U.S. v. Vincent

Decision Date31 March 1994
Docket NumberNo. 93-1910,93-1910
Citation20 F.3d 229
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Mark Henry VINCENT, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Brian K. Delaney (argued and briefed), Office of the U.S. Atty., Grand Rapids, MI, for plaintiff-appellee.

Nancy L. Dilley (argued and briefed), Dilley & Dilley, Grand Rapids, MI, for defendant-appellant.

Before: KENNEDY and MILBURN, Circuit Judges; and LIVELY, Senior Circuit Judge.

MILBURN, Circuit Judge.

Defendant Mark Henry Vincent appeals his conviction and sentence for unlawful possession with intent to distribute marijuana and two firearm offenses. On appeal, the issues are (1) whether the evidence is sufficient to support defendant's conviction for distribution and possession with intent to distribute marijuana, (2) whether the evidence is sufficient to support defendant's conviction for unlawful use and carrying of a firearm during and in relation to a drug trafficking offense, (3) whether the evidence is sufficient to support defendant's conviction for possession of a firearm by an unlawful user of a controlled substance, and (4) whether the district court erred in applying the United States Sentencing Guidelines. For the reasons that follow, we affirm defendant's convictions, vacate the sentences imposed, and remand for resentencing.

I.
A.

On November 20, 1991, a warrant was issued for the search of defendant's home in Kalamazoo, Michigan. The search warrant, based upon information from a purchase of approximately one-quarter ounce of marijuana from defendant's home earlier in the day by a confidential informant, authorized a "no knock" entry because it was believed that guns were located in defendant's home. Later that day, officials of the Kalamazoo, Michigan, Enforcement Team executed the search warrant. Upon exiting their vehicle and approaching defendant's house, the enforcement team observed defendant move down his driveway brandishing a gun. The team illuminated defendant with flash lights and ordered him to drop his weapon. Defendant complied. The team then apprehended defendant and recovered his gun, which was identified as a fully loaded .45 caliber semi-automatic pistol. Thereafter, the team entered defendant's house pursuant to the search warrant. In the course of the search, officials uncovered numerous firearms, drugs, and drug paraphernalia.

B.

A three-count indictment was subsequently returned against defendant. Count 1 charged defendant with knowingly, willfully and unlawfully distributing and possessing with the intent to distribute a quantity of marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(D). Count 2 charged defendant with knowingly, intentionally and unlawfully using and carrying firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. Secs. 924(c)(1) and 924(c)(2) and 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(D). Count 3 charged defendant with knowingly receiving and possessing in and affecting interstate commerce a fully loaded Colt Mark 45, a .45 caliber semi-automatic pistol, while being an unlawful user of a controlled substance in violation of 18 U.S.C. Sec. 922(g)(3) and 18 U.S.C. Sec. 2.

A jury convicted defendant on all three counts. Defendant was sentenced to 30 months' imprisonment on count 1 and 30 months' imprisonment on count 3 which was to run concurrently with count 1. Additionally, defendant was sentenced to 60 months' imprisonment on count 2, which was to run consecutively to the terms of imprisonment imposed on counts 1 and 3, and fined $5,000. This timely appeal followed.

II.
A.

Defendant argues that the evidence admitted at trial does not support his conviction for distributing and possessing with the intent to distribute marijuana charged in count 1 of the indictment. In support of his position, defendant states that the only drug transaction relied upon by the government was the sale by defendant to the government informant on November 20, 1991. He argues that the sale to the informant is not sufficient to establish that he possessed the marijuana with the intent to distribute as opposed to possessing the drug for personal use.

"A defendant claiming 'insufficiency of the evidence bears a very heavy burden.' " United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.) (quoting United States v. Soto, 716 F.2d 989, 991 (2d Cir.1983)), cert. denied, 476 U.S. 1123, 106 S.Ct. 1991, 90 L.Ed.2d 672 (1986). Where, as here, the defendant has moved for a judgment of acquittal both at the close of the government's case and at the close of all the evidence, our standard of review concerning a sufficiency of the evidence issue is " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Evans, 883 F.2d 496, 501 (6th Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). "Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt." Vannerson, 786 F.2d at 225.

