United States v. Candisha S. Robinson , 997 F.2d 884 ( 1993 )

Opinion for the Court filed by Chief Judge MIKVA.

Dissenting opinion filed by Circuit Judge HENDERSON.

MIKVA, Chief Judge:

Candisha Robinson was convicted after a jury trial of numerous drug-related offenses including “us[ing] or carrfying] a firearm” during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). Ms. Robinson concedes that the evidence was sufficient to support a finding that she constructively possessed the unloaded derringer found in the locked trunk in her apartment, but argues that her conviction under section 924(c)(1) should be reversed because the evidence failed to establish that the gun was actually used during and in relation to the drug trafficking offenses for which she was convicted. Ms. Robinson also contends that the district court erroneously increased her sentence by two points on the grounds that she was a “supervisor” to a drug trafficking scheme, and erroneously imposed a $300 rather than a $200 special assessment fee. We agree with appellant, with respect to all three arguments, and therefore reverse her conviction under section 924(c) and remand to the district court for resentencing.

I.

According to the government’s evidence, on July 15, 1991, Officer Larry Hale approached appellant’s sister, Veloria Robinson, and told her that he wished to buy some crack cocaine. Veloria took Officer Hale to Apartment 3, 1722 West Virginia Avenue, N.E. and knocked on the door. When appellant Candisha Robinson opened the door, Veloria explained that Officer Hale was trying to get something. Candisha asked him what he wanted. Officer Hale said that he wanted a “twenty” and followed Veloria into the apartment. Officer Hale saw Veloria and Candisha go into the apartment’s one bedroom and observed Candisha hand Veloria a rock of crack cocaine. Veloria then gave the rock to Officer Hale in exchange for $20 in marked money.

The next evening, Officer Hale returned to the apartment. As he was walking up the steps, he was approached by a man named Kwarme Parker. Parker stated that Veloria was inside the apartment, but that he also lived in the apartment and could serve him. Parker went into the apartment while Officer Hale waited in the hallway outside the front door. When Parker returned to the hallway, he gave Officer Hale a small rock of crack cocaine in exchange for marked money.

About thirty minutes later, a search warrant was executed at the apartment. Inside a locked trunk in the bedroom closet, the police found a .22-caliber derringer and holster, a 1990 tax return signed by Candisha, a letter from Candisha’s employer, two rocks of crack cocaine weighing a total of 10.88 grams, $20 in marked money from the sale of cocaine made by Mr. Parker, and $42.80 in other cash. Other papers bearing appellant’s name were found in other parts of the bedroom, including a lease which identified appellant and another man as the principal lessees. A plastic cassette tape case was also found in the bedroom which contained a quantity of plastic ziplock bags.

At trial, the government called an expert witness, Detective David Stroud, who testified that the rock of cocaine in the locked trunk would have a $700-800 street value, as-ís, but a $1400 value if it was broken down into $20 chunks. With respect to the firearm found in the apartment, Detective Stroud characterized the .22-caliber derringer as a “second gun” — the kind of gun a drug dealer might hide on his person for use until he could get to his “real gun.” Mr. Stroud also testified that guns are generally used by drug dealers to protect themselves from rival drug dealers; the police, and employees within the organization.

When asked to describe a “crack house,” Detective Stroud explained that there are two basic varieties. In the first type of crack house, he said, drugs are “manufactured on the premises, cut up and bagged up for street-level distribution.” He added that “maybe in some cases they even sell drugs from the premises.” However, Detective Stroud noted, this would be taking “a very big risk because you’re inviting a raid ... unlike selling on the street.” In the other type of crack house, people come just to smoke the drug. “There may be some limited selling of the drug going on, and they even rent the pipes to you for $2 a pipe in some of them.”

