United States v. Bob ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-6044
BERNARD BOB,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-97-209, CA-00-78)
Argued: February 24, 2003
Decided: March 27, 2003
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Judge Michael and Judge King joined.
COUNSEL
ARGUED: Brian McMahon, Student Counsel, Appellate Litigation
Program, GEORGETOWN UNIVERSITY LAW CENTER, Wash-
ington, D.C., for Appellant. S. David Schiller, Assistant United States
Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Steven H.
Goldblatt, Director, Robert L. Moore, Student Counsel, Appellate Lit-
igation Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Paul J. McNulty, United States
Attorney, Richmond, Virginia, for Appellee.
2 UNITED STATES v. BOB
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
NIEMEYER, Circuit Judge:
Bernard Bob, having been convicted on 13 counts charging him
with drug possession with intent to distribute, simple drug possession,
using or carrying of firearms during and in relationship to drug traf-
ficking, and illegal possession of firearms, was sentenced to a total of
240 months’ imprisonment. We affirmed his convictions and sen-
tences in 1998.
On Bob’s petition under 28 U.S.C. § 2255, the district court
vacated the convictions on some counts and modified his sentence.
On appeal from the district court’s order, Bob now maintains (1)
that the district court erred in not concluding that he received ineffec-
tive assistance of counsel because of his counsel’s failure to challenge
the sufficiency of evidence for his convictions of using and carrying
firearms during or in relationship to a drug trafficking crime; and (2)
that plain error was committed in sentencing him because the district
court improperly enhanced his sentences on the 18 U.S.C. § 922(g)
convictions, which should have been treated as an underlying offense
to his § 924(c) convictions, and thereby that the court doubly counted
his firearms-possession conduct.
For the reasons that follow, we affirm.
I
Acting on a confidential informant’s statement that Bernard Bob
sold drugs at his residence at 2204 Parkwood Avenue, Richmond,
Virginia, police obtained a search warrant and executed it on April
16, 1997. At the time when the warrant was to be executed, Bob was
in the backyard with other persons. After the police secured Bob and
the others, they proceeded to conduct the search of Bob’s residence.
UNITED STATES v. BOB 3
On the first floor, police discovered three firearms and firearms-
related items, such as cleaning kits. The firearms included a .38 Colt
revolver loaded with six rounds lying on the couch; a 12-gauge Rem-
ington shotgun with several rounds loaded and one round chambered,
leaning against the wall, barrel-end down and stock-end up with the
safety set to the off position; an unloaded, unregistered sawed-off
shotgun behind a bar out of sight, with shells for the gun sitting
nearby. The police also discovered a small amount of marijuana and
cocaine, drug paraphernalia such as aluminum foil, plastic baggies,
and electronic scales, as well as a radio scanner set to the police fre-
quency. In Bob’s coat pocket, police found the keys for all the rooms
in the residence. The second floor of the residence contained a sepa-
rate apartment opened by using the keys found in Bob’s coat pocket.
There the police discovered five bundles of cash, totaling $5,000, 2.58
grams of heroin, and additional drug paraphernalia such as foil, bag-
gies, latex gloves, and the cover to the scales found downstairs. On
both floors, the police found documents that were linked to Bob. In
searching Bob himself, the police discovered $671 in cash, a pager,
and a cell phone.
During the period while Bob was secured and the search was being
conducted, Bob admitted to having previously used cocaine, but he
stated that he no longer used drugs. He also stated that the sawed-off
shotgun did not have a firing pin and that he kept the Remington shot-
gun, which belonged to him, "because he needed it for protection
because it was a bad neighborhood."
Bob was indicted and convicted on three counts of possession with
intent to distribute a controlled substance; three counts of possession
of a controlled substance; three counts of using or carrying a firearm
during and in relation to a drug trafficking offense, in violation of 18
U.S.C. § 924(c); three counts of possession of firearms and/or ammu-
nition by a controlled substance user, in violation of 18 U.S.C.
§ 922(g)(3); and one count for possession of a sawed-off shotgun.
The district court sentenced Bob to ten years’ imprisonment on
each of the three possession-with-intent-to- distribute counts, all to
run concurrently; one year’s imprisonment on each of the three
possession-of-controlled-substance counts, all to run concurrently; ten
years’ imprisonment for each of the three § 922(g)(3) counts as well
4 UNITED STATES v. BOB
as for the sawed-off shotgun count, all to run concurrently; five years’
imprisonment for the two § 924(c) counts relating to the .38 Colt
revolver and the Remington, both to run concurrently; and ten years’
imprisonment for the § 924(c) count relating to the sawed-off shot-
gun, to run consecutive to the other sentences. Bob’s total sentence,
therefore, was 240 months’ imprisonment. In sentencing Bob, the dis-
trict court enhanced his offense level by four levels under U.S.S.G.
§ 2K2.1(b)(1)(a) (1997) because the firearms that were possessed in
violation of § 922(g) were possessed in connection with another fel-
ony offense, and an additional one-level enhancement on the same
counts under U.S.S.G. § 2K2.1(b)(1)(b)(5) (1997) because Bob pos-
sessed three guns.
