United States v. Khalid Carter ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3108
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UNITED STATES OF AMERICA
v.
KHALID FAHIDE CARTER,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. No. 16-cr-00125-001)
District Judge: Hon. Christopher C. Conner
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Submitted under Third Circuit L.A.R. 34.1(a)
October 4, 2018
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Before: SHWARTZ, SCIRICA, and ROTH, Circuit Judges.
(Filed: November 2, 2018)
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OPINION*
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SHWARTZ, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Khalid Fahide Carter (“Carter”) appeals his conviction for possession of a firearm
in furtherance of drug trafficking and his sentence on drug charges. For the following
reasons, we will affirm.
I
A
Carter was tried for drug and firearms offenses. During trial, the jury learned that
Carter sold crack cocaine to a confidential informant (“CI”) during a controlled buy set
up by the Harrisburg Police Department. No officers testified to seeing a firearm on
Carter during the transaction. After selling approximately one gram of crack cocaine,1
Carter entered a van occupied by two women. Law enforcement stopped the van within
ten seconds. One officer said that he observed “commotion going on in the back seat,”
App. 95, before Carter “very frantically exited the” van, App. 118, and ran. During the
chase, Carter tossed a loaded semi-automatic pistol onto a nearby roof. Carter was
quickly apprehended. Law enforcement searched Carter and found a cell phone, cash,
and over five grams of crack cocaine. About ten-to-fifteen feet from where Carter was
arrested, officers found a loaded firearm with a bullet in the chamber. According to one
officer, Carter disclaimed any knowledge of the firearm and suggested that it belonged to
the parents of one of the women in the van. Officers later determined that the firearm
belonged to Carter’s friend, Michael Pfautz. Inside the van, officers recovered Carter’s
Pennsylvania ID card, a digital scale, two magazines, and a holster that fit the firearm.
1
An FBI Special Agent testified that a gram or less of crack cocaine sells for
$20.00-$50.00.
2
Regarding the firearm, the women who were in the van testified that they did not
see a firearm in the van at any time and they estimated that Carter was not in the van for
long, stating that the officers arrived as soon as he got into the van. Pfautz testified that
he owned the firearm. He said that he had accidentally left the firearm in its plastic case
at Carter’s house, but that he did not leave behind any ammunition or a holster. Pfautz
testified that when he realized he left the firearm at Carter’s house, he contacted Carter to
alert him, but that Carter never contacted him about returning the firearm.
Carter testified in his defense. He admitted that he began selling crack cocaine in
2014, after he grew “tired of waiting for a [potential employer] to call [him] back,” App.
224, and continued selling until his arrest in January 2016. He testified that he did not
use crack cocaine but admitted selling crack to the CI and explained that during the sale,
the van occupied by the women drove past him. He testified that he entered the van,
which moved only ten-to-fifteen feet before it was stopped by law enforcement. Carter
claimed that he then “reach[ed] down in the backseat, grabbed the handgun, placed it in
my waistband, opened the door, . . . fled from the van,” and then threw the firearm onto a
nearby roof. App. 237.
Carter claimed that he possessed the firearm that day because he planned to return
it to Pfautz and that he did not carry it during the drug transaction. However, he testified
that he had not called Pfautz or made any other arrangements to return the firearm. To
account for why the firearm was loaded, Carter testified that he took the firearm to a
friend’s house and the friend offered him a magazine and individual rounds and that
Carter filled two magazines and placed one bullet in the chamber. Carter testified that he
3
did not know how to unload the magazines and so he intended to return the firearm with a
round in the chamber, two loaded magazines, and one empty magazine, but not with the
gun’s plastic case, which he left at his house.
The jury found Carter guilty of distribution of cocaine base in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C) and possession of a firearm in furtherance of a drug
trafficking crime in violation 18 U.S.C. § 924(c)(1)(A).
B
The United States Probation Office prepared a Presentence Report (“PSR”), which
calculated an offense level for the drug offense of 24 because the “offense involved at
least 28 but less than 112 grams of crack cocaine” under U.S.S.G. § 2D1.1(a)(8), which,
with a Criminal History Category III, resulted in a Guidelines range of 63-78 months. To
calculate the drug quantity, the PSR relied on Carter’s admission that he “distributed
crack over a two-year period” and that “[c]onservatively, even if [Carter] only distributed
one gram per week over the two-year period, the quantity is 110 grams of cocaine base.”
PSR ¶ 9. Carter objected to this calculation, arguing that while he may have admitted to
drug trafficking for two years, there is no evidence as to the frequency or amount of
drugs that he trafficked. In overruling Carter’s objection, the District Court stated:
After looking at the trial transcript in this case I conclude that
the record amply supports the presentence report’s estimate
that the offense involved at least 28 but less than 112 grams of
crack cocaine, and I say that is a conservative estimate. At trial
the defendant admitted to dealing from 2014 to 2016. He also
testified that he sold drugs to the confidential informant prior
to the sale made on January 12, 2016.
4
The defendant’s own testimony, coupled with the amount of
crack cocaine that was found on his person, 5.06 grams upon
arrest, and the forty dollars worth of crack cocaine that he sold,
approximately six grams, that same day, is sufficient to support
the presentence report’s estimate.
