. Timmons approached the car and handed the investigator a shoe box containing a Lorcin pistol and 2.3 grams of crack cocaine. The officers handed Timmons the $300 for the pistol and then $200 for the crack cocaine. The officers drove off after completing the sale.

II. The November 1999 Incident (Count Two)

On November 12, 1999, agents of the Bureau of Alcohol, Tobacco and Firearms obtained a warrant to arrest Timmons and to search his apartment. The warrant was executed at 8:30 p.m. that evening. When the officers arrived, Timmons was standing outside between his apartment and the apartment next door. Timmons was arrested outside his apartment and agents recovered a cellular telephone and a pager from his person and a two-way radio from the ground a few feet away. Inside the apartment, the officers recovered photographs and documents confirming that it was his apartment.

In the living room was a stove top oven. On top of the oven were two fully loaded firearms, an Intratec Model A B10 9mm luger and a Lorcin model 380. Inside the oven was an empty ammunition box of 9mm cartridges. In a closet next to the living room, agents found a bullet-proof vest. In addition, agents found crack cocaine and $350 inside a drawer under the stove. A clear plastic baggy with individual hits of crack cocaine was found under the cushions of the couch. Six individually packaged rocks of crack cocaine were recovered from a shoe of Timmons' size located in the bedroom of the apartment. In total, agents found 35.67 grams of crack cocaine in Timmons' apartment.

III. ANALYSIS

Both counts that were the subject of the trial and this appeal involve 18 U.S.C. § 924(c) which reads in pertinent part:

(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime — (i) be sentenced to a term of imprisonment of not less than 5 years[.]

This version of § 924(c) was passed in 1998 in response to the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). See United States v. Mackey, 265 F.3d 457, 461 (6th Cir.2001); United States v. Ceballos-Torres, 218 F.3d 409, 413 (5th Cir.2000). The Supreme Court "has described the statute's basic purpose broadly, as an effort to combat the `dangerous combination' of `drugs and guns.'" Muscarello v. United States, 524 U.S. 125, 132, 118 S.Ct. 1911, 1916, 141 L.Ed.2d 111 (quoting Smith v. United States, 508 U.S. 223, 240, 113 S.Ct. 2050, 2060, 124 L.Ed.2d 138 (1993)).

As Timmons pled guilty to the two underlying counts of possession with intent to distribute cocaine, the issues left for trial were: (1) whether Timmons used or carried a 9mm semi-automatic handgun on October 23, 1998, "during and in relation to" a drug trafficking crime, and (2) whether on November 12, 1999, Timmons possessed a .380 caliber handgun "in furtherance of" a drug trafficking crime. We find sufficient evidence as to both counts. Therefore, we affirm the district court's denial as to Count One (the October 23, 1998 charge) but reverse the judgment of acquittal on Count Two (the ...