United States v. Lyday ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 30 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-5147
(D.C. No. 96-CR-149-BU)
MYRAM LYDAY, also known as (N.D. Okla.)
Monkey, named in Magistrates
complaint as Myron Lyday and
indicted as Myram Lyday,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.
Defendant appeals his conviction for possession of a firearm during a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1), and the sentence imposed.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm in part and
dismiss in part.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I.
The government initiated an undercover investigation in Tulsa, Oklahoma,
in the summer of 1996, in an attempt to expose violations of federal firearms and
controlled substances laws. In July 1996, a third party introduced Lyday to a
confidential government informant, who expressed interest in purchasing crack
cocaine. Lyday gave his pager number to the informant and the informant
contacted Lyday a few days later to set up a meeting at the informant’s apartment.
Lyday sold crack cocaine to the informant and arranged for his partner, who had
accompanied Lyday to the apartment, to sell the informant a .22 caliber revolver.
The informant told Lyday he would like to buy more crack cocaine but could
afford additional purchases only by buying and reselling guns at a profit. The
informant pointedly stated his position to Lyday by telling him, “No guns, no yay
(crack).” Record I, Doc. 51 at 2. Lyday agreed to help the informant locate guns
for resale. Lyday called the informant the following week and the informant
agreed to purchase a sawed-off rifle for resale. Lyday brought the rifle and crack
cocaine to the informant’s apartment on August 1, and the informant gave Lyday
$100 for the rifle and $40 for the cocaine. The transaction was captured on
videotape.
The complaint filed on September 24, 1996, charged Lyday with, inter alia ,
three counts of possession of a firearm during a drug trafficking crime, in
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violation of 18 U.S.C. § 924(c)(1). Lyday moved to dismiss the § 924(c)(1)
counts on the grounds the government had presented insufficient evidence to
establish the firearms had been used or carried in relation to drug trafficking
crimes. A magistrate judge dismissed those counts for lack of probable cause.
Lyday was indicted by grand jury on October 4, 1996, for the same offenses
charged in the original complaint. He again moved to dismiss the § 924(c)(1)
charges, claiming the undisputed evidence was legally insufficient to support a
conviction. The district court denied the motion.
Lyday entered into a plea agreement, agreeing to plead guilty to one count
of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), in return
for the government’s promise to allow him to file a new motion to dismiss the §
924(c)(1) charges and not to object to an evidentiary hearing. He further agreed
to enter a conditional plea of guilty to one count of violating § 924(c)(1) in the
event the court denied his motion to dismiss. The district court conducted an
evidentiary hearing and denied the motion on June 25, 1997. Lyday pleaded
guilty to the § 924(c)(1) charge on June 30.
Lyday argued at sentencing that the district court should depart downward
because the government had engaged in “sentence entrapment.” The court
followed the presentence report recommendation and sentenced Lyday to
consecutive terms of 24 months’ imprisonment on the § 841(a)(1) count, and 120
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months’ imprisonment on the § 924(c)(1) count, followed by three years’
supervised release.
II.
Lyday contends the district court erred in denying his motion to dismiss the
§ 924(c)(1) count in the indictment. We review de novo a district court’s decision
to deny a motion to dismiss an indictment based on decisions of law. See United
States v. McAleer , 138 F.3d 852, 855 (10th Cir. 1998) (double jeopardy question);
see also United States v. Valenzuela-Escalante , 130 F.3d 944, 945 (10th Cir.
1997) (applying de novo standard to district court’s interpretation of federal
criminal statute). At issue here is whether the uncontroverted evidence could, as
a matter of law, establish a violation of § 924(c)(1). See United States v.
Richardson , 86 F.3d 1537, 1546 (10th Cir. 1996) (setting forth necessary elements
of § 924(c)(1) violation).
Lyday admits he committed the underlying drug crime and that he “carried”
a weapon during the drug transaction. He insists, however, that he did not use or
carry the weapon “in relation to” the drug crime. 1
Noting the separate purchase
prices, Lyday claims the sale of the rifle was independent and unrelated to the
sale of the cocaine. He further contends the two transactions were conducted at
1
Lyday also argues he did not “use” the rifle. Because § 924(c)(1)
punishes a defendant for using or carrying a gun in relation to a drug trafficking
crime, this argument is irrelevant.
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the same time and place through the government’s manipulation. See Appellant’s
Br. at 13 (“In the case at bar it was the informant , who demanded the gun, and
demanded it in such a way that 924(c) would surely apply.”)
In Smith v. United States , 508 U.S. 223, 237-38 (1993), the Court stated
the phrase “in relation to” in § 924(c)(1), means, at a minimum, that the gun must
have facilitated, or have the potential of facilitating the drug trafficking offense.
The Court made clear that a gun is not related to a drug trafficking crime if its
presence is merely the result of an accident or a coincidence. Id. at 238. The
facts of this case fit comfortably within the Smith holding. The presence of
Lyday’s rifle at the August 1 meeting between Lyday and the informant was not
accidental. Lyday intended to bring the rifle to the drug transaction. Moreover,
the gun facilitated the drug transaction because the informant expressly told
Lyday he would not buy additional drugs unless Lyday also sold him guns.
