United States v. Settle

Filed: March 19, 1997
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-5799
(CR-94-230)
United States of America,
Plaintiff - Appellee,
versus
Lee Marvin Settle, etc.,
Defendant - Appellant.
O R D E R
The Court amends its opinion filed February 21, 1997, as
follows:
On page 2, first full paragraph, line 6 -- the citation to
Bailey v. United States is corrected to begin "___ U.S. ___, 116
S.Ct. 501 . . . ."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5799
LEE MARVIN SETTLE, a/k/a Supreme,
a/k/a Larry McCrae,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., Chief District Judge.
(CR-94-230)
Argued: December 4, 1996
Decided: February 21, 1997
Before HALL, MURNAGHAN, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: David Bruce Freedman, WHITE & CRUMPLER,
Winston-Salem, North Carolina, for Appellant. Paul Alexander Wein-
man, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee. ON BRIEF: Walter C. Holton, Jr., United States Attor-
ney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Lee Marvin Settle entered a guilty plea to conspiracy to possess
crack cocaine with intent to distribute, 21 U.S.C.A. § 846 (West
Supp. 1996), and to using or carrying a firearm during and in relation
to a drug trafficking crime, 18 U.S.C.A. § 924(c) (West Supp. 1996).
He challenges his § 924(c) conviction in light of Bailey v. United
States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). He also
contests his 168-month sentence, alleging that he was wrongly sen-
tenced under the penalties for crack offenses.
Settle pled guilty to selling crack with co-defendant Larry Johnson
in Reidsville, North Carolina, from June 1993 until February 1994,
and to using and carrying a firearm in relation to a drug trafficking
crime on or about November 3, 1993.
During the guilty plea hearing,1 the government summarized the
evidence which supported the guilty plea. The government had a wit-
ness who would testify that Settle carried a nine millimeter pistol to
protect his drug trade.2 In addition, the government had witnesses to
_________________________________________________________________
1 The parties originally failed to provide, for the record, a copy of the
guilty plea hearing. Fed. R. Crim. P. 11(g) requires:
A verbatim record of the proceedings at which the defendant
enters a plea shall be made and, if there is a plea of guilty or nolo
contendere, the record shall include, without limitation, the
court's advice to the defendant, the inquiry into the voluntariness
of the plea including any plea agreement, and the inquiry into the
accuracy of a guilty plea.
At the court's insistence, the parties provided the court with the plea
hearing. The plea hearing is essential for proper review of the validity of
the guilty plea and must be included in the record on appeal.
2 The police found a 9 mm pistol as well as a picture of Settle with a
pistol and with other drug dealers in a safe in a condominium where he
had lived with his girlfriend during the conspiracy.
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an incident where Settle pointed a gun at a rival drug dealer and
stated, "I was there first. Once you claim a spot, it's mine."
After the government presented its summary of the evidence, Set-
tle's attorney was given a chance to object to the government's sum-
mary of the evidence. Settle's attorney objected only to the parts of
the government's summary of evidence which went to the amounts of
drugs involved. Neither Settle nor his attorney objected to the govern-
ment's characterizations of Settle's conduct in relation to his use of
a firearm.
While Settle's appeal was pending, the Supreme Court held in
Bailey that to sustain a conviction for the "use" of a firearm during
and in relation to a drug trafficking offense, the government must
show "active employment" of the firearm. Bailey applies retroac-
tively. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Because Settle
did not contest the validity of his guilty plea in the district court, the
issue is reviewed for plain error. United States v. Olano, 507 U.S. 725(1993).
Under a plain error standard, Settle's plea should be upheld. The
evidence indicates that Settle possessed a gun to protect his drug
trade, and that he used the gun to threaten other drug dealers. Such
conduct is active employment of a gun and satisfies that definition of
"use" in Bailey.
Settle also contends that he should have been sentenced under the
penalties for cocaine offenses instead of the more severe penalties for
crack offenses; he relies on United States v. Davis, 864 F. Supp. 1303(N.D. Ga. 1994). Settle acknowledges that this court explicitly
rejected the reasoning of Davis in United States v. Fisher, 58 F.3d 96,
99 (4th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 329, 133 L.Ed.2d
229 (1995), but asks that Fisher be reconsidered. Settle argues that
Fisher failed to resolve the ambiguity in § 841(b)(1)(A) because
cocaine and cocaine base are the same substance. In his view, "under
any rational construction of the statute a portion must be rendered
essentially meaningless," and therefore he "should be entitled to the
rational interpretation which applies the most lenient penalty to him."
A panel cannot overrule the decision of a prior panel in this circuit.
Brubaker v. Richmond, 943 F.2d 1363, 1381-82 (4th Cir. 1991). We
3
believe Fisher settled this issue, and we decline Settle's invitation to
reconsider the holding in Fisher.
There is sufficient evidence in the record to support Settle's guilty
plea, and his sentence is affirmed.
AFFIRMED
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