U.S. v. Wade

• Decision Date: 11 February 2003
• Docket Number: No. 01-5210.,01-5210.
• Citation: 318 F.3d 698
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Demetric WADE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 698

318 F.3d 698

UNITED STATES of America, Plaintiff-Appellee, v. Demetric WADE, Defendant-Appellant.

No. 01-5210.

United States Court of Appeals, Sixth Circuit.

Argued: December 13, 2002.

Decided and Filed: February 11, 2003.

COPYRIGHT MATERIAL OMITTED

Perry H. Piper, Asst. U.S. Atty. (argued and briefed), Chattanooga, TN, for Plaintiff-Appellee.

Rita C. LaLumia, Asst. Fed. Pub. Def. (argued and briefed), Federal Defender Services of Eastern Tennessee, Inc., Chattanooga, TN, for Defendant-Appellant.

Before BATCHELDER and MOORE, Circuit Judges; FORESTER, Chief District Judge.^*

OPINION

MOORE, Circuit Judge.

Defendant Demetric Wade appeals from his sentence for a drug trafficking offense and from his conviction for carrying a firearm during and in relation to a drug trafficking offense. Although the quantity of drugs for which Wade was sentenced had not been proven beyond a reasonable doubt, we affirm his sentence in light of the Supreme Court's holding in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not apply to mandatory minimums. However, because there was insufficient evidence to show that Wade foresaw or should have foreseen that his coconspirator would be carrying a firearm, we reverse his firearm conviction.

I. BACKGROUND

On September 14, 1999, detectives from the Hamilton County Sheriff's Department used Chris Eustis, a confidential informant, to arrange a drug purchase. Eustis called Demetric Wade, who had once offered to sell him drugs, and arranged to buy one ounce of crack cocaine; they agreed to meet in the parking lot of a local restaurant. Wade arrived at the parking lot a few minutes later, driving a car that contained three passengers. The passenger directly behind Wade's driver's seat was Bobby Smith.

The detectives approached Wade's car, and Detective Mark King approached the driver's side rear door, where Bobby Smith was sitting, and said, "Place your hands up." J.A. at 63-64. Smith reached down towards the floorboard of the car, King shouted again, and Smith came back up. Smith then reached down again and came back up. At this point, King removed Smith from the car and found a loaded Sig Sauer 9 mm firearm in the floorboard area where Smith had been sitting. The detectives searched Smith and found approximately seven grams of crack and twenty-two grams of powder cocaine. Detective King estimated at trial that the drugs had a street value of approximately $1,100.

Wade was arrested and charged with, among other offenses, conspiracy to distribute crack, a violation of 21 U.S.C. § 841, and carrying a firearm during and in relation to a drug trafficking crime, a violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § (2). Pursuant to a plea agreement in which the Government dismissed other charges, Wade agreed to plead guilty to the conspiracy to distribute charge, and he accepted a non-jury trial on the firearm charge. The plea agreement acknowledged that Bobby Smith, Wade's coconspirator, was carrying seven grams of crack, twenty-two grams of powder cocaine, and a handgun. The PSR confirmed this quantity of drugs.

After a bench trial, Wade was convicted of carrying a firearm during and in relation to a drug trafficking crime. The district court reasoned that, although there was no evidence that Wade was carrying a gun or had any knowledge that Smith was carrying a gun, under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), Wade could be guilty of offenses committed by coconspirators. The district court relied on the parties' statement at trial that they would stipulate to the fact that the caselaw is replete with the theory that guns are often the tools of the drug trade, and the court concluded that "one could reasonably foresee that at least one of the defendants involved in the Arby's transaction would be carrying a gun." J.A. at 22. Wade was thus convicted based on Pinkerton liability and sentenced for the gun offense to § 924(c)(1)(A)(i)'s mandatory five-year term.

For the conspiracy to distribute offense, Wade was sentenced to the mandatory-minimum five years for a quantity of crack in excess of five grams. The district court, after expressing concern over the harshness of the five-year firearm sentence due to Pinkerton, departed downward three levels on the drug offense, resulting in a guideline range of 51-63 months; the court stated that it would have departed further if it had not thought itself bound by the mandatory minimum of five years on the drug conviction. With respect to the mandatory minimum, the court noted during the sentencing hearing that no drug quantity had been alleged in the indictment and that there had been no finding of the quantity beyond a reasonable doubt. However, the court concluded that Apprendi did not apply to mandatory minimums, and it sentenced Wade to five years for the drug offense.

