U.S. v. Walker, 92-50223
| Decision Date | 02 July 1993 |
| Docket Number | No. 92-50223,92-50223 |
| Parties | 38 Fed. R. Evid. Serv. 1198 UNITED STATES of America, Plaintiff-Appellee, v. Eddie Vincent WALKER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Harriet L. Hawkins and Myra Sun, Deputy Federal Public Defenders, Los Angeles, CA, for defendant-appellant.
Bart H. Williams and Miriam Krinsky, Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before: SCHROEDER, THOMPSON, and O'SCANNLAIN, Circuit Judges.
Eddie Vincent Walker appeals his conviction and 248-month sentence under the United States Sentencing Guidelines, following a jury trial, for possession with intent to distribute cocaine within 1,000 feet of a secondary school in violation of 21 U.S.C. §§ 841(a)(1) and 860, and carrying a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Walker's most serious challenge is to the increase of his offense level under U.S.S.G. section 2D1.2 for drug trafficking within 1,000 feet of a secondary school. He contends that the enhancement should apply only if the offense directly involved the school or its students and not to possession of drugs inside a house near a school. We discuss this and Walker's other challenges which include the admissibility of a notebook and the sufficiency of the evidence. We affirm on all grounds.
On October 4, 1991, agents executed a federal search warrant for an apartment in Compton, California. The apartment is located less than 150 feet from Compton High School. An agent yelled No one responded. The agents then made a forced entry into the apartment. Walker was lying on a living room couch with his hands up in the air. The agents found a fully loaded .25 caliber semiautomatic gun near the couch where Walker was lying.
Agents then handcuffed Walker, conducted a pat-down search and searched the apartment. During the pat-down search an agent discovered a key ring in Walker's pants pocket. The key ring had eleven keys including keys that opened the inner and outer doors to the apartment and three upstairs bedroom doors. Additionally, two keys were for a pickup truck owned by Walker, which was parked outside the apartment. In the kitchen area, agents found a razor blade, an Ohaus triple beam scale, a loaded .25 caliber firearm magazine, .25 auto ammunition, a box of .357 magnum ammunition, a cellular phone, a piece of mail addressed to Walker at a different address, thirteen small baggies containing rock cocaine, twelve baggies of marijuana, and $190.00 in cash.
The agents also found a spiral notebook on the kitchen table. The notebook contained, among other things, various beeper numbers including Walker's beeper number, numerous references to drugs and drug dealing, and eighteen different references to the defendant's name or nickname, "Stretch." Agents found little food in the kitchen, a scant amount of clothing belonging to Walker, and a few other items of Walker's.
Agents also searched the three upstairs bedrooms. In one bedroom agents found a brown paper bag. Inside it were a large plastic bag with twenty small plastic bags containing a total of 30.25 grams of cocaine base and thirteen small bags holding marijuana. In another bedroom, agents found a shoebox that contained six large clear plastic bags on the closet shelf, one bag holding thirty-six smaller bags each containing rock cocaine, another bag holding thirty-two smaller bags containing rock cocaine, and three bags each holding over 100 smaller bags of marijuana.
Walker was charged and convicted of possession with intent to distribute cocaine within 1,000 feet of a secondary school and possession of the .25 caliber semi-automatic weapon during the offense. The court sentenced Walker to 248 months in prison and ten years supervised release. Walker's sentence was based in part on a two-level increase in the base offense level because the illegal conduct took place within 1,000 feet of a school.
Walker contends that the district court erred by enhancing his base offense level pursuant to U.S.S.G. § 2D1.2, which applies to drug offenses "directly involving" a protected location. Specifically, he argues that section 2D1.2 is inapplicable because there was no evidence that his connection with the controlled substance directly involved Compton High School or its students. However, when the provisions of the Guideline are read together, they make it clear that they relate to a protected geographic zone and that the government need not prove that Walker intended to distribute to students.
Section 2D1.2(a)(1) provides for a two-level increase in a defendant's offense level for "controlled substances directly involving a protected location." It is one of alternative provisions. Section 2D1.2 provides in full:
Drug Offense Occurring Near Protected Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy
(a) Base Offense Level (Apply the greatest):
(1) 2 plus the offense level from § 2D1.1 applicable to the quantity of controlled substances directly involving a protected location or an underage or pregnant individual; or
(2) 1 plus the offense level from § 2D1.1 applicable to the total quantity of controlled substances involved in the offense; or
(3) 26, if the offense involved a person less than eighteen years of age; or
(4) 13, otherwise.
The first two of these alternative provisions should be read together. The first directs that two offense levels be added to the level appropriate for the quantity of controlled substances "directly involving a protected location or an underage or pregnant individual." The second directs a one level increase to the offense level applicable to the "total quantity of controlled substances involved in the offense."
Clearly the phrase "directly involving a protected location" in subsection (a)(1) is intended to distinguish that quantity from the "total quantity" of controlled substances involved in the offense. Thus, the distinction drawn by the Guideline is between drugs actually sold or possessed near the location and those drugs that are part of the same course of conduct but are sold or possessed outside the protected area. In this way, the Guideline sets forth a framework for calculating an enhancement when only some of the drugs at issue "involve" a protected location. The "directly involving" language serves a different purpose than that urged by Walker. It does not matter whether the drugs were sold on school property or to school children or whether the drugs were merely possessed near the protected location by someone unconnected to the school. It suffices that the drugs are present within 1,000 feet of the school.
This interpretation is buttressed by the Application Note in the Commentary to section 2D1.2, which draws the distinction between heroin sold near a protected location and heroin sold "elsewhere." The application note provides:
Application Note:
1. Where only part of the relevant offense conduct directly involved a protected location or an underage or pregnant individual, subsections (a)(1) and (a)(2) may result in different offense levels. For example, if the defendant, as part of the same course of conduct or common scheme or plan, sold 5 grams of heroin near a protected location and 10 grams of heroin elsewhere, the offense level from subsection (a)(1) would be level 16 (2 plus the offense level for the sale of 5 grams of heroin, the amount sold near the protected location); the offense level from subsection (a)(2) would be level 17 (1 plus the offense level for the sale of 15 grams of heroin, the total amount of heroin involved in the offense) (emphasis added).
Accordingly, we conclude that any drug offense committed within 1,000 feet of a school is one that "directly involves" a protected area for purposes of section 2D1.2.
Walker contends that the district court erred by admitting the notebook as indicia of criminal activity in the apartment because a notebook would not show the character of the apartment in which it was found. Alternatively, he argues that the district court's limiting instruction was insufficient to overcome the undue prejudicial effect of...
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