United States v. Nasir

• Decision Date: 08 November 2021
• Docket Number: No. 18-2888,18-2888
• Parties: UNITED STATES of America v. Malik NASIR, Appellant
• Court: U.S. Court of Appeals — Third Circuit

17 F.4th 459

UNITED STATES of America

v.Malik NASIR, Appellant

No. 18-2888

United States Court of Appeals, Third Circuit.

Argued on November 12, 2019 before Merits Panel

Argued En Banc on June 24, 2020

Remanded by the Supreme Court of the United States On October 4, 2021

Submitted on Remand November 5, 2021

Filed: November 8, 2021

Keith M. Donoghue [ARGUED], Brett G. Sweitzer, Federal Community Defender Office For the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center – Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant

Whitney C. Cloud [ARGUED], Robert F. Kravetz [ARGUED], Daniel E. Logan, Jr., Office of United States Attorney, 1313 North Market Street, Hercules Bldg. – Ste. 400, Wilmington, DE 19801, Counsel for Appellee

Ilya Shapiro, Cato Institute, 1000 Massachusetts Avenue, NW, Washington, DC 20001, Counsel for Amicus Cato Institute

Jared McClain, New Civil Liberties Alliance, 1225 19^th Street, NW – Suite 450, Washington, DC 20036, Counsel for Amicus New Civil Liberties Alliance

Evan A. Young, Baker Botts, 98 San Jacinto Boulevard – Suite 1500, Austin, TX 78701, Counsel for National Association of Home Builders, American Farm Bureau Federation, National Cattlemens Beef Association, and National Mining Association

Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, SCIRICA,^* and RENDELL,^* Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

On a tip, Malik Nasir was arrested near a storage unit in which he kept the marijuana he was selling. He was subsequently charged with, and convicted of, two drug offenses and a firearm offense. At sentencing, the District Court applied a career offender enhancement found in the United States Sentencing Guidelines (the "guidelines"). Nasir appealed his convictions and challenged the application of that enhancement. For the reasons that follow, we reject the challenge to his convictions and reiterate that the sentencing enhancement was not properly applied.¹ We will therefore affirm Nasir's convictions, vacate his sentence, and remand for resentencing.

I. BACKGROUND

On December 21, 2015, the owner of a storage facility in Dover, Delaware reported to the police suspicious activity at one of the storage units, number C69. The owner asked the police to visit the storage facility to discuss what he believed to be "drug occurrences" on his property. (App. at 90.) When the police arrived, he told them that, over the past several months, someone had visited that unit frequently, as often as five times a day. Each time, the man – whom he identified as Nasir – would enter the storage unit and close the door behind him. Shortly thereafter, he would reemerge and leave the facility. Concerned about illegal activity, the owner had taken a photograph of the inside of the unit, which he showed the officers. It revealed two large coolers, two closed buckets, a box of baggies, a large bag, and an aerosol spray can. The owner provided a copy of a rental agreement signed by Nasir and a photocopy of Nasir's driver's license. The rental agreement listed Nasir's storage unit as C43, not C69, but the police apparently did not notice that discrepancy.²

Following up on the information provided by the facility owner, the police ran a criminal history check on Nasir and learned that he had a criminal record that included felony drug convictions. They visited unit C69 with a drug detection dog, and the dog positively alerted to the presence of drugs there. Based on the accumulated evidence, the detectives applied for a search warrant for that unit.

While awaiting the warrant, several police officers remained at the storage unit, and one surveilled Nasir's home. The officer at the home saw Nasir place a large black bag in the back of a Mercury Mariner SUV and drive in the direction of the storage facility. Nasir in fact went to the facility, and, when he arrived, the officers stopped him as he entered the row of units including numbers C69 and C43. After handcuffing him and putting him in the back of a patrol car, they searched his SUV, where they found a black duffle bag and a key to unit C69.

That same night, a search warrant issued and was executed. In unit C69, the police found more than three kilograms of marijuana, as well as scales and packaging materials. The next day, they applied for and received a search warrant for Nasir's home and any vehicles on the property. While executing the warrant, the officers found $5,000 in cash in a grocery bag in the house and several handguns with ammunition in a Dodge Charger parked on the property.

