United States v. Pierson, 18-1112

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Hamilton, Circuit Judge.
• Citation: 925 F.3d 913
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Devan PIERSON, Defendant-Appellant.
• Docket Number: No. 18-1112,18-1112
• Decision Date: 31 May 2019

925 F.3d 913

UNITED STATES of America, Plaintiff-Appellee,
v.
Devan PIERSON, Defendant-Appellant.

No. 18-1112

United States Court of Appeals, Seventh Circuit.

Argued February 6, 2019
Decided May 31, 2019

Michelle P. Brady, Nicholas J. Linder, Brian L. Reitz, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN, for Plaintiff-Appellee.

Martin Louis Roth, Zac Ciullo, Attorneys, KIRKLAND & ELLIS LLP, Chicago, IL, for Defendant-Appellant.

Before Kanne, Sykes, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

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A jury found appellant Devan Pierson guilty of possessing drugs with intent to distribute and two related firearm crimes. Because of Pierson's prior criminal record, his mandatory sentence was life in prison. He raises three issues on appeal. The first, raised for the first time on appeal, is whether events at his trial added up to a constructive amendment of the two firearm charges in his indictment, which charged him with possession of one particular gun. Under our precedent in United States v. Leichtnam , 948 F.2d 370 (7th Cir. 1991), we conclude that an error occurred. It was not, however, a "plain error" that warrants reversal, and it did not affect Pierson's substantial rights. Second, Pierson argues that the court erred under Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by imposing the mandatory life sentence without having the jury find that he had two prior felony drug convictions. This argument is foreclosed by controlling Supreme Court precedent. See Almendarez-Torres v. United States , 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Third, he seeks the benefit of the First Step Act, which was enacted while Pierson's appeal was pending and which lowered the mandatory minimum sentence. The Act does not apply to Pierson, whose sentence was imposed before the Act took effect. We affirm Pierson's convictions and sentence.

I. Factual and Procedural Background

A. The Search and Arrest

The Indianapolis Metropolitan Police Department obtained a warrant to search an apartment where they suspected defendant Pierson was distributing drugs. Before executing the warrant, officers saw a disheveled, jittery man who, they said, looked like a substance abuser. The officers watched him ride a bicycle to the apartment parking lot and get into the passenger seat of a gray Chevrolet Malibu. Moments later, the man got out of the Malibu and rode away. Pierson then emerged from the driver's seat, retrieved a white bag from the trunk, and entered the apartment building.

Officers then executed the search warrant. In the apartment, they found the white bag sitting on top of the shoes that Pierson had been wearing when he entered the building. The white bag contained 91.25 grams of heroin, 6.34 grams of cocaine, and 100.47 grams of actual methamphetamine. Next to the white bag, the officers found two more bags. One contained 19.49 grams of cocaine. The other contained 2.38 grams of cocaine, 7.45 grams of methamphetamine, and 7.58 grams of heroin. Throughout the apartment, officers found other evidence of drug trafficking: surgical masks, plastic gloves, digital scales, and a bottle of lactose. In a kitchen drawer, officers found a Taurus Model PT 24/7 G2 .45 caliber handgun.

Officers then searched the Malibu. They found papers indicating that Pierson had purchased and insured the car. They also discovered that the center console had been modified to create a hidden void, where they found a second firearm, a Taurus Model PT 145 .45 caliber handgun. Both handguns were checked for fingerprints, but Pierson's prints were not on either. No fingerprints were recovered from what we will call the "car gun." A fingerprint belonging to an unknown person was recovered from the "kitchen gun."

B. Indictment and Trial

The indictment charged Pierson with three crimes: (1) possessing controlled substances with intent to distribute in violation of 21 U.S.C. § 841(a)(1) ; (2) possessing a firearm in furtherance of a drug trafficking crime in violation of

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18 U.S.C. § 924(c)(1)(A) ; and (3) possessing a firearm as a previously convicted felon in violation of 18 U.S.C. § 922(g)(1). In Counts II and III, the indictment specified only the car gun as the firearm charged—"that is, a Taurus Model PT 145 .45 caliber handgun."

