United States v. Hanberry ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5110
BASHAWN LEE HANBERRY, a/k/a BO,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5111
DANNY RAY WELLINGTON, a/k/a
D Boy,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5118
RONALD EMANUEL HANBERRY,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5119
EDDIE JEROD HESTER, a/k/a E-Dog,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5120
RICKY FRAZELLAS PUREFOY, a/k/a
Little Ricky,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, Sr., District Judge.
(CR-94-185)
Argued: February 2, 1996
Decided: March 20, 1996
Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.
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Affirmed in part and remanded in part by unpublished per curiam
opinion.
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COUNSEL
ARGUED: Thomas Kieran Maher, RUDOLPH & MAHER, Chapel
Hill, North Carolina, for Appellant Wellington; William Carlton
Ingram, Jr., FLOYD, ALLEN & JACOBS, Greensboro, North Caro-
lina, for Appellant Bashawn Hanberry; Eric David Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant
Ronald Hanberry; Ernest Raymond Alexander, Jr., Greensboro, North
Carolina, for Appellant Hester; Richard Allen Elmore, PFAFF,
ELMORE & ALBRIGHT, Greensboro, North Carolina, for Appellant
Purefoy. David Bernard Smith, Assistant United States Attorney/
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Senior Litigation Counsel, Greensboro, North Carolina, for Appellee.
ON BRIEF: William E. Martin, Federal Public Defender, Nathan D.
Beamguard, First Year Law Student, Wake Forest School of Law,
Greensboro, North Carolina, for Appellant Ronald Hanberry. Walter
C. Holton, Jr., United States Attorney, Greensboro, North Carolina,
for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Bashawn Lee Hanberry, Danny Ray Wellington, Ronald Emanuel
Hanberry, Eddie Jerod Hester, and Ricky Frazellas Purefoy (collec-
tively, "Appellants") appeal their convictions of conspiracy to possess
with the intent to distribute and to distribute cocaine base, see 21
U.S.C.A. § 846 (West Supp. 1995), and related offenses1 as well as
their resulting sentences. The only meritorious issue presented for
review is the contention that in light of Bailey v. United States, 116
S. Ct. 501 (1995), further proceedings before the district court are
warranted with respect to Bashawn Hanberry's and Hester's convic-
tions pursuant to 18 U.S.C.A. § 924(c)(1) (West Supp. 1995). Accord-
ingly, we affirm Appellants' convictions and sentences--except for
the § 924(c)(1) convictions, which we remand for further proceed-
ings.
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1 Purefoy was also convicted of a substantive charge of possession of
cocaine base with the intent to distribute. See 21 U.S.C.A. § 841(a)(1)
(West 1981). Bashawn Hanberry and Hester were convicted of using or
carrying a firearm during and in relation to a drug trafficking offense.
See 18 U.S.C.A. § 924(c)(1) (West Supp. 1995). And, Ronald Hanberry
was convicted of possessing ammunition after having been convicted of
a crime punishable by imprisonment for a term exceeding one year. See
18 U.S.C.A. § 922(g)(1) (West Supp. 1995).
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I.
Viewed in the light most favorable to the Government, Glasser v.
United States, 315 U.S. 60, 80 (1942), the evidence presented at trial
demonstrated that Appellants participated in a conspiracy to distribute
cocaine base in the Oxford Manor area of Durham, North Carolina
that centered principally around a social organization known as the
"Pimps." Bashawn and Ronald Hanberry became suppliers for the
conspiracy following the 1991 death of the former supplier, their
elder brother Jamal. Numerous coconspirators testified concerning the
Hanberrys' distribution of cocaine and cocaine base to the remaining
Appellants and to instances of conversion of cocaine into cocaine
base; these witnesses also testified about further preparation and dis-
tribution activities by Wellington, Hester, and Purefoy. In addition,
several coconspirators testified regarding Appellants' involvement
with firearms. A law enforcement officer testified as to the participa-
tion of Bashawn Hanberry and Hester in cocaine base transactions
entered into with the officer while he was acting in an undercover
capacity. And, another law enforcement officer testified concerning a
1993 felony traffic stop of a vehicle driven by Hester that resulted in
the seizure of cocaine base and two firearms. The jury also was pres-
ented with various documents, firearms, and ammunition seized pur-
suant to warrants executed at the Hanberrys' residences.
