United States v. Sparrow

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

6-15-2004

USA v. Sparrow Precedential or Non-Precedential: Precedential

Docket No. 02-3571 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation "USA v. Sparrow" (2004). 2004 Decisions. Paper 555. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/555

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PRECEDENTIAL Patrick L. Meehan United States Attorney UNITED STATES Laurie Magid COURT OF APPEALS Deputy United States Attorney FOR THE THIRD CIRCUIT Emily McKillip Assistant United States Attorney Judy Goldstein Smith No. 02-3571 Assistant United States Attorney 615 Chestnut Street Philadelphia, PA 19106 UNITED STATES OF AMERICA Attorneys for Appellee v.

GAYLORD SPARROW, OPINION OF THE COURT Appellant

AM BRO, Circuit Judge On Appeal from the Gaylord Sparrow seeks a writ of United States District Court habeas corpus in regard to his conviction for the Eastern District of Pennsylvania and sentence under 18 U.S.C. § 924(c) — D.C. Criminal Action No. 99-cr-00290 possession of a firearm in furtherance of a (Honorable Harvey Bartle, III) drug trafficking crime. He argues that the facts of the case do not support his conviction. We disagree and affirm the District Court’s decision to deny his Submitted Under Third Circuit LAR habeas petition. 34.1(a) I. Factual and Procedural Background March 23, 2004 Sparrow sold marijuana out of a Before: ROTH, AMBRO, and convenience store on Chew Avenue in CHERTOFF, Circuit Judges Philadelphia. Acting on complaints from citizens, the Philadelphia police conducted (Opinion filed June 15, 2004 ) surveillance on the store. A search warrant was obtained and executed in Stephen J. Binhak, Esq. March 1999. During the search, police 3103 Philmont Avenue found a concealed compartment under the Huntingdon Valley, PA 19006 floor tiles behind the counter. The compartment contained nine large Ziploc Attorney for Appellant bags of marijuana, $140 in cash and a

loaded Jennings .22 caliber pistol.1 In 28 U.S.C. § 2255, alleging ineffective addition, a key to the store was found in assistance of counsel. He argues that the Sparrow’s pocket, and he was the only facts established in the plea agreement and tenant on the lease. Sparrow admitted hearing were insufficient to sustain his § possession of the gun. He now alleges, 924(c) conviction. Therefore, he contends however, that the police had to pry the it was error for counsel to permit him to floor tiles up with a crowbar to gain access plead guilty to this count. The District to this compartment. Court denied Sparrow’s petition and his request for a certificate of appealability. After spending ten months as a We granted the request for a certificate of fugitive, Sparro w u ltim a te ly w as appealability on “whether the facts of the apprehended and pled guilty to: (1) one case support a conviction for possession of count of distribution of marijuana and one a gun in furtherance of a drug trafficking count of possession with intent to crime.” 2 distribute marijuana, both in violation of 21 U.S.C. § 841(a)(1); (2) two counts of II. Standard of Review being a felon in possession of a firearm, 18 To the extent this case turns on U.S.C. § 922(g); and (3) possession of a statutory interpretation, such as the legal firearm in furtherance of a drug trafficking requirements for proving a § 924(c) crime, 18 U.S.C. § 924(c). The District conviction, we exercise plenary review. Court imposed a sentence of sixty months United States v. Cepero, 224 F.3d 256, 258 imprisonment for the distribution and felon (3d Cir. 2000) (en banc); see also United in possession counts and a consecutive States v. Mackey, 265 F.3d 457, 460 (6th sixty-month sentence for the § 924(c) Cir. 2001) (discussing § 924(c)). Whether count. Sparrow appealed his sentence (on Sparrow’s possession of a firearm was in an issue unrelated to his current petition) furtherance of his drug trafficking and we affirmed the judgment of the activities, however, is a sufficiency of the District Court in July 2001. evidence question. United States v. Sparrow then filed a petition for a Lomax, 293 F.3d 701, 705 (4th Cir. 2002), writ of habeas corpus pursuant to cert. denied, 537 U.S. 1031 (2002); United States v. Ceballos-Torres, 218 F.3d 409, 411 (5th Cir. 2000). Therefore, we 1 examine the “totality of the evidence, both While not relevant to the resolution of direct and circumstantial,” and must credit this case, the search also uncovered the “all available inferences in favor of the following: (1) two large bags of marijuana government.” United States v. Gambone, and forty dollars on the store counter-top, and (2) thirty-one large bags of marijuana, fifty-seven small packets of marijuana and 2 a scale above the steps leading to the We have jurisdiction under 28 U.S.C. cellar. §§ 1291 and 2253.