Ms. Robinson took the stand in her defense. • She admitted that she leased the apartment and received rent money from her sister Veloria, Kwarme Parker, and Sharine McKinney. She also acknowledged that she owned the foot-locker in which the derringer and crack were found, and that she knew that Ms. McKinney used drugs, and that Mr. Parker was selling drugs (but not out of her apartment). Ms. Robinson insisted that she had no knowledge of the drugs or the derringer found in her footlocker. She explained that she had taken Mr. Parker in temporarily because he had no place to go, but had become upset with his drug-dealing and had given him two weeks to find somewhere else to stay. She admitted allowing him to use the footlocker to safeguard his money, but claimed that she tried to prevent him from bringing drugs into her apartment by searching him and inspecting the footlocker regularly. This account was corroborated in significant respects by the testimony of Ms. Bey and Ms. McKinney. Both of them testified that appellant refused to allow Mr. Parker to sell drugs from the apartment; Ms. McKinney specifically recalled that appellant often searched Mr. Parker when 'he entered the apartment to ensure that he was not carrying drugs.

Ms. Robinson presented an alibi for the distribution charge. She testified that she was not in the apartment on the evening of July 15 because she was spending the night with her boyfriend in a motel. Her boyfriend, Mr. Founteroy, corroborated this story by testifying that they spent the day together going fishing and then spent the night together at a hotel. This alibi was partially contradicted by Ms. McKinney, who testified that she thought appellant was home for part of the evening, until about 10 P.M., which was almost an hour after Officer Hale said he saw appellant recover drugs from the bedroom.

Lastly, appellant read to the jury a portion of the transcript from Veloria Robinson’s plea hearing. At the plea hearing, Veloria Robinson stated that it was her girlfriend, not appellant, who retrieved the crack that she sold to Officer Hale on July 15. In rebuttal, the government introduced testimony of an officer who stated that he was unable to find an original receipt for the hotel at which appellant and her boyfriend claimed they stayed on July 15.

Appellant Candisha Robinson was found guilty on all six counts of the indictment, including distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); possession with intent to distribute a quantity of cocaine base in excess of five grams, in violation of 21 U.S.C. § 841(a)(1) and (b)(l)(B)(iii); commission of the charged drug offenses within 1000 feet of a school, in violation of 21 U.S.C. § 860(a); maintenance of a building for the purpose of manufacturing, storing, distributing or using cocaine base, in violation of 21 U.S.C. § 856(a); and use or carrying of a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1).

Ms. Robinson submitted a post-verdict motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c) directed solely to the count charging her with violating section 924(c)(1). Judge Richey denied the post-verdict motion in a memorandum opinion and order filed on December 18, 1991. 779 F.Supp. 606. At the sentencing hearing, Judge Richey adopted the Probation Officer’s recommendation that Ms. Robinson’s offense level be increased by two, from 28 to 30, because the evidence suggested that she was a “supervisor” of the drug trafficking scheme. Ms. Robinson was sentenced to a total of 157 months imprisonment, a four year term of supervised release and a special assessment of $300.

II.

Ms. Robinson challenges the sufficiency of the evidence to support her conviction under section 924(c). See 18 U.S.C. § 924(c)(1). Ms. Robinson concedes that the evidence was sufficient to support a finding that she constructively possessed the derringer found in the locked trunk in her bedroom closet, but argues that the evidence failed to establish that she actually “used” the gun “during and in relation to” the drug trafficking offenses for which she was convicted — as required by section 924(c)(1). The government, for its part, does not argue that Ms. Robinson carried, brandished or otherwise used the derringer during or in relation to the distribution of the drugs to Officer Hale. Rather, the government argues that we should affirm Ms. Robinson’s conviction because Ms. Robinson’s apartment was a “crack house,” and in crack houses, the mere proximity of a gun to drugs is sufficient to support the inference that the defendant used the gun to protect the possession of the drugs.

