United States v. Sparrow ( 2004 )

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Precedential or Non-Precedential: Precedential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
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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.
2
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).
3
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
4
denied and the District Court’s decision is
affirmed.
5