United States v. Purnell ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4786
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD EDWARD PURNELL, a/k/a Smoke,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-04-53)
Submitted: February 26, 2008 Decided: March 12, 2008
Before SHEDD and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Robert C. Stone, Jr., Martinsburg, West Virginia, for Appellant.
Thomas E. Johnston, United States Attorney, Paul T. Camilletti,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Appellant Richard Edward Purnell was
convicted of conspiracy to distribute narcotics, in violation of 21
U.S.C.A. §§ 841(a)(1), 846 (West 1999 & Supp. 2007) (Count One),
receiving and possessing an unlawful firearm, in violation of 26
U.S.C. §§ 5841, 5861(c), 5871 (2000) (Count Two), eight counts of
distributing crack cocaine, in violation of 21 U.S.C.A.
§§ 841(a)(1), (b)(1)(C) (Counts Three, Nine, Ten, Eleven, Twelve,
Thirteen, Fourteen and Sixteen), and, of relevance to this appeal,
two counts of using and carrying a firearm during and in relation
to a drug trafficking crime, in violation of 18 U.S.C.
§§ 924(c)(1)(A), (c)(1)(B)(I), (ii) (2000) (Counts Four and
Fifteen). Purnell makes several challenges to Counts Four and
Fifteen. Because there was insufficient evidence supporting the
two convictions, we vacate the convictions and sentences. As a
result, we will not address the other arguments Purnell raised on
appeal.
With respect to Counts Four and Fifteen, the jury found
Purnell guilty of using and carrying a firearm during and in
relation to a drug trafficking offense. Purnell was found to have
used and carried the firearms at issue because he traded crack
cocaine for the firearms. At the close of the Government’s case,
Purnell moved for a judgment of acquittal on both counts, arguing
that bartering drugs for firearms does not constitute using or
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carrying a firearm under § 924(c). The court denied Purnell’s
motion.
We review the district court’s decision to deny a Rule 29
motion de novo. United States v. Smith, 451 F.3d 209, 216 (4th
Cir.), cert. denied, 127 S. Ct. 197 (2006). Where, as here, the
motion was based on a claim of insufficient evidence, “[t]he
verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942);
Smith, 451 F.3d at 216. This court “can reverse a conviction on
insufficiency grounds only when the prosecution’s failure is
clear.” United States v. Moye, 454 F.3d 390, 394 (4th Cir.)
(internal quotation marks and citation omitted), cert. denied, 127
S. Ct. 452 (2006).
While this appeal was pending, the Supreme Court issued
Watson v. United States, 128 S. Ct. 579 (2007). In Watson, the
Supreme Court reversed the defendant’s conviction for use of a
firearm in furtherance of a drug trafficking offense, which was
predicated on the defendant’s receipt of a firearm in exchange for
drugs. Watson, 128 S. Ct. at 582, 586. Building on the Court’s
jurisprudence in Smith v. United States, 508 U.S. 223 (1993), and
Bailey v. United States, 516 U.S. 137 (1995), the Court ruled that
“a person does not ‘use’ a firearm under § 924(c)(1)(A) when he
receives it in trade for drugs.” Watson, 128 S. Ct. at 586.
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Because of the Supreme Court’s holding in Watson, we must
find the evidence supporting Counts Four and Fifteen was
insufficient. Accordingly, while we affirm the convictions and
sentences for Counts One, Two, Three, Nine, Ten, Eleven, Twelve,
Thirteen, Fourteen and Sixteen, we vacate the convictions and
sentences for Counts Four and Fifteen. We remand to the district
court to enter an amended judgment consistent with this opinion.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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