Filed: Dec. 23, 1997
Latest Update: Feb. 21, 2020
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 96-6699 _ D.C. Docket No. CR-95-233-N UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JEFFREY YOUNG, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Alabama _ (December 23, 1997) Before EDMONDSON and DUBINA, Circuit Judges, and LIMBAUGH*, Senior District Judge. _ * Honorable Stephen N. Limbaugh, Senior U.S. District Judge for the Eastern District of Missouri, sitting by de
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 96-6699 _ D.C. Docket No. CR-95-233-N UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JEFFREY YOUNG, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Alabama _ (December 23, 1997) Before EDMONDSON and DUBINA, Circuit Judges, and LIMBAUGH*, Senior District Judge. _ * Honorable Stephen N. Limbaugh, Senior U.S. District Judge for the Eastern District of Missouri, sitting by des..
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
___________________________
No. 96-6699
___________________________
D.C. Docket No. CR-95-233-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEFFREY YOUNG,
Defendant-Appellant.
____________________________
Appeal from the United States District Court
for the Middle District of Alabama
_____________________________
(December 23, 1997)
Before EDMONDSON and DUBINA, Circuit Judges, and LIMBAUGH*,
Senior District Judge.
_______________________________
* Honorable Stephen N. Limbaugh, Senior U.S. District Judge for
the Eastern District of Missouri, sitting by designation
PER CURIAM:
Defendant-Appellant Jeffrey Young entered a plea of guilty to possessing, with
intent to distribute, methamphetamine and a conditional plea of guilty to using and
carrying three firearms in relation to the methamphetamine charge. He appeals the
district court’s finding that there was sufficient evidence to conclude that Young
carried the firearms in relation to the drug charge, and the lower court’s interpretation
of the plea agreement for sentencing purposes. The government concedes the second
point raised on this appeal. We affirm in part, vacate the sentence, and remand for
resentencing.
BACKGROUND
Certain facts were stipulated to by the parties at the sentencing hearing, both in
writing and in the sentencing colloquy. Andalusia, Alabama police officers, shortly
after midnight on October 29, 1995, observed a pick-up truck being driven erratically.
The truck was stopped and appellant, the driver, was arrested for driving under the
influence of alcohol and driving on the wrong side of the road. An inventory search
of the vehicle was made and the police found 23 grams of methamphetamine under
the carpet on the floor of the vehicle and a .22 caliber semi-automatic handgun and a
9mm handgun under the seat. They also found a .22 caliber rifle behind the driver’s
seat. Although the guns were in close proximity to the drugs, neither were in plain
view.
The guns were loaded and functioning and appellant knew they were in the
pickup when he was arrested. Appellant also stipulated that the drugs in the pickup
were intended for distribution rather than for personal use.
The sentencing judge found on the basis of these facts and the reasonable
inferences to be derived from such facts that a reasonable fact finder could have
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decided that appellant carried the fire arms during and in relation to a drug trafficking
crime.
DISCUSSION
This Court reviews de novo whether there was sufficient evidence to sustain a
conviction. U.S. v. Chirinos, 112 F3d 1089, 1095 (11th Cir. 1997). The same de novo
review is also used in construing plea agreements. U.S. v. Jefferies, 908 F2d 1520,
1523 (11th Cir. 1990).
All inferences from the evidence must be drawn in the government’s favor.
U.S. v. Lyons, 53 F3d 1198, 1200 (11th Cir.), cert. denied, _____ U.S. _____, 116
S. Ct. 350 (1995).
The statute involved provides that:
“ . . . Whoever, during and in relation to any crime of violence or drug trafficking
crime (including a crime of violence or drug trafficking crime which provides for an
enhanced punishment if committed by the use of a deadly or dangerous weapon or
device) for which he may be prosecuted in a court of the United States, uses or carries
a firearm, shall, in addition to the punishment provided for such crime of violence or
drug trafficking crime, be sentenced to imprisonment for five years, . . .” 18 U.S.C.
§ 924(c)(1).
The parties agree that appellant did not use the firearms in connection with a
drug trafficking crime1 but appellant concedes that he carried firearms within the
meaning of the statute. He argues, however, that he did not carry the firearms during
and in relation to a drug trafficking offense. He maintains there must be evidence to
1
There is no evidence to show appellant actively employed the firearms during and
in relation to a drug trafficking offense. Bailey v. U.S., _____ U.S. _____, 116 S. Ct. 501, 505,
133 L. Ed. 2d 472 (1995).
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show that he was using his vehicle as a distribution center; that is, as a base for drug
distributions. Thus, he feels there must be some evidence to show an imminent sale
from the vehicle.
The government counters that evidence of an imminent sale is not required. As
appellant stipulated the drugs were intended for distribution, a reasonable fact finder
could infer the loaded guns in proximity to the drugs linked the guns and the drugs to
an unlawful activity. The United States argues that even if the drugs were to be sold
at some other location, the reasonable inference is that the pickup was being used to
transport the methamphetamine to an intended destination where it would be sold.
