Opinion
No. 02-106-1 and 02-106-3
January 7, 2003
MEMORANDUM
On September 13, 2002, a jury found defendants Kevin Davis, Reginal Scott, and Kevin Minnis each guilty of drug and gun violations. Specifically, the jury found each of the defendants guilty of one count of possession with intent to distribute cocaine base or "crack" in violation of 21 U.S.C. § 841, and one count of carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924 (c). The jury also found defendant Kevin Minnis guilty of possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g). In its sentencing memorandum, the government contends that defendants Davis and Minnis face a seven year mandatory minimum sentence for brandishing their firearms pursuant to 18 U.S.C. § 924(c)(1)(A)(ii). For the following reasons, this court finds that defendant Kevin Davis is subject to a seven year statutory minimum sentence for violating section 924(c), and defendant Kevin Minnis faces a five year mandatory minimum sentence under 18 U.S.C. § 924(c)(1)(A)(i). I. Background
Defendant Minnis' sentence for possession with intent to deliver and carrying a firearm in relation to a drug trafficking crime is in addition to his fifteen year consecutive minimum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).
On the night of September 21, 2001, Philadelphia police officers arrested defendants Kevin Davis, Reginal Scott, and Kevin Minnis following a high speed car chase. At trial, the government argued that the defendants were traveling in a black Honda with two other individuals when shots were fired from their automobile. Police Officers in both marked and unmarked vehicles pursued the defendants to the 2200 block of Moore Street. Philadelphia Police Officer Brook testified at trial that he observed Kevin Davis exit the vehicle and attempt to flee the scene. According to Officer Brook, he pursued Davis until Davis stopped and pointed his weapon at the Officer. Officer Brook then fired his gun striking the defendant in the leg. At the scene, the police recovered a Hi-Point .380 caliber pistol from the area where Davis fell, along with nineteen packets of cocaine base or crack and $116.00 from Davis' clothes. Philadelphia Police Officer Bucceroni testified at trial regarding the arrest of defendant Minnis. According to Officer Bucceroni,
At the time when [Minnis] was coming out, I was coming around the right rear corner of the black Honda Accord. He is coming out, his right foot is on the pavement or the street. His left is in the car. He is coming out, he is facing, I want to say toward the south side of Moore Street. He was not really looking at me. In his right hand, which is close to — had it up by his face was a black semiautomatic weapon.
Tr. at 59, Sept. 11, 2002. Two other officers also testified that they saw Minnis holding a firearm in his hand as he exited the Honda. The police recovered from defendant Minnis a Heckler Koch USP 9mm semi-automatic pistol with laser sights, one magazine loaded with eleven live rounds of ammunition, as well as twelve packets containing cocaine base or crack. Neither defendant Davis nor Minnis testified at trial. After three days of testimony, the jury returned guilty verdicts on all counts.
II. Discussion 18 U.S.C. § 924(c) provides that:
any person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime —
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
When sentencing a defendant under 18 U.S.C. § 924(c)(1)(A), "[t]he statute regards brandishing and discharging as sentencing factors to be found by the judge, not offense elements to be found by the jury." United States v. Harris, 122 S.Ct. 2406, 2414 (2002). Therefore, even though the jury in this case found defendants Davis and Minnis guilty of "carrying" firearms in relation to drug trafficking crimes, the defendants may be sentenced to a minimum of seven years in prison for violating section 924(c) if the government shows that the defendants actually "brandished" their weapons.
Under the statute, brandishing is defined as with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person. 18 U.S.C. § 924(c)(4). As to defendant Davis, the government has met its burden in showing that there is a preponderance of reliable evidence that Davis pointed his weapon at Officer Brook in order to intimidate the Officer. Officer Brook testified at trial that defendant Davis exited the Honda and attempted to flee the scene. According to Officer Brook, defendant Davis pointed his weapon over his shoulder at the Officer. This court finds that this testimony is sufficient to show that defendant Davis displayed his firearm to Officer Brook in order to intimidate the officer and discourage him from the chase. Therefore, defendant Davis is subject to a seven year mandatory minimum sentence for his conviction under 18 U.S.C. § 924(c).
When evaluating sentencing factors, "[t]he burden of proof in the District Court is on the government, and the standard of proof is a preponderance of reliable evidence." United States v. Tiller, 302 F.3d 98, 106 n. 4 (3d Cir. 2002).
