United States v. Reed

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-40771
Summary Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee
versus
MARK WAYNE REED
Defendant - Appellant
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Appeal from the United States District Court
for the Eastern District of Texas
(4:95-CR-17)
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July 1, 1996
Before: Smith, Benavides, and Dennis, Circuit Judges.
PER CURIAM:*
Mark Wayne Reed was convicted following a jury trial of possession of a firearm by a felon
(count one), possession of a controlled substance with intent to distribute (count two), and use or
carrying a firearm during and in relation to a drug-trafficking crime (count three). He was sentenced
to a total term of imprisonment of 295 months, a five-year period of supervised release, and a $150
special assessment. The defendant appeals his conviction based on an alleged Fourth Amendment
violation and insufficiency of the evidence for counts one and three. We reverse the conviction for
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
count three, and affirm the convictions for counts one and two.
Reed first argues that the district court erred in denying his motion to suppress evidence based
on the failure of the officers who entered his home to knock and identify themselves. At an
evidentiary hearing on the motion to suppress, Officer Flowers testified that after midnight on April
10, 1995, he arrived with nine or ten other Texas-state police officers at Reed’s mobile home
residence. Flowers had obtained a search warrant, classified as a “hazardous warrant.” At the
residence they found a gas station cord which they suspected was designed to alert the inhabitants
of the residence if someone drove over it. The officers broke open the front door and then yelled that
it was the police with a search warrant.
The officers discovered Reed and another man asleep. Five guns were located under that
mattress, and a semi-automatic weapon was found in a drawer underneath the headboard on Reed’s
side of the bed. In another room, a locked gun cabinet contained methamphetamine, a sawed-off
shotgun, and six other guns.
Flowers testified that he did not knock before entering based on his prior knowledge of Reed,
who had previously attempted to escape from police officers through a trap door in the floor of his
mobile home. Flowers testified that based on his experience, when a person is in possession of
narcotics and the police arrive, the person will attempt to dispose of the narcotics.
Reed argues that the district court erred in denying his motion to suppress. He maintains that
the search of his residence violated the Fourth Amendment because the officers failed to knock and
identify themselves prior to forcibly entering his home. We review the district court’s findings
following a suppression hearing for clear error. United States v. Inocencio, 40 F.3d 716, 721 (5th Cir.
1994).
In Wilson v. Arkansas, 115 S. Ct. 1914, 1915 (1995), the Supreme Court examined the
common law of search and seizure, holding that the “common law ‘knock and announce’ principle
forms a part of the reasonableness inquiry under the Fourth Amendment.” The Court noted that “in
some circumstances an officer’s unannounced entry into a home might be unreasonable under the
Fourth Amendment,” and left it to the lower courts to determine those circumstances. Id. at 1918.
The defendant bears the initial burden of establishing that an unannounced entry occurred.
United States v. Fike, __F.3d__ (5th Cir. May 7, 1996, No. 93-1797), 1996 WL 229346 at *6. If
the defendant makes this showing, the burden shifts to the government to justify the search. Id. The
“knock and announce” rule serves several fundamental interests, including “‘(1) protecting law
enforcement officers and household occupants from potential violence; (2) preventing the unnecessary
destruction of private property; and (3) protecting people from unnecessary intrusion into their
private activities. Id. (quoting United States v. Sagaribay, 982 F.2d 906, 909 (5th Cir.), cert. denied,
114 S. Ct. 160 (1993)).
The district court found that the officers’ conduct was reasonable because an alarm would
sound if someone approached Reed’s residence, a basis existed for believing that the officers might
be endangered if they knocked, and a basis existed for believing that evidence would, in fact, be
destroyed. The district court’s factual findings were not clearly erroneous. Reed previously had
attempted to escape from his mobile home while being pursued by the police. Reed’s prior criminal
history included possession of a prohibited weapon. The officers unannounced entry intro Reed’s
home was not unreasonable under the Fourth Amendment.
Reed appeals the district court’s denial of his motion for a judgment of acquittal as to count
one, possession of a firearm by a felon. The appellant failed to renew his motion for a judgment of
acquittal at the close of all of the evidence, so his argument that there was insufficient evidence to
support the conviction is reviewable only to determine whether there was a manifest miscarriage of
justice. United States v. Laury, 49 F.3d 145, 151 (5th Cir.), cert. denied, 116 S. Ct. 162 (1995).
Section 922(g)(1) requires proof that the defendant had a prior felony conviction, that the
defendant possessed the firearm, and that the firearm traveled in interstate commerce. United States
v. Wright, 24 F.3d 732, 734 (5th Cir. 1994). The possession of a firearm may be actual or
constructive, defined as knowing ownership, control, or dominion over the item itself or over the
premises where the item is located. Id. Reed admitted to the presence of “several firearms” in the
residence in his written statement. The night of his arrest, he produced the key to the gun cabinet
which contained a Cobray .45 handgun, among other weapons. Reed admits to two prior felony
convictions. An ATF agent testified at trial that the gun was manufactured in Tennessee, indicating
that it traveled in interstate commerce. The jury heard sufficient evidence to convict Reed for
possession of a firearm by a felon.
Reed also appeals his conviction on count three, the use or carrying of a firearm during a
drug-trafficking crime. The government concedes that it failed to establish “use” of the firearm during
a drug-trafficking offense. In Bailey v. United States, 116 S. Ct. 501, 505 (1995), the Supreme Court
defined “use” under the statute as “an active employment of the firearm by the defendant, a use that
makes the firearm an operative factor in relation to the predicate offense.” Because the record is
devoid of evidence of an active employment or carrying of a firearm, we reverse the appellant’s
conviction on count three as a manifest miscarriage of justice.
The reversal of Reed’s sentence for count three will not affect his sentences for counts one
and two, so we need not remand the case for resentencing. Reed’s sentence consisted of 120-month
term of imprisonment on count one to be served concurrently with a 235-month term of imprisonment
on count two. The 60-month term for count three was to be served consecutively with the other
sentences. See 18 U.S.C. § 924(c)(1) (requiring that term of imprisonment imposed for violation of
§ 924(c)(1) shall not run concurrently with any other term of imprisonment.)
Reed was sentenced as a armed career criminal under the provisions of 18 U.S.C. § 924(e)
and pursuant to U.S.S.G. § 4B1(b)(B), which provides for a mandatory minimum total offense level
of 33. Since Reed’s offense level on counts one and two did not exceed this minimum, he was
sentenced using an offense level of 33. The reversal of count three could result upon a remand in a
two level increase in the offense level for counts one and two, however, the total offense level would
still not top the minimum of 33 under the armed career criminal provision. Thus the reversal can have
no effect on the sentencing for counts one and two making a remand for resentencing unnecessary.
Therefore, we AFFIRM the convictions and sentences for counts one and two, and
REVERSE the conviction and sentence for count three.