Though only the car gun was charged, the government presented evidence at trial regarding both guns. Both were shown to the jury, and pictures of both were sent to the jury for deliberations. An ATF agent testified that both guns were manufactured in Brazil (providing a nexus with foreign commerce) and that both were stolen. After explaining where he found the kitchen gun, an officer testified that drug traffickers commonly possess firearms for protection. Pierson did not object to any of this evidence.

The government also presented evidence specific to the charged car gun. An officer testified that it was not unusual that Pierson's fingerprints were not on the car gun. Later, an officer explained the value of keeping a gun in a center console for purposes of drug trafficking. An officer also explained to the jury that a drug trafficker may, for protection and privacy, choose to keep a larger stash of drugs in the trunk while dealing drugs within the passenger compartment.

Before closing arguments, the district court gave the final jury instructions that both sides had approved. Using this circuit's pattern criminal jury instructions, the district court's instructions on Counts II and III did not signal that the car gun was the only firearm at issue. In closing argument, the government focused the jury on the car gun, making at least five statements that either tied the car gun to the drug trafficking crime of Count I or clarified that the car gun was the gun at issue in Counts II and III. When the prosecutor referred briefly to the kitchen gun in closing, he again clarified that the kitchen gun was not the gun charged: "The indictment deals with the gun in the car. What is charged in Count II and III is the stolen handgun behind the panel of the Defendant's car." In rebuttal, the prosecutor repeated the point: "We are talking about the gun in the Defendant's car, not the gun in the kitchen ... That is the gun that is the subject of Counts II and III."

In deliberations, the jury had a copy of the indictment, which contained the language specifying the model of the car gun. The verdict form referred the jury to the indictment, requiring the jury to mark "guilty" or "not guilty" for each charge "as described in the Indictment." The jury returned guilty verdicts on all counts.

C. Sentencing

Before sentencing, the government filed an Information pursuant to 21 U.S.C § 851 alleging that Pierson had two prior felony drug convictions. Under the law at the time, these convictions required a mandatory term of life in prison for the drug charge. See 21 U.S.C. § 841(b)(1)(A)(viii) (Jan. 2018). The jury was not asked to find that Pierson had those prior convictions; the district court made that finding, without objection, based on the § 851 Information. In addition to the mandatory life term, Pierson was sentenced to five years on Count II to be served consecutively to his life sentence, and a ten-year concurrent term for Count III.

II. Analysis

A. Constructive Amendment

On appeal, Pierson argues that his two firearm convictions should be vacated and remanded for a new trial because his indictment was constructively amended in violation of his Fifth Amendment rights. He argues that the combination of admitting

925 F.3d 919

evidence of the kitchen gun and the court's jury instructions, which did not specify that guilt could be found based only on the car gun, allowed the jury to convict him on grounds outside of the indictment.

1. Standard of Review

At trial, Pierson did not object to the kitchen gun evidence or the jury instructions, but we may still reverse under Federal Rule of Criminal Procedure 52(b), which provides: "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention." On plain-error review, we may reverse if: (1) an error occurred, (2) the error was plain, (3) it affected the defendant's substantial rights, and (4) it seriously affected the fairness, integrity, or public reputation of the proceedings. United States v. Olano , 507 U.S. 725, 732–738, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ; United States v. Duran , 407 F.3d 828, 834 (7th Cir. 2005). An error is a deviation in the district court from a legal rule that the defendant did not waive. See Olano, 507 U.S. at 732–33, 113 S.Ct. 1770. An error is "plain" if the law at the time of appellate review shows clearly that it was an error. See Henderson v. United States , 568 U.S. 266, 279, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013).¹

In United States v. Olano , the Supreme Court explained the third prong, affecting substantial rights: "in most cases it means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings." 507 U.S. at 734, 113 S.Ct. 1770 (internal citation omitted). The defendant bears the burden of showing this...