314 F.3d 163, 170 (3d Cir. 2003) (citations the type of drug activity that omitted), cert. denied, 124 S. Ct. 67 is being conducted, (2003). accessibility of the firearm, the type of the weapon, III. Analysis whether the weapon is Sparrow argues that possession of stolen, the status of the the loaded pistol was not in furtherance of possession (legitimate or his drug trafficking crimes because an illegal), whether the gun is insufficient factual nexus exists between loaded, proximity to drugs the two. Although our Court has not or drug profits, and the time decided this issue in a precedential and circumstances under opinion3 , the facts of this case and a which the gun is found. review of relevant case law satisfy us that Id. at 414-15; see also Lomax, 293 F.3d at the e vi de nc e s up p or ts Sp ar ro w ’s 705; United States v. Timmons, 283 F.3d conviction. 1246, 1253 (11th Cir. 2002), cert. denied, Under § 924(c), the “mere 537 U.S. 1004 (2002); Mackey, 265 F.3d presence” of a gun is not enough. “What at 462. is instead required is evidence more Sparrow’s argument is premised on specific to the particular defendant, the fact that the pistol was found showing that his or her possession actually underneath the floor tiles. Because furthered the drug trafficking offense.” (according to Sparrow) the police needed Ceballos-Torres, 218 F.3d at 414; see also a crowbar to gain access to the secret Mackey, 265 F.3d at 462 (stating “that the compartment, the firearm could not have possession of a firearm on the same been in furtherance of his drug trafficking premises as a drug transaction would not, activities. See Mackey, 265 F.3d at 462 without a showing of connection between (stating “the firearm must be strategically the two, sustain a § 924(c) conviction”). located so that it is quickly and easily Put another way, the evidence must available for use” (citation omitted)); demonstrate that possession of the firearm United States v. Lawrence, 308 F.3d 623, advanced or helped forward a drug 630 (6th Cir. 2002) (reversing § 924(c) trafficking crime. Lomax, 293 F.3d at conviction when firearm was found 705; Ceballos-Torres, 218 F.3d at 414. In unloaded, in a cupboard and “wrapped in making this determination, the following the same newspaper in which it was nonexclusive factors are relevant: covered at the time of delivery”); United States v. Iiland, 254 F.3d 1264, 1274 (10th 3 Cir. 2001) (reversing conviction because We did address it, however, in a not the Government produced “no evidence precedential opinion–United States v. that the gun and drugs were ever kept in Morgan, 33 Fed. Appx. 603 (3d Cir. the same place or that [the defendant] ever 2002).

kept the gun accessible when conducting drugs were found in a ceiling crawlspace, drug transactions”). requiring the agent to stand on a chair and climb into the crawlspace); Morgan, 33 While the location of a firearm is Fed. Appx. at 605-606 (affirming a d m i t t e d l y r e l e v a n t , im m e d i a t e conviction when firearms and drugs were accessibility at the time of search or arrest found together in a drop ceiling while the is not a legal requirement for a § 924(c) defendant was away from his apartment); conviction. The only court to state or Bressi v. United States, No. Civ. A. 01- imply this is Mackey, but its statement 407, 2001 WL 395289 (E.D. Pa. Apr. 5, must be analyzed in context. See 265 F.3d 2001) (denying a habeas petition when a at 462 (stating that accessibility and the firearm and drugs were found in a locked Ceballos-Torres factors merely help “to safe). distinguish possession in furtherance of a crime from innocent possession of a Examining the facts of the case, wall-mounted antique or an unloaded many of the Ceballos-Torres factors are hunting rifle locked in a cupboard”). Even satisfied. As a prior felon, Sparrow may the Sixth Circuit does not interpret its not legally possess a firearm. In addition, Mackey decision as requiring immediate the firearm in question was loaded, found accessibility. United States v. Nance, 40 in a public store and kept in the same floor Fed. Appx. 59, 66 (6th Cir. 2002) (“One compartment as nine large Ziploc bags of way to demonstrate ‘possession in marijuana and $140 in cash. Even furtherance’ is by showing the guns were assuming (as Sparrow claims) the firearm strategically located for quick and easy was not easily accessible, it was use. The Mackey court also recognized as strategically located. The gun was placed helpful the [Ceballos-Torres] factors . . . .” so that it would be immediately available (emphasis added) (citations omitted)), cert. for Sparrow’s protection whenever he denied, 537 U.S. 989 (2002). retrieved drugs or money from the floor compartment. Therefore, it is reasonable In fact, a number of courts have to assume the firearm was placed in the upheld § 924(c) convictions when the floor compartment for that purpose and firearm in question was not easily or was possessed in furtherance of Sparrow’s immediately accessible. See United States drug activities. v. Garner, 338 F.3d 78, 80-81 (1st Cir. 2003) (affirming conviction when firearms ***** and drugs were found in a hole in a wall of In this context, sufficient evidence a building’s common basement and the exists to support Sparrow’s § 924(c) defendant was selling drugs out of an conviction. As such, his attorney’s advice apartment in the building), cert. denied, to plead guilty does not constitute 124 S. Ct. 948 (2003); United States v. ineffective assistance of counsel. His Luciano, 329 F.3d 1, 3-6 (1st Cir. 2003) petition for a writ of habeas corpus is (affirming conviction when a firearm and

denied and the District Court’s decision is affirmed.