Thus, the time of the intended sale is not material.
Appellant relies on U.S. v. Farris, 77 F3d 391 (11th Cir.), cert. denied., _____
U.S. _____, 117 S. Ct. 241 (1996), and U.S. v. Range, 94 F3d 614 (11th Cir. 1996).
In each case drugs and guns were located in a vehicle and a sale of drugs was
imminent or in progress.
In Farris, the defendant agreed to deliver crack cocaine to a confidential
informant at a motel. Farris and three other persons drove to the motel in a Toyota
vehicle. There was evidence that Farris set up the sale and owned a gun located in the
glove compartment. Farris exited the vehicle leaving the gun in the glove
compartment, and was arrested as he approached the motel room where the sale was
to occur. This court held the evidence was sufficient for the jury to conclude the
Toyota was being used as a drug distribution center, and that the gun was being
carried during the commission of a drug offense.
The evidence in Range showed that he and co-defendants were involved in a
drug sale at a restaurant. Range drove his vehicle to the restaurant parking lot and
parked near the co-defendant’s vehicle. An informant and a co-defendant came to
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Range’s auto and picked up a bag containing a sum of money from the floor. The
parties exited Range’s auto and drove to another area of the lot where two packages
appearing to be cocaine were displayed and all were then arrested. A search of
Range’s car revealed a loaded pistol under the front seat floor mat and a bag
containing $40,000 in cash. After comparing the facts in Farris, this court held there
was sufficient evidence to establish the “carrying” of a firearm during or in relation
to the drug offense.
Although the facts in Farris and Range involve an imminent sale or one in
progress, the cases are not so narrow as suggested by appellant. Neither decision
stated that the government must show that the sale occurred in the vehicle or that the
sale must be imminent or in progress and we do not so hold here. What we do hold
is that a fact finder in this case could reasonably link the vehicle and the guns to drug
trafficking activity in order to satisfy the “carrying” prong of the statute even though
there is no direct evidence of a sale in progress or one that is imminent.
The guns were loaded in the vehicle, and appellant knew they were there. They
were within the driver’s reach as were the drugs.2 It is reasonable to assume the
vehicle was being used to transport the methamphetamine to a destination where it
would be sold. This conclusion is inescapable as appellant has admitted the drugs
were intended for distribution, that is a sale. Given the facts here, the lack of
evidence of a specific sale setting out a date, time, place and names of participants
does not prevent the fact finder from concluding the “carrying” prong of the statute
2
Some circuits have held the carrying of a firearm during and in relation to a drug
trafficking crime prong of 18 U.S.C. § 924(c)(1) is satisfied simply if the drugs and guns are
together in the same place. U.S. v. Molina, 102 F3d 928, 932 (7th Cir. 1996); U.S. v. Miller, 84
F3d 1244, 1258-1261 (10th Cir. 1996), cert. denied, 117 S. Ct. 443 (1996); (Contra) U.S. v.
Malcuit,
104 F.3d 880 (6th Cir. 1997).
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has been established. See U.S. v. Riascos-Suarez, 73 F3d 616, 623 (6th Cir. 1996).
In addition, a fact finder could reasonably have concluded that the guns had the
potential of facilitating a drug trafficking offense. Smith v. U.S., 508 U.S. 223, 238,
113 S. Ct. 2050 (1993). Again, they were loaded and were in close proximity to the
drugs and were within easy reach of appellant. Given the quantity of the drugs, it
stretches the imagination to assume the guns were there by accident or coincidence.
For these reasons we sustain the conviction of carrying a firearm during and in
relation to a drug trafficking crime.
PLEA AGREEMENT
Appellant’s guideline range on Count I was 46 to 57 months. The sentence on
Count II would be 60 months consecutive to the sentence imposed on Count I as
required by statute. Pursuant to a cooperative agreement, the government moved for
a downward departure to reduce the sentence by 25%, U.S.S.G. § 5K1.1. There was
confusion at sentencing as to whether the 25% reduction would apply to the sentence
on Count I only, or to the sentence as a whole.
The district court, noting the literal language of the agreement, applied the
reduction to the sentence on Count I only. Appellee concedes this was inappropriate
as the actual agreement was to request a 25% reduction from the combined sentence
on both counts. We acknowledge the concession, vacate the sentence, and remand for
resentencing. U.S. v. Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990). At
resentencing, the trial judge shall sentence appellant within the guideline range of 46
to 57 months as to Count I followed by a 60-month sentence as to Count II,
consecutive to the sentence imposed on Count I. He shall then adjust the total
sentence by a 25% reduction.
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AFFIRMED in part and sentence VACATED and REMANDED for
resentencing consistent with this opinion.
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