On direct appeal of his convictions and sentence, Bob raised three
issues: (1) the refusal of the district court to suppress evidence based
on violations of the particularity clause of the Fourth Amendment, the
knock and announce rule, and Miranda; (2) the insufficiency of evi-
dence based on a failure to establish that Bob possessed the drugs or
the firearms; and (3) an erroneous sentence enhancement for obstruc-
tion of justice. We rejected these arguments and affirmed in an
unpublished opinion dated December 29, 1998.
A year later, Bob filed a petition under § 2255, raising four claims:
(1) the ineffective assistance of counsel in failing to object to the suf-
ficiency of evidence to satisfy the "use or carry" requirement as inter-
preted in Bailey v. United States, 516 U.S. 137 (1995), for any of the
three § 924(c) convictions; (2) the ineffective assistance of counsel
based on his failure to object to three counts of § 922(g) because the
simultaneous possession of three firearms should only have consti-
tuted one offense; (3) the violation of the Double Jeopardy Clause by
subjecting him both to three counts of possession with intent to dis-
tribute and to three counts of the lesser included offense of posses-
sion; and (4) the violation of the right to grand jury indictment
because the indictment was not signed by the grand jury foreman.
Shortly after filing his petition, Bob filed an "Addendum," which
asserted additionally that his sentence was improperly calculated
under the Sentencing Guidelines.
In ruling on Bob’s § 2255 petition, the district court affirmed the
§ 924(c) convictions based on the .38 Colt revolver and the Reming-
UNITED STATES v. BOB 5
ton shotgun, but vacated the § 924(c) based on the sawed-off shotgun
count. With regard to the Colt-revolver and the Remington-shotgun
counts, the court explained that "both weapons were openly displayed
in the area where Bob consummated his drug sales and Bob acknowl-
edged that he kept the loaded Remington where it was found for his
protection. A rational juror could conclude that Bob openly displayed
the Remington and .38 caliber revolver to intimidate his customers."
With regard to the sawed-off shotgun, however, the court explained
that "[a]t most, the evidence suggested that Bob placed the sawed-off
shotgun within the bar so that he could ‘grab and use it if necessary.’
The Supreme Court has held that the definition of use does not
include such ‘placement for later active use.’" The court also noted
that the government had not proved that Bob "carried" the sawed-off
shotgun because "‘carry’ requires more than the fact that the defen-
dant had, at some time previously, carried the firearm to a particular
location." Even though the court vacated the § 924(c) conviction for
using or carrying the sawed-off shotgun, it concluded that Bob had
not been denied the effective assistance of counsel by his counsel’s
failure to challenge under Bailey the remaining § 924(c) convictions
(involving the Colt and Remington firearms).
Without objection from the government, the district court also
vacated two of Bob’s three § 922(g) convictions as duplicative and
found that Bob was denied the effective assistance of counsel for his
counsel’s failure to raise this issue. Also, without objection from the
government, the district court vacated the three convictions for drug
possession because they merged into the offenses for possession with
intent to distribute. The court rejected Bob’s claim that the indictment
was not signed by the grand jury foreman.
On the sentencing issues raised in Bob’s Addendum, which the
court received because it found the Addendum to be timely filed, the
court rejected all of Bob’s contentions because Bob could not estab-
lish cause and prejudice to overcome his failure to raise these issues
on direct appeal.
The district court issued an order amending its judgment by vacat-
ing: the concurrent one-year sentences of imprisonment for simple
drug possession, the consecutive ten-year sentence for the use or car-
rying of a sawed-off shotgun, and the concurrent ten-year sentence for
6 UNITED STATES v. BOB
possessing a firearm in violation of § 922(g). The court also made
corresponding adjustments to the terms of supervised release.
This appeal followed.
II
For his principal argument on appeal, Bob contends that he was
denied effective assistance of counsel when counsel failed, on direct
appeal, to contend that the government’s evidence was insufficient
under Bailey v. United States, 516 U.S. 137 (1995), to convict him for
violations of 18 U.S.C. § 924(c). Section 924(c) punishes using or
carrying a firearm "during and in relation to" a drug trafficking crime.
In Bailey, the Supreme Court held that "use" as written in § 924(c)
required proof that the firearm be "actively employed" in the underly-
ing predicate offense. Finding insufficient evidence that merely
showed that a defendant possessed a firearm in close proximity to
drug trafficking, the Court nonetheless allowed that the "silent but
obvious and forceful presence of a gun" was sufficient to prove "use."
516 U.S. at 148.
To prove that he was denied effective assistance of counsel, Bob
must establish both that (1) counsel’s performance "fell below an
objective standard of reasonableness . . . under prevailing professional
norms" (performance prong), Strickland v. Washington, 466 U.S. 668,
688 (1984), and (2) this deficient performance prejudiced the defense
because "there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different" (prejudice prong), id. at 694.