Defendant Minnis, however, is a closer case. According to Officer Bucceroni's testimony, Minnis attempted to exit the vehicle with a weapon in his hand. However, Officer Bucceroni noted that Minnis "was not really looking at me" when he exited the vehicle. While there is ample evidence that Minnis had the weapon in his hand, there is no evidence in the record to suggest that Minnis displayed his weapon to intimidate anyone. In United States v. Harris, the Supreme Court affirmed a defendant's sentence for brandishing a weapon after the defendant plead guilty to violating 18 U.S.C. § 924(c). 122 S.Ct. 2406, 2414 (2002). In Harris, the defendant, during one drug transaction, removed his firearm from its holster, showed the weapon to an undercover agent, and explained that it "`was an outlawed firearm because it had a high-capacity magazine,' and further stated that his homemade bullets could pierce a police officer's armored jacket." United States v. Harris, 243 F.3d 806, 807 (4th Cir. 2001). Harris clearly intended to intimidate the undercover agent by explaining the fire power of his weapon. In the case presently before the court, Minnis merely exited the vehicle while holding the weapon. The government has failed to show by a preponderance of the evidence that defendant Minnis intended to intimidate another person; therefore, the defendant is subject to a five year, rather than seven year, mandatory minimum sentence for his conviction under 18 U.S.C. § 924(c)(1)(A).
III. Conclusion
For the foregoing reasons, this court finds that the government has shown by a preponderance of the evidence that defendant Davis brandished his weapon in relation to a drug trafficking crime. This court also finds that the government has failed to show by a
preponderance of the evidence that defendant Minnis displayed his weapon in order to intimidate another person; therefore, defendant Minnis did not brandish his weapon.
ORDER
AND NOW, this 7th day of January, 2003, pursuant to Federal Rule of Criminal Procedure 32(c)(1), and alter considering the Presentence Investigation Report (the "PSI") dated November 5, 2002, and revised December 6, 2002, the defendant's objections to the PSI, the government's sentencing memorandum, it is hereby ORDERED that the following findings and determinations of the court shall be appended to the PSI in this case and shall accompany any copy of the PSI thereafter made available to the Bureau of Prisons. With regard to the PSI, the defendant's objections, and the government's objections thereto, the court rules as follows:
I. Defendant objects to paragraphs 34 and 35 of the PSI and the probation office's conclusion that he is an armed career criminal pursuant to U.S.S.G. § 4B1.4. The defendant argues that he does not have three distinct previous convictions for "serious drug offenses" as defined by 18 U.S.C. § 924(e).
RULING: The defendant's objection is DENIED.
United States Sentencing Guideline section 4B1.4 defines an armed career criminal as a defendant who is subject to an enhanced sentence pursuant to 18 U.S.C. § 924(e). Under 18 U.S.C. § 924(e)(2), a defendant receives an enhanced sentence if the instant offense is a violation of 18 U.S.C. § 922(g) and the defendant has at least three prior convictions for a "violent felony" or a "serious drug offense" committed on separate occasions. A "serious drug offense" is defined as an offense under state law involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance for which a maximum term of imprisonment of ten years or more as prescribed by law. 18 U.S.C. § 924(e)(2)(A)(ii).
118 U.S.C. § 922(g) provides:
It shall be unlawful for any person —
who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Defendant first argues that there is no indication in the PSI that these drug offenses occurred on separate occasions. However, the PSI indicates and the individual judgment of convictions show that the defendant was arrested on three separate occasions (December 17, 1992, November 1, 1993, and December 13, 1994) and charged with possession with intent to deliver a controlled substance, specifically cocaine base or crack, in violation of 35 P.S. § 780-113(a)(30). Therefore, these offenses clearly occurred on occasions different from one another as required by 18 U.S.C. § 924(e)(1).
Defendant next argues that these convictions do not qualify as serious drug offenses because his sentences were for less than ten years in each case. Specifically, the defendant received a sentence of six to twenty-three months for CP#9404-2288, a sentence of six to twenty-three months for CP#9404-2290, and a sentence of two to five years in prison for CP#9502-0060. Under Pennsylvania law, a person convicted of possession with intent to deliver cocaine base or crack, a Schedule II narcotic, "shall be sentenced to imprisonment not exceeding fifteen years." 35 Pa. Cons. Stat. Ann. § 780-113(f)(1) (West 1993). Even though 780-113 includes specific penalties for distributing controlled substances, defendant contends that his prior convictions are felonies of the third degree which carry a maximum sentence of seven years. While it is accurate that a felony without specification of degree is a felony of the third degree, 18 Pa. Cons. Stat. Ann. § 106(b)(5) (West 1998), and that a third degree felony carries a maximum sentence of seven years, 18 Pa. Cons. Stat. Ann. § 1103(3) (West 1998), the Pennsylvania Supreme Court has found that the more specific provisions of section 780-113(f)(1) trump the general provisions of section 1103(3). See Commonwealth of Pennsylvania v. Bell, et al., 645 A.2d 211, 216 (Pa. 1994). Because section 780-113(f)(1) applies and the defendant faced a maximum term of imprisonment of fifteen years for each prior offense, his convictions qualify as serious drug offenses for the purposes of 18 U.S.C. § 924(e)(1).
Cocaine base or "crack" qualifies as a Schedule II narcotic. 35 P.S. § 780-104(2)(i)(4) (defining "[c]oca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances" as a Schedule II controlled substance).