The [C]ourt thus concludes that the drug weight equals at least
28 grams, but not more than 112 grams of crack cocaine, and I
will overrule the defendant’s objection . . . .
App. 339-40. The Court thus adopted the PSR’s Guidelines calculation and findings,
including that Carter had a history of intermittent employment. The Court then heard
from the parties, including Carter, who noted that he had been incarcerated for “the whole
2014, so I don’t know how I can be charged for like selling drugs from two years, from
’16 to ’14, because I was incarcerated for eleven months.” App. 347. The Court imposed
a total sentence of 123 months, which included a sixty-three-month sentence on his drug
crime and a consecutive sixty-month sentence for his conviction for possession of a
firearm in furtherance of drug trafficking.
Carter appeals.
II2
A
1
We first review Carter’s argument that there was insufficient evidence to support
his conviction under 18 U.S.C. § 924(c)(1)(A) for possession of a firearm in furtherance
of drug trafficking. Because Carter “did not preserve this issue for appeal by filing a
2
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 3742(a).
5
timely motion for a judgment of acquittal, . . . we review the sufficiency of the evidence
under a plain error standard.” United States v. Gaydos, 108 F.3d 505, 509 (3d Cir. 1997).
When reviewing the sufficiency of evidence to sustain a conviction, we examine the
“totality of the evidence, both direct and circumstantial,” and credit “all available
inferences in favor of the [G]overnment.” United States v. Sparrow, 371 F.3d 851, 852
(3d Cir. 2004) (citations omitted). “We have . . . evaluated claims of insufficiency of
evidence in the plain error context and have explained that plain error warranting reversal
exists when the insufficiency ‘resulted in a fundamental miscarriage of justice.’” United
States v. Castro, 704 F.3d 125, 137–38 (3d Cir. 2013) (quoting United States v. Barel,
939 F.2d 26, 37 (3d Cir. 1991)). “The prosecution’s failure to prove an essential element
of the charged offense does constitute plain error, and so can be understood as a
miscarriage of justice.” Id. at 138 (internal citations omitted). “It bears emphasis,
however, that a manifest miscarriage of justice warranting reversal on plain error review
occurs only where the record is devoid of evidence pointing to guilt—a stricter than usual
standard.”3 Castro, 704 F.3d at 138 (internal citations and quotation marks omitted).
Here, the record is replete with evidence establishing Carter’s guilt.
2
3
When the sufficiency challenge is preserved, we will “sustain the verdict unless
it is clear that no rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Walker, 657 F.3d 160, 171 (3d Cir. 2011)
(quoting United States v. Mercado, 610 F.3d 841, 845 (3d Cir. 2010)).
6
To prove a violation of § 924(c)(1)(A), the Government must prove: (1) the
defendant committed a drug trafficking offense; (2) the defendant knowingly possessed a
firearm; and (3) the defendant knowingly possessed the firearm in furtherance of a drug
trafficking offense. United States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006). In
determining whether the evidence was sufficient as to the third element, which is the only
element Carter challenges, we examine
the type of drug activity that is being conducted, accessibility
of the firearm, the type of the weapon, whether the weapon is
stolen, the status of the possession (legitimate or illegal),
whether the gun is loaded, proximity to drugs or drug profits,
and the time and circumstances under which the gun is found.
Sparrow, 371 F.3d at 853. Many of these factors support the jury’s verdict.
Carter was apprehended: (1) immediately after he completed a drug deal, (2) while
carrying proceeds from that sale and additional drugs, and (3) moments after he discarded
a gun. Based on this conduct and the items he possessed when arrested, a rational jury
could infer that he possessed the firearm to protect his drugs and cash. Carter argues that
the absence of testimony that he was seen with a firearm during the drug deal itself
precludes a finding of accessibility. However, the jury was allowed to draw inferences
from the timing between the sale and his flight with a gun immediately after the sale and
his testimony that he tossed the firearm before he was apprehended to conclude the
firearm was accessible.
Moreover, given Pfautz’s testimony that he did not leave any ammunition with the
firearm or purchase a holster for it and that Carter obtained ammunition and loaded the
gun at some point before the drug sale, the jury could have inferred that Carter had
7
intended to have the loaded gun available for his use during the sale. The jury was also
free to discredit Carter’s explanation that he had loaded the gun only out of curiosity and
that he did not know how to unload it, particularly given his testimony that he knew how
to load the gun.4 A rational jury was also permitted to reject Carter’s claim he intended
to return the gun to Pfautz that day given that: (1) he initially told police that the firearm
belonged to the parents of the women in the van and (2) at trial, he testified that the gun
belonged to Pfautz, admitted that he made no arrangements to return the gun, and that he
had items in the van for the gun that Pfautz did not own, like a holster and magazines,
and that he did not have the gun’s plastic case. The close proximity of the drug sale to
the firearm, Carter’s flight and his tossing the gun, his initial statement, and his weak
claim that he planned to return the gun to Pfautz, together with the other items found,
such as the magazines, holster, scale, and additional drugs provided a sufficient basis for
the jury to find Carter possessed the firearm in furtherance of a drug trafficking crime.