During the government’s case against Bob for violation of
§ 924(c), the government proved (1) that a .38 Colt revolver and a
Remington rifle were in the first floor area of Bob’s residence; (2)
that the Remington shotgun was owned by Bob — indeed, he asserted
that he maintained it for "protection"; (3) that both illegal drugs and
drug paraphernalia were found on the first floor, which included digi-
tal scales and packaging material; (4) that the firearms were found in
plain sight and were loaded — indeed, the rifle was placed with its
stock up and its barrel-end down; (5) that the radio scanner on the
first floor was tuned to the police frequency; (6) that, apart from a
UNITED STATES v. BOB 7
kitchen table, a couple of chairs, and the couch on which the Colt
revolver rested, there was no other furniture on the first floor; and (7)
that the upstairs contained a locked apartment where more drugs,
$5,000, more drug paraphernalia and packaging, and the top of the
digital scales were located. The government also presented expert tes-
timony that drug dealers usually maintain a location for selling drugs
separate from the location where most of the money and drugs are
kept. The government’s expert also testified that drug dealers usually
try to keep a gun somewhere close to them. Finally, he testified that
the presence of packaging materials, digital scales, a radio scanner,
and other paraphernalia were indicative of drug distribution, adding
that "everything that is needed [for drug distribution] is basically here
in front of me," referring to items seized from Bob’s residence.
Bob argues that even if this circumstantial evidence shows that
drug trafficking occurred, it does not demonstrate that drug transac-
tions took place on the first floor or that, if they did, the firearms were
present in open view during these transactions. He contends that
"there is no evidence in this case that the guns were openly displayed
to anyone — no individual was present in this case during any drug
transaction."
We agree with Bob that the government presented no direct evi-
dence of a transaction on the first floor where the firearms were pres-
ent. But this does not preclude a jury’s consideration of circumstantial
evidence. See United States v. Jackson, 863 F.2d 1168, 1173 (4th Cir.
1989). And such evidence must be taken "in the light most favorable
to the prosecution." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The circumstantial evidence in this case would, we conclude, per-
mit a rational jury to find that Bob dealt drugs from the first floor of
his apartment and that the purchasers of the drugs were there where
the guns were displayed, concededly for Bob’s "protection." The gov-
ernment’s expert witness indicated that Bob’s residence was set up in
a manner that indicates it was used for drug dealing. The first floor
lacked furniture that one would expect in a living area and contained
digital scales and other drug paraphernalia separate from a locked
apartment on the second floor where the money was found, indicating
that drugs were sold on the first floor. He explained that through this
type of arrangement drug dealers are able to keep money secure from
8 UNITED STATES v. BOB
where drugs are sold. It is difficult to conceive that the first floor of
Bob’s residence was used for anything other than a drug "shooting
gallery" in which drugs were sold.
Once we conclude that a reasonable jury could find that the first
floor was a drug "shooting gallery" in which drugs were sold, the
presence of the firearms could readily be found. Bob himself told the
police that he maintained the shotgun for his protection. While he
indicated that the protection was necessary because he was in a rough
neighborhood, the circumstantial evidence would indicate the protec-
tion was also present to protect Bob’s drug trafficking operation in his
residence. At bottom, we conclude that "after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reason-
able doubt." Jackson v. Virginia, 443 U.S. at 319.
With this conclusion, we find that Bob cannot satisfy the prejudice
prong of the Strickland test for the ineffective assistance of counsel,
even if he could establish the performance prong. Accordingly, we
affirm the district court’s conclusion that "[b]oth weapons were
openly displayed in the area where Bob consummated his drug sales
and Bob acknowledged that he kept the loaded Remington where it
was found for his protection. A rational juror could conclude that Bob
openly displayed the Remington and .38 caliber revolver to intimidate
his customers."
III
Asserting plain error for the first time on appeal, Bob also contends
that his sentence included enhancements for gun possession and use
that resulted in impermissible double counting. He argues that under
U.S.S.G. § 2K2.4 cmt. n.2 (1997), the district court double counted
Bob’s weapons possession during sentencing when it enhanced his
sentence for his 18 U.S.C. § 922(g)(3) conviction through application
of offense-specific characteristics while simultaneously sentencing
him for his 18 U.S.C. § 924(c) convictions.
Even if we assume for discussion that the error that Bob claims
now for the first time is of constitutional magnitude in order for him
to raise it in this appeal from a § 2255 proceeding, see United States
UNITED STATES v. BOB 9
v. Addonizio, 442 U.S. 178, 186 (1979), we nonetheless reject the
argument on its merits.
The Application Notes for U.S.S.G. § 2K2.4 provide:
Where a sentence under this section [relating to § 924(c)
convictions] is imposed in conjunction with a sentence for
an underlying offense, any specific offense characteristic for
the possession, use, or discharge of an explosive or firearm
(e.g., § 2B3.1(b)(2)(A)-(F) (Robbery)) is not to be applied
in respect to the guideline for the underlying offense.
U.S.S.G. § 2K2.4 cmt. n.2 (1997). The flaw in Bob’s argument is that
his § 922(g) conviction was not the underlying or predicate offense
for his § 924(c) conviction. The underlying offense for the § 924(c)
conviction was drug trafficking.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.