II.
Appellants raise several issues with respect to their convictions,
none of which merits extended consideration. The evidence was suffi-
cient to sustain the conspiracy convictions of Purefoy and Hester as
well as Ronald Hanberry's conviction for possessing ammunition
after having been convicted of a crime punishable by imprisonment
for a term exceeding one year. See Glasser, 315 U.S. at 80. Congress
did not exceed its power under the Commerce Clause in enacting 18
U.S.C.A. § 922(g)(1) (West Supp. 1995). See Scarborough v. United
States, 431 U.S. 563, 567-78 (1977); United States v. Sorrentino, 72
F.3d 294, 296-97 (2d Cir. 1995). And, the district court did not
deprive Bashawn Hanberry of a fair trial by admonishing a Govern-
ment witness, outside the presence of the jury, to tell the truth. See
Paylor v. United States, 404 F.2d 1263, 1263-64 (D.C. Cir. 1968) (per
curiam).
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One issue, however, warrants expanded discussion. While this
appeal was pending, the Supreme Court decided Bailey v. United
States, 116 S. Ct. 501 (1995). The Bailey Court held that to sustain
a conviction under the "use" prong of § 924(c)(1), the Government
must prove that a defendant actively employed a firearm during and
in relation to the predicate drug trafficking offense and that evidence
of mere proximity or accessibility is insufficient to support a convic-
tion. Id. at 505-06. Thus, we are called upon to consider whether
application of the standard enunciated in Bailey requires us to vacate
Bashawn Hanberry's and Hester's § 924(c)(1) convictions under a
plain error standard.
Unfortunately, we are not in a position to best decide this question
in the first instance. The issue was not addressed in the parties' briefs;
the record is voluminous, and not all of the relevant portions were
reproduced in the joint appendix. Consequently, we remand these
§ 924(c)(1) convictions for further proceedings before the district
court.
III.
The sentencing issues presented by Appellants are meritless. The
factual findings by the district court that Wellington and Hester
should be held accountable for quantities of cocaine base distributed
by other members of the conspiracy are not clearly erroneous. See
United States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992). The
rule of lenity does not require that Appellants' sentences be calculated
using cocaine rather than cocaine base. See United States v. Fisher,
58 F.3d 96, 99 (4th Cir.), cert. denied, 116 S. Ct. 329 (1995). And,
the 100:1 treatment of cocaine base to cocaine for sentencing pur-
poses is not unconstitutional. United States v. D'Anjou, 16 F.3d 604,
612 (4th Cir.), cert. denied, 114 S. Ct. 2754 (1994). Finally, Bashawn
Hanberry's and Hester's argument that the Government waived its
right to seek a two-level sentencing enhancement for possession of a
firearm is not properly before us since this enhancement becomes
applicable only if the § 924(c)(1) convictions are vacated. See United
States Sentencing Commission, Guidelines Manual , §§ 2D1.1(b)(1);
2K2.4, comment. (n.2) (Nov. 1994).
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IV.
For the reasons set forth above, we remand for the district court to
consider in the first instance whether Bashawn Hanberry's and Hes-
ter's § 924(c)(1) convictions must be vacated in light of Bailey and
for such other proceedings as may be appropriate in light of its deci-
sion. We affirm Appellants' convictions and sentences in all remain-
ing respects.2
AFFIRMED IN PART; REMANDED IN PART
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2 We have considered the remaining arguments presented by Appel-
lants and find them to be without merit.
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