When reviewing these respective claims, we are, of course, bound to view the evidence in the light most favorable to the government and respect the right of the jury to determine the credibility of witnesses, weigh evidence, and draw justifiable inferences of fact. United States v. Williams, 952 F.2d 418, 419 (D.C.Cir.1991). Indeed, it is well established that this Court must defer to the jury’s determination and affirm if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In our effort to determine whether there was sufficient evidence to support the essential elements of section 924(c), we turn first to the language of the statute. Section 924(c) states, in pertinent part:

Whoever, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime, be sentenced to imprisonment for five years.

On its face, section 924(c) conspicuously fails to criminalize mere possession of a firearm during and in relation to a drug trafficking offense; the statute reserves punishment only for those individuals who actually carry or “use” a firearm during and in relation to an illicit drug offense. Given the way section 924(c) is drafted, even if an individual intends to use a firearm in connection with a drug trafficking offense, the conduct of that individual is not reached by the statute unless the individual actually uses the firearm for that purpose. As explained succinctly in United States v. Bruce, 939 F.2d 1053, 1055 (D.C.Cir.1991), “Congress did not make it a crime to possess a gun with the intent to use it in relation to a drug trafficking crime. Instead, section 924(c) only makes it a crime to use a gun in relation to a drug trafficking crime.”

Initially, the distinction between intended use and actual use may appear to put quite a hurdle in the path of a prosecutor seeking a conviction under section 924(c), particularly in cases such as this, where the primary drug offense underlying the conviction is possession with the intent to distribute. (There is absolutely no evidence that the gun played any role in the distribution of drugs to Officer Hale.) As this Court remarked in Bruce, it can be “somewhat difficult analytically to determine how one goes about using a gun in relation to that crime.” Id. It is important to keep in mind, however, that even in cases where the underlying drug offense is possession with the intent to distribute, the government is not limited to evidence indicating that the defendant fired, brandished, or carried the firearm. Cf. United States v. Evans, 888 F.2d 891, 896 (D.C.Cir.1989), cert. denied, 494 U.S. 1019, 110 S.Ct. 1325, 108 L.Ed.2d 500 (1990). We have also identified numerous other factors which may be probative of actual use, including the accessibility of the firearm, the type of firearm, the number of firearms, the proximity of the firearm to the drugs, and whether the firearm was loaded or previously had been used. See United States v. Morris, 977 F.2d 617 (D.C.Cir.1992). Although these factors are not automatically determinative of actual use, they can help the government to prove, as it must, a “nexus ... between a particular drug offender and the firearm,” United States v. Long, 905 F.2d 1572, 1577 (D.C.Cir.1990), cert. denied, 498 U.S. 948, 111 S.Ct. 365, 112 L.Ed.2d 328 (1990), and that “the guns facilitate[d] the predicate offense in some way.” United States v. Jefferson, 974 F.2d 201, 205 (D.C.Cir.1992) (quoting United States v. Harris, 959 F.2d 246, 261 (D.C.Cir.1992)).

In this case, most of the factors we have identified in previous section 924(c) cases cut against the affirmance of appellant’s conviction. First, there is absolutely no evidence that Ms. Robinson has ever brandished or previously used the firearm found in the locked trunk. Cf. Evans, 888 F.2d at 896 (evidence that the gun was used to threaten a subordinate suggests actual use for purposes of section 924(c)); Jefferson, 974 F.2d at 207. Second, although it is unclear whether Ms. Robinson had the key to the lock on the trunk, the gun certainly was not easily accessible since it was in the bedroom closet in a locked footlocker. Thus, this case stands in sharp contrast to cases like Morris where the firearm was within “easy reach,” see Morris, 977 F.2d at 623, as well as Jefferson, where the appellant placed the gun in the back yard so that people who needed the gun in relation to drug activity could have easy access. Jefferson, 974 F.2d at 207 (admission that the gun was previously used to protect possession of drugs supported section 924(c) conviction).