2. Defendant objects to paragraphs 75 and 76 of the PSI and the probation office's conclusion that the defendant is subject to a seven year consecutive mandatory minimum pursuant to 18 U.S.C. § 924(c)(1)(A)(ii) because he "brandished" his weapon. Defense argues that he merely possessed the weapon; therefore, he faces a five year consecutive mandatory minimum pursuant to 18 U.S.C. § 924(c)(1)(A)(i).
RULING: The defendant's objection is GRANTED. Paragraphs 75 and 76 of the PSI are modified to reflect that the defendant's mandatory consecutive sentence for Count Six is five years for possessing a firearm in relation to a drug trafficking crime pursuant to 18 U.S.C. § 924 (c)(1)(A)(i) rather than seven years for brandishing a firearm in relation to a drug trafficking crime pursuant.
Section 924(c)(4) defines the term "brandish" as "with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person." The government has failed to meet its burden in showing that the defendant displayed his weapon to intimidate another person. Therefore, defendant Minnis is subject to a five year mandatory minimum for carrying a firearm in relation to a drug trafficking crime.
3. Defendant objects to paragraph 25 of the PSI applying a two-level enhancement for reckless endangerment during flight pursuant to U.S.S.G. § 3Cl.2. The defendant argues that he was merely a passenger in the vehicle that fled police and was not responsible for the actions of the driver.
RULING: The defendant's objection is GRANTED. Paragraph 25 of the PSI applying the 3C1.2 enhancement is deleted.
The court notes, however, that this deletion does not alter the total offense level of 34 because the defendant receives an enhancement as an armed career criminal under U.S.S.G. § 4B1.4.
U.S.S.G. § 3C1.2 provides that a defendant's offense level must be increased by two levels if the defendant "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer . . . ." Application note five to section 3C1.2 explains that a defendant "is accountable for his own conduct and for conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused." In this case, Minnis was a passenger in the backseat of a vehicle whose driver led police in a high-speed chase throughout south Philadelphia. According to the defendant, there is no evidence that he exercised any control over the driver of the vehicle and did not recklessly endanger another person during flight. The probation office responds that under U.S.S.G. § 1B1.3(a)(1)(B) the defendant's offense level is based on his actions as well as "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity," and that a car chase with police is a reasonably foreseeable act in furtherance of this particular criminal activity.
In United States v. Cook, the Eleventh Circuit held that a defendant was not subject to a section 3C1.2 adjustment because there was no evidence before the sentencing court that the defendant, a passenger in a getaway car, "aided or abetted, counseled, commanded, induced, procured, or willfully caused" a high-speed chase, 181 F.3d 1232 (11th Cir. 1999). In Cook two defendants robbed a bank while a third waited in a getaway car. As the police pursued the vehicle, two defendants jumped from the car and the third continued to flee police and drove at a high rate of speed before colliding into another police car. Noting that other circuits had "required more than evidence of an endangering conduct that was reasonably foreseeable" and "had demanded the presence of some form of active participation by the accused" id. at 1235, the Eleventh Circuit reasoned that "Application Note Five to § 3C1.2 constitutes an instance in which the Guidelines have specified that § 1B1.3 (a)(1)(B) is not to apply." Id. at 1235-36. Along with the Eleventh Circuit, the Fourth, Tenth, and Ninth Circuits all require some form of active participation in order to apply a section 3C1.2 enhancement. See United States v. Chong, F.3d 343, 346 (4th Cir. 2002) (noting that some form of direct or active participation is necessary in order for § 3C1.2 to apply); United States v. Conley, 131 F.3d 1387, 1390 (10th Cir. 1997) ("Mere reasonable foreseeability of the reckless behavior at issue is not enough by itself to support a § 3C1.2 enhancement."); United States v. Lipsey, 62 F.3d 1134, 1136-37 (9th Cir. 1995) (finding that a sentencing court incorrectly applied a 3C1.2 enhancement to a passenger in a getaway car even though that passenger participated in an armed bank robbery). Therefore, simply being a passenger in a getaway car does not automatically subject a defendant to a 3C1.2 enhancement.
There is no evidence in the record to indicate that the defendant had any control over the driver of the vehicle. Furthermore, the defendant did not attempt to flee once the car came to a stop. The government has not met its burden and the 3C1.2 enhancement does not apply to this defendant.
4. Government objects to paragraph 29 and the probation office's conclusion that the total offense level is 34. The government contends that the total offense level should be 36 to reflect an initial level of 34 due to defendant's status as an armed career criminal under U.S.S.G. § 4B1.4 and a two level adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.2.
RULING: The government's objection is DENIED,
United States Sentencing Guideline section 4B1.4 provides: "[t]he offense level for an armed career criminal is the greatest of: (1) the offense level applicable from Chapters Two and Three; or . . . (3) 34 if the defendant used or possessed the firearm or ammunition in connection with . . . a controlled substance offense . . ." (Emphasis added). Therefore, the correct total offense level for the defendant is 34.
The sentencing guidelines define a controlled substance offense "an offense under either federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits . . . possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(b).
BY THE COURT.