The government submitted ample evidence for a rational fact finder to have found the essential elements of the drug possession offense charged in count 1 of the indictment. Count 1 charged defendant with both the knowing or intentional distribution of marijuana and the knowing or intentional possession with intent to distribute marijuana. In order to establish the knowing or intentional distribution of a controlled substance, the government needed only to show that defendant knowingly or intentionally delivered a controlled substance. 21 U.S.C. Sec. 802(11). It was irrelevant for the government to also show that defendant was paid for the delivery. United States v. Coady, 809 F.2d 119, 124 (1st Cir.1987). Moreover, the government could satisfy its burden of establishing that defendant knowingly or intentionally possessed marijuana with intent to distribute it through the inferences drawn from evidence such as the quantity of the marijuana involved, United States v. Faymore, 736 F.2d 328, 333 (6th Cir.), cert. denied, 469 U.S. 868, 105 S.Ct. 213, 83 L.Ed.2d 143 (1984), the estimated street value of the marijuana, id., the purity of the marijuana, United States v. Blake, 484 F.2d 50, 58 (8th Cir.1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974), and other evidence which would support the inference that the marijuana was not intended to be used for personal use. United States v. Pennyman, 889 F.2d 104, 108 (6th Cir.1989).

In satisfying its burden of establishing that defendant knowingly or intentionally distributed marijuana, the government first presented a witness employed by the Bureau of Alcohol, Tobacco & Firearms. This witness testified that during a noncustodial interview defendant admitted to her that he had sold marijuana to a person on the day the search warrant was executed and that in the past he had shared marijuana with friends. The government also called a witness who, with the assistance of the prosecutor, read into evidence a sworn statement made by defendant in a state proceeding against defendant's wife. In that sworn statement, defendant stated that he had given marijuana to a person who later was identified as a government informant. Testimony was also elicited from a law enforcement official of the Kalamazoo, Michigan, Enforcement Team who accompanied the government informant to defendant's home to purchase marijuana on November 20, 1991. The witness stated that he gave the informant marked money and instructed the informant to purchase marijuana from defendant. The witness then testified that he recovered from the informant a bag of marijuana and a portion of the marked funds not used in the purchase after the informant left the defendant's home.

In satisfying its burden of establishing that defendant knowingly or intentionally possessed the marijuana with the intent to distribute it, the government introduced, through the testimony of several witnesses, evidence which inferred that the marijuana possessed by defendant was not for his personal use. For instance, the government introduced at trial the marked money used by the government informant to purchase marijuana from defendant on November 20, 1991. Moreover, government witnesses testified that in the search of defendant's house they seized over 15 pounds of high-quality marijuana, which had a street value of over $35,000.00, hand scales suitable for weighing and measuring quantities of marijuana, growing lamps, and a book describing how to grow marijuana. The government also introduced defendant's own admission that he gave the government informant a bag of marijuana and that he used to share marijuana with friends.

Apart from arguing that the evidence was insufficient to support his conviction under count 1, defendant also raises several other arguments in support of his position that his conviction should be reversed. Defendant argues for the first time on appeal that the government introduced irrelevant and highly prejudicial evidence against him. Specifically, defendant objects to the evidence of the government which revealed that defendant used cocaine, methamphetamine, and hashish as well as the introduction of the grow lights, styrofoam cups, and the marijuana grower's guide. Defendant contends that none of this information was relevant to the crimes charged.

Because defendant raises this argument for the first time on appeal, we review solely for plain error. Fed.R.Crim.P. 52(b). Our review under that standard is comprised of four distinct inquiries. First, we are to consider whether an error occurred in the district court. United States v. Olano, --- U.S. ----, ----, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993). Absent any error, our...

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