On December 8, 2000, Wade was sentenced to two consecutive five-year sentences. Wade timely appealed, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II. THE FIREARM CONVICTION

Wade argues that his due process rights were violated when he was convicted of firearm possession based on Pinkerton liability. Under Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), a defendant can be convicted for the criminal acts of a coconspirator so long as the crime was foreseeable and committed in furtherance of the conspiracy. See United States v. Christian, 942 F.2d 363, 367 (6th Cir.1991), cert. denied, 502 U.S. 1045, 112 S.Ct. 905, 116 L.Ed.2d 806 (1992). Here, however, there was insufficient evidence to find that Wade should reasonably have foreseen that one of his coconspirators would carry a firearm.

In determining whether the evidence supporting Wade's conviction is sufficient, we must ask "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. Humphrey, 279 F.3d 372, 378 (6th Cir.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We "view both circumstantial and direct evidence in a light most favorable to the prosecution," id., and "we draw all available inferences and resolve all issues of credibility in favor of the [factfinder's] verdict," United States v. Salgado, 250 F.3d 438, 446 (6th Cir.), cert. denied, 534 U.S. 916, 122 S.Ct. 263, 151 L.Ed.2d 192 (2001), and cert. denied, 534 U.S. 936, 122 S.Ct. 306, 151 L.Ed.2d 228 (2001).

Here, although the evidence is not in dispute, it is insufficient to support Wade's conviction. Four facts from the trial might support the finding that Wade should have foreseen that Smith would be carrying a gun. First, the parties stipulated that the case law is replete with the theory that guns are often the tools of the drug trade. Second, the transaction was to involve a quantity of cocaine and cocaine base that would have a street value of approximately $1,100. Third, the confidential informant testified that Wade had once told him that "if [the informant] needed something, to call him," which the informant understood as an offer to sell him crack. J.A. at 53 (Eustis Test.). Fourth, the informant called Wade in order to arrange the transaction, and Wade drove the car in which Smith arrived with the drugs and the gun.

We may infer that a defendant in a drug conspiracy should have foreseen his coconspirator's firearm possession, but the evidence supporting that inference must be more than a mere generalized presumption that drug transactions involve guns. As we stated in United States v. Cochran, 14 F.3d 1128, 1133 (6th Cir.1994), we are "not willing to indulge the fiction that a firearm's presence always will be foreseeable to persons participating in illegal drug transactions.... Rather, at a minimum, we require that there be objective evidence that the defendant knew the weapon was present, or at least knew it was reasonably probable that his coconspirator would be armed." We ruled in Cochran that a coconspirator's firearm possession was not reasonably foreseeable in a drug conspiracy when the gun was hidden from the defendant's view and there was no evidence that the conspiracy involved violence or large quantities of drugs. Id.

We are willing to infer that a coconspirator's firearm possession is foreseeable only when the quantity of drugs involved is so large that those involved would expect others to be carrying protection. Although the $1,100 worth of crack and powder cocaine involved here is not insubstantial, it is a far cry from the huge quantities involved when we have found firearm possession to be foreseeable. See, e.g., United States v. Myers, 102 F.3d 227, 230, 238 (6th Cir.1996) (finding foreseeability when defendants had $5000 cash and the coconspirator stated that the defendants knew of his gun's presence), cert. denied, 520 U.S. 1223, 117 S.Ct. 1720, 137 L.Ed.2d 843 (1997); United States v. Odom, 13 F.3d 949, 959 (6th Cir.) (finding gun possession foreseeable when the conspiracy involved at least 2.385 kilograms of cocaine), cert. denied, 511 U.S. 1094, 114 S.Ct. 1859, 128 L.Ed.2d 481 (1994), and cert. denied, 513 U.S. 836, 115 S.Ct. 116, 130 L.Ed.2d 62 (1994); Christian, 942 F.2d at 367 (finding foreseeability when conspirators' car contained $60,000). Cases in other circuits have involved similarly high quantities. See, e.g., United States v. Bailey, 235 F.3d 1069, 1073, 1074 (8th Cir.) (stating that "the carrying of firearms was reasonably foreseeable as a natural outgrowth of trafficking in large amounts of cocaine and cocaine base and the cash generated therefrom," when one conspirator was found with $64,225), cert. denied, 534 U.S. 879, 122 S.Ct. 182, 151 L.Ed.2d 126 (2001); United States v....