Still, the government contends that the gun was used by Ms. Robinson to protect her stash of drugs in the locked trunk. We fail to see, however, how the gun — being in a locked trunk in a bedroom closet — would be of any help to Ms. Robinson in the event of an emergency. In order to brandish the gun, Ms. Robinson would have to run to the closet, unlock the trunk, open the trunk and grab the gun. See United States v. Derr, 990 F.2d 1330, 1337-38 (D.C.Cir.1993) (essential element of “use” under section 924(c) not established where the closet would have to be unlocked with keys before the gun would be accessible). Even at that point, the gun would be of virtually no use to Ms. Robinson since it was unloaded and there was no ammunition for it anywhere in the apartment. Cf. United States v. Anderson, 881 F.2d 1128, 1141 (D.C.Cir.1989) (“presence of loaded guns and ammunition” is pertinent evidence of actual use of firearms); Morris, 977 F.2d at 622 (“the fact that a gun is loaded strengthens the inference that it is actual use”). The fact that the gun was unloaded, locked away, and without ammunition anywhere on the premises, strongly suggests that Ms. Robinson had no intention of using the gun at that time.

Finally, we have specifically drawn distinctions between a small derringer, like the one at issue in this case, see Bruce, 939 F.2d at 1055, and a sawed-off shotgun, which we have recognized as a “formidable firearm” for the protection of a stash of drugs. Jefferson, 974 F.2d at 208. Even the government’s drug expert, Officer Stroud, confessed to the jury that the derringer recovered from the locked footlocker was not the type of gun a drug dealer ordinarily would use to protect a stash of drugs. It is also worthy of note that only one gun was found on the premises. While the use of a single gun can violate the statute, see Jefferson, 974 F.2d at 207, when evaluating the sufficiency of the evidence under section 924(c), we have expressly distinguished the possession of a single gun from the possession of an “arsenal” of weapons. See Anderson, 881 F.2d at 1141; Morris, 977 F.2d at 622.

In short, the possession of this single, unloaded .22-caliber derringer found in a locked trunk in a bedroom closet falls significantly short of the type of evidence we have held to establish actual use under the statute. In fact, we have reversed convictions under section 924(c) where there was stronger evidence against the defendant than that which is present here. In United States v. Bruce, 939 F.2d 1053 (D.C.Cir.1991), for example, we carefully explored the distinction between intended use and actual use under section 924(c), and concluded that although the police found a stash of drugs next to a fully loaded .22-caliber derringer in the pocket of the appellant’s trench coat, the evidence was insufficient to support the conviction under the statute. We noted that the appellant lived in the apartment with his mother and other family members, and that his gun was stored in. a belt buckle found inside a brown paper bag. We held that the only reasonable view of the evidence was that the appellant would use the gun only, when distributing drugs elsewhere, away from his family’s apartment, sometime in the future.

We also reversed the appellant’s conviction in United States v. Derr, 990 F.2d 1330 (D.C.Cir.1993), a case which is remarkably similar to this one — save the fact that a more powerful gun and ammunition were recovered by the police in that case. In Derr, an unloaded, holstered, .357 Magnum revolver was found by police in a locked closet in close proximity to nine rounds of .357 ammunition. The gun and ammunition were on top of a locked box containing 18.4 grams of crack cocaine and drug paraphernalia. Although the evidence in Derr firmly supported the conclusion that the appellant planned to use the gun in the future when distributing the drugs contained in the locked box, the inaccessibility of the gun in the locked closet, and the fact that the gun was unloaded, fatally undermined the government’s theory that the defendant actually used the firearm to protect his current possession of drugs.

Despite the precedent militating in favor of reversal here, and the obvious shortcomings in the record evidence, the government argues that a rational juror still could have inferred actual use of the firearm in this case because Ms. Robinson’s apartment was a “crack house.” In the government’s view, this case is analogous to United States v. Williams, 952 F.2d 418 (D.C.Cir.1991), and United States v. Anderson, 881 F.2d 1128 (D.C.Cir.1989), where convictions were upheld under section 924(c) because the proximity of the firearms to the drug paraphernalia in the “crack houses” strongly indicated that the guns were there to protect the occupants’ possession of the drugs.