Nasir was indicted for violating 21 U.S.C. § 856(a)(1), part of what is commonly known as the crack house statute (Count One), and was also charged under 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) for possession of marijuana with intent to distribute (Count Two), and under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) as a felon in possession of a firearm (Count Three). He moved to suppress the evidence obtained from the searches of the storage unit, his house, and his vehicles. The District Court held hearings on that motion and denied it.

Later, at trial, the jury convicted him on all three counts of the indictment.

After the trial, Nasir filed a motion to set aside the verdict and a motion for a new trial, both of which were denied. The District Court sentenced him to 210 months of imprisonment and three years of supervised release, having determined that he qualified as a career offender under the guidelines because of two earlier convictions in Virginia, one from the year 2000 for attempting to possess cocaine with intent to distribute and one from 2001 for possession of cocaine and marijuana. This appeal followed.

II. DISCUSSION³

This appeal now presents four issues.⁴ First, Nasir says that there was insufficient evidence to sustain his conviction under the crack house statute because the section of the statute under which he was convicted does not make it unlawful to store drugs. Second, he argues that the officer who searched the Mercury Mariner did not have probable cause to justify that search, so the evidence found there should have been suppressed. Third, he contends that a member of his jury was avowedly partial, so seating her deprived him of a fair trial. Fourth, he asserts that the career-offender enhancement under the guidelines should not have factored into his sentencing because one of his prior felony convictions does not qualify as a "controlled substance offense," as that term is defined in the guidelines.

We will affirm the District Court's denial of Nasir's motion for acquittal as to Counts 1 and 2 and accordingly affirm those convictions. In doing so, we reject Nasir's first three arguments. However, we agree that he does not qualify for the career-offender enhancement and must be resentenced.

A. The Crack House Conviction

Nasir first challenges his conviction under the crack house statute, specifically 21 U.S.C. § 856(a)(1), which makes it unlawful to "knowingly ... lease, rent, use, or maintain any place ... for the purpose of manufacturing, distributing, or using any controlled substance." Despite the breadth of that language, Nasir argues that his conviction should be reversed because, he says, that subsection was not meant to cover storage.⁵ Nasir did not preserve that argument in the District Court, so we review the denial of his motion for judgment of acquittal for plain error.⁶ United States v. Olano , 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We will reverse for plain error only if there was an actual error that is plain, that affects "the outcome of the district court proceedings," and that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. at 734-36, 113 S.Ct. 1770 (citations and internal quotation marks omitted) (alteration in original).

Nasir's argument rests on the contrast between subsection (a)(1) of the crack house statute, which he was convicted of violating, and subsection (a)(2), under which he was not charged. That latter subsection declares it unlawful to "manage or control any place, whether permanently or temporarily, ... and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing , distributing, or using a controlled substance." 21 U.S.C. § 856(a)(2) (emphasis added).

According to Nasir, because "storing" is listed as a prohibited activity in subsection (a)(2) but is not mentioned in subsection (a)(1), it was intentionally excluded from (a)(1). By his lights, since he was storing illegal drugs, he should be safe from conviction under (a)(1). But even if we were inclined to accept that subsection (a)(1) does not cover storage, that does not help Nasir. No sensible reading of the statute allows one to distribute drugs just because one is also storing them. Within unit C69, besides the drugs themselves, there was drug distribution paraphernalia, namely scales and packaging materials such as food storage bags. In addition to that evidence, there was the testimony of the facility owner about Nasir's frequent and suspicious trips to the unit. Subsection (a)(1) expressly prohibits "distributing" a controlled substance from any rented place, and the jury was presented with more than ample evidence that Nasir was doing just that. The District Court properly instructed the jury that it could find Nasir guilty of violating section 856(a)(1) if he used a "place for the purpose of manufacturing, distributing , or using any controlled substance." (App. at 615 (emphasis added).) There was thus an obvious and legitimate basis for his conviction under the crack house statute, and the District Court's denial of Nasir's motion for a judgment of acquittal was not error at all, let alone plain error.

B. The Motion to Suppress Evidence from the SUV

Nasir also...