The application of the Smith test in United States v. Wilson , 115 F.3d 1185(4th Cir. 1997), is also instructive. In Wilson , a government informant went to
the defendant’s house to purchase drugs and was offered the opportunity to buy a
gun while he was there. The informant chose to purchase only the gun.
Nevertheless, the defendant was convicted of violating § 924(c)(1). The court
reversed the conviction based on lack of evidence establishing a nexus between
the firearm and the drug sale, explaining:
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First, the tape-recorded conversations and [the informant’s]
testimony reveal that Wilson neither bartered nor exchanged the rifle
for drugs. Second, the same evidence establishes that Wilson
attempted to sell both a rifle and marijuana to [the informant]. Third,
the Government failed to elicit testimony from [the informant] that
the presence of the firearm influenced his decision or intimidated
him into purchasing marijuana from Wilson. And fourth, [the
informant] freely elected to purchase the rifle instead of the
marijuana. Given the facts before us, we are hardpressed to conclude
that the sale of the rifle facilitated Wilson’s drug trafficking
business. It was a completely independent, yet contemporaneous
action.
Id. at 1191-92.
The instant action is significantly different from Wilson . Here, the firearm
in Lyday’s possession directly influenced the informant’s decision to purchase
drugs. Indeed, the informant told Lyday he would not buy additional drugs unless
he could also purchase guns. The primary reason Lyday took the rifle to the
informant’s apartment was to maintain the informant as a steady purchaser of
drugs. Under these facts, we conclude the evidence was sufficient, as a matter of
law, to sustain the § 924(c)(1) conviction.
III.
Lyday also contends the district court erred by failing to grant his motion
for a downward sentence departure based on sentencing entrapment. “[A]
discretionary decision not to depart downward is not reviewable unless the record
shows that the district court erroneously believed that the Guidelines did not
permit a departure.” United States v. Banta , 127 F.3d 982, 983 n.1 (10th Cir.
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1997). Lyday claims the district court did not understand it had the ability to
grant a downward departure based on the alleged sentencing entrapment.
During sentencing, the district court asked defense counsel whether he had
found case law indicating a court “has any authority to do a downward departure
on a 924(c)?” Record XIII at 25. Lyday insists this statement demonstrates the
court did not understand it could grant downward departure based on sentencing
entrapment. Viewed in isolation, Lyday’s characterization of the comment might
have some merit. However, an examination of the full sentencing transcript
belies such a conclusion. The court’s closing remarks underscore its recognition
that, although it had the power to grant a downward departure, Lyday was not
entitled to departure in this case. 2
Specifically, the court observed:
With regard to the issue of sentencing entrapment and whether
this conduct amounts to sentencing entrapment, the Court finds that it
does not apply. It appears from what you have said from the witness
stand that you had dealt in drugs for some time, that you had plenty
of contacts and this could have been--the drugs could have been sold
anywhere; it was you who [chose] to sell to the informant and also
get the guns involved. No one made you do that, that was your own
choice, Mr. Lyday.
Id. at 28.
2
The government erroneously suggests in its brief that the district court
had no authority to grant a downward departure in the absence of a government-
filed motion pursuant to U.S.S.G. § 5K1.1. Had the requisite criteria been
satisfied, the court could have granted a downward departure pursuant to § 5K2.0.
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We agree with the district court that Lyday has failed to present facts
sufficient to justify a departure based on sentencing entrapment. Claims of
sentencing entrapment are analyzed under the outrageous government conduct
standard. See United States v. Lacey , 86 F.3d 956, 963 (10th Cir. 1996). The
relevant inquiry is whether the government’s conduct is so shocking, outrageous,
and intolerable that it offends “the universal sense of justice.” Id. at 964. This
court has condoned governmental actions that increase the severity of the
defendant’s punishment. See , e.g. , id. at 962-66 (government informant did not
act outrageously by selling defendant additional quantities of drugs after he
possessed enough evidence to secure arrest and conviction). While it is somewhat
troubling that the government did not explain why it insisted on buying guns from
Lyday, Lyday has not established the government’s conduct was so shocking,
outrageous and intolerable that it offends “the universal sense of justice.” 3
We AFFIRM Lyday’s conviction and DISMISS for lack of jurisdiction that
portion of the appeal challenging the district court’s refusal to grant a downward
3
Lyday relies on United States v. Parrilla , 114 F.3d 124 (9th Cir. 1997), to
support his sentencing entrapment claim. Parrilla is both factually and legally
distinguishable. Unlike this circuit, the Ninth Circuit apparently does not analyze
claims of sentencing entrapment as outrageous government conduct claims.
Moreover, the Parrilla court remanded the case based on failure to make factual
findings concerning defendant’s predisposition toward selling guns. In contrast,
the district court here specifically determined Lyday was predisposed to selling
guns.
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departure at sentencing.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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