We do not dispute that “crack houses” present unique considerations for the purposes of section 924(c). In crack houses, unlike ordinary residences, it is reasonable to assume that readily accessible guns found on the premises are being used to protect the drugs stored there. As we noted in Bruce, “[i]f guns are strewn around a ‘crack house’ in which drugs are stored,” one may infer “that the guns are there to protect the occupant’s possession” of drugs. Bruce, 939 F.2d at 1055. See also Jefferson, 974 F.2d at 208 (in the context of crack houses, “protection of a drug operation may be presumed from the amount of firepower discovered on the premises”).

Yet not every apartment or home that contains crack cocaine is a “crack house.” As the government’s expert explained, crack houses are much more than simply places where crack cocaine may be found. Crack houses are typically places where large quantities of crack cocaine are manufactured or where people come for the purpose of smoking the drug. Although the government asserts that Ms. Robinson’s apartment fits within the expert’s first definition of a crack house — a house maintained for the purpose of manufacturing large quantities of crack cocaine — none of the typical indicia of such a crack house was found on the premises. No scales, razor blades, equipment, or ingredients were found anywhere in the apartment. The small quantity of baggies found in the apartment is consistent with the evidence that some persons residing in the apartment were selling small amounts of crack cocaine, not with the operation of a “crack house” of the type described by the government’s expert witness. We also note that although the appellant was convicted of maintaining a building for the purpose of manufacturing, storing, distributing, or using cocaine base, in violation of 21 U.S.C. § 856(a), that statute is extremely broad and certainly not limited to “crack houses.”

More importantly, even if Ms. Robinson’s apartment was a “crack house,” the mere presence of one or more factors generally indicative of actual use of a firearm does not automatically establish “use” under the statute. See Bruce, 939 F.2d at 1055 (although the defendant constructively possessed a loaded gun which was accessible and in close proximity to drugs, the conviction under section 924(c)(1) was reversed because the evidence merely suggested intended, not actual, use). The dissent mistakenly suggests that the mere proximity of a gun to drugs is sufficient to support a conviction under section 924(c) where the underlying offense is a violation of 21 U.S.C. § 856(a). See Dissent at 896. In fact, according to the dissent’s logic, possession of any kind of gun anywhere in a crack house makes out a section 924(c) violation. That cannot be so. Where the evidence indicates that the gun recovered from a crack house was not actually used in relation to drug activity, a conviction under section 924(c) may not stand. Even in Anderson and Williams (which the dissent cites approvingly), the guns were not only in close proximity to drugs, but were also powerful, loaded and easily accessible.

Unlike Williams, this case does not involve a “slew of weapons [and] ammunition” in close proximity to a large quantity of drugs. Williams, 952 F.2d at 419. Nor does this case involve guns that are strewn around a crack house in easy reach or in plain sight, as in Anderson. Anderson, 881 F.2d at 1140. This case involves a single, unloaded, .22-caliber derringer stored in a locked trunk with a stash of drugs. Apparently, the gun was never brandished or even removed. And while the government is free to buttress its evidence of “use” by expert testimony identifying the indicia of a drug trafficking operation, see Morris, 977 F.2d at 622, in this case, the government’s expert witness hurt, rather than helped, the prosecutor’s case. Not only did the expert’s definition of a “crack house” wholly fail to describe Ms. Robinson’s apartment, the expert also explicitly stated that a derringer is not the type of weapon a drug dealer would generally rely upon to protect a stash of drugs. Under these circumstances, we are compelled to conclude that this case is controlled by our decisions in Bruce and Derr rather than Anderson and Williams. The only reasonable view of the evidence in this case is that the gun was intended for use at some future date.