Thus, because the record has sufficient evidence to support the jury’s conclusion, there is
no error, plain or otherwise, in allowing the firearms conviction to stand.
B
We next examine Carter’s challenge to his drug sentence. “When reviewing the
sentencing decisions of the district courts, we exercise plenary review over legal
questions concerning the meaning of the sentencing guidelines, but apply the deferential
4
While there is no direct evidence that Carter “affirmatively acquire[d] the firearm
to promote his drug activities,” Appellant’s Br. 43, “our prior decisions have not required
that every single factor must weigh in favor of conviction.” Walker, 657 F.3d at 173.
8
clearly erroneous standard to factual determinations underlying their application.”
United States v. Collado, 975 F.2d 985, 990 (3d Cir. 1992) (citations, quotations, and
alterations omitted). “A finding is clearly erroneous when, although there is evidence to
support it, the reviewing body . . . is left with the definite and firm conviction that a
mistake has been committed.” United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007)
(en banc) (internal citations, quotation marks, and alterations omitted).
Carter argues that the District Court clearly erred in finding that his drug
trafficking offense involved at least 28 grams, but less than 112 grams of crack cocaine
and awarding the resulting offense level of 24. The amount of drugs involved in the
offense dictates the Sentencing Guidelines offense level. “[I]n calculating the amount of
drugs involved in a particular operation, a degree of estimation is sometimes necessary,”
United States v. Paulino, 996 F.2d 1541, 1545 (3d Cir. 1993), and the Guidelines provide
guidance for courts in making this estimation:
Types and quantities of drugs not specified in the count of
conviction may be considered in determining the offense level.
See § 1B1.3(a)(2) (Relevant Conduct). Where there is no drug
seizure or the amount seized does not reflect the scale of the
offense, the court shall approximate the quantity of the
controlled substance. In making this determination, the court
may consider, for example, the price generally obtained for the
controlled substance, financial or other records, [and] similar
transactions in controlled substance by the defendant . . . .
U.S.S.G. § 2D1.1, Application Note 5. “[T]he length of . . . drug [activity] together with
other evidence may [also] provide a basis for a satisfactory estimate of the quantity of
drugs involved.” United States v. Reyes, 930 F.2d 310, 315 (3d Cir. 1991).
9
Here, the length of Carter’s drug trafficking activities, the quantity of drugs he
sold and with which he was arrested, and his reason for dealing drugs support the District
Court’s finding that he trafficked at least 28 grams of crack cocaine by a preponderance
of the evidence. United States v. Gibbs, 190 F.3d 188, 203 (3d Cir. 1999). First, Carter
was arrested after having sold approximately one gram of crack cocaine. Second, at the
time of his arrest, Carter was in possession of another five grams of crack cocaine, which
he was likely to distribute because he does not use crack cocaine. Third, Carter testified
that he had been dealing drugs from 2014 until his arrest in 2016. Given that Carter had
sold and was apprehended with a total of six grams of crack cocaine, the Court only
needed to ascertain whether he sold at least twenty-two additional grams of crack cocaine
in the fourteen months when he was not incarcerated, i.e., less than two grams per
month,5 to reach the minimum amount for the offense level it found applicable. Such an
estimated amount is reasonable because Carter testified that he started selling drugs after
he grew “tired of waiting for a [potential employer] to call [him] back.” App. 224. This
testimony, coupled with his history of intermittent employment, supports the inference
that he relied on drug trafficking as his source of income. Because a gram or less of
5
Carter argues that the District Court erred because it did not consider Carter’s
statement at sentencing that he was incarcerated for most of 2014. While Carter made
this point after the Court ruled on the objection to the drug quantity calculation, nothing
suggests the Court was unaware of this fact when made its drug quantity calculation.
Moreover, omitting that time frame yields the same estimated drug quantity range. Thus,
we are not “left with the definite and firm conviction that a mistake has been committed.”
Grier, 475 F.3d at 570.
10
crack cocaine sells for between $20 and $50, it is reasonable to infer that Carter sold
more than one gram per month to support himself.6
Because the District Court’s evidentiary basis for its drug quantity determination
met the minimum standard of reliability required at sentencing, and because its findings
were not clearly erroneous, we will affirm the judgment of the District Court.
III
For the foregoing reasons, we will affirm the District Court’s judgment of
conviction and sentence.
6
Carter’s comparison between his case and Reyes is misplaced. In Reyes, the
district court relied on the length of the conspiracy and the testimony of a single
prosecution witness to estimate the relevant drug quantity, but, as even the Government
there had conceded, that witness’s testimony “[could not] support the [district] court’s
finding” regarding drug quantity. 930 F.3d at 315. Unlike Reyes, the relevant testimony
here is not from a prosecution witness, but the defendant himself, and no party has
challenged the weight of his testimony concerning the duration of his drug dealing.
Moreover, the District Court here had more than Carter’s testimony: it had evidence
regarding the quantity of drugs he sold and the amount he possessed when he was
apprehended to corroborate its drug estimate.
11