We note that the dissent argues that Bruce and Derr are distinguishable from this case because Ms. Robinson was convicted of a distribution offense whereas the defendants in Bruce and Derr were not. Bruce, 939 F.2d at 1056; Derr, 990 F.2d at 1333. While, in general, it may be easier to establish actual use in cases where the underlying offense is distribution (as opposed to possession with intent to distribute), in this case, there is absolutely no evidence, aside from the mere proximity of the derringer to the stash of drugs, that the gun played any role whatsoever in Ms. Robinson’s distribution of drugs to Officer Hale.

If there were evidence that a loaded gun was in reach of Ms. Robinson at the time of distribution, this would be a different case. But there is no such direct evidence. The gun was unloaded and found the day after Ms. Robinson sold the crack. Plainly, the jury can not legitimately infer that even the unloaded gun was in Ms. Robinson’s reach the day before. That is just speculation.

Moreover, mere proximity of a gun to drugs is not, and has never been, sufficient to support a conviction under section 924(c) in this circuit. As we explained in Morris, the proximity of a gun to drugs “may cut either way, depending upon the particular facts.” Morris, 977 F.2d at 622. Nevertheless, the dissent contends that where distribution is an underlying offense, little regard need be given to whether the gun was loaded or unloaded, locked in a safe or in plain view; nor must we consider any of the other factors this Court has identified as relevant in section 924(c) cases. See Morris, 977 F.2d at 621-23 (and cases cited therein). The theory the dissent advances would require us to uphold a conviction under section 924(c) whenever the defendant is convicted of a distribution offense and the defendant’s gun is found in close proximity to drugs. In the dissent’s view, this practice would be justified, regardless of the surrounding circumstances, since it is possible to speculate that the defendant was “emboldened” by the possession of the gun to commit the distribution offense. See Dissent at 895-96 (quoting United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985)). Although this may, indeed, be the dissent’s preferred result, the dissent is unable to cite a single case in this circuit which holds, or even hints, that mere proximity of a gun to drugs, and nothing more, is sufficient to support a conviction under section 924(c). The result urged by the dissent is particularly remarkable given that all the other factors identified as relevant by this Court cut the other way. Perhaps this is the reason the government never pushed this novel argument on appeal.

III.

Ms. Robinson also challenges the district court’s sentencing determination. The district court explicitly adopted the Probation Officer’s recommendation that Ms. Robinson’s offense level should be increased by two points, from 28 to 30, because she played the role of a “supervisor” to a drug trafficking scheme. See U.S.S.G. § 3B 1.1(b). The Probation Officer based this conclusion on two factors: 1) Ms. Robinson had “allowed her apartment to be used for storing drugs and money,” and 2) Ms. Robinson had “advised her sister, Veloria Robinson, to get drugs for the undercover officer.”

The government now admits that the second factor relied upon by the Probation Officer is factually inaccurate. The government’s evidence clearly showed that it was Veloria Robinson who asked appellant to get the $20 rock for Officer Hale, not the other way around. Had the district court offered an additional explanation for its determination that appellant was a “supervisor,” other than its explicit adoption of the Probation Officer’s conclusion, reversal of the sentencing determination would not be so clear. However, the district court stated only that it adopted the Probation Officer’s report “as part of the court’s findings,” and cryptically added that “the defendant was at least in the apartment in question before the instant offense.” Since the court clearly relied on a misstatement of fact when adopting the Probation Officer’s conclusions, we remand for a reconsideration of whether Ms. Robinson was, in fact, subject to an increase in her offense level for being a “supervisor.”

Finally, Ms. Robinson objects to the district court’s failure to reduce her special assessment from $300 to $200 after it vacated Count Three and Count Seven of the original indictment. Since the government concedes that Ms. Robinson should have been subjected to only four special assessments of $50 each, pursuant to 18 U.S.C. § 3013(a)(2)(A), we direct the district court on remand to reduce the special assessment accordingly.

Reversed and remanded.