Browder v. StateBrowder v. State
This Court granted the State‘s certiorari petition to review the judgment of the Court of Criminal Appeals reversing the sentences of David Mitchell Browder and Billy Alford Welch for their convictions of the crime оf conspiracy to traffic in marijuana.1 (The defendant Paul Lamar Stinson is not involved in this certiorari review.) We reverse that judgment of the Court of Criminal Appeals and remand for that court to order the trial court to determine (1) whether under Alabama law, as discussed below, either Browder or Welch “possessed” a firearm for the purposes of the firearm enhancement statute, and (2) if the trial court determines that one conspirator possessed a firearm or firearms, whether under the three-part test we adopt today from United States v. Otero, 890 F.2d 366 (11th Cir.1989), the sentence of the other conspirator can be enhanced because of his status as a coconspiratоr. The trial court should hold a hearing on these issues.
Facts
David Mitchell Browder, Billy Alford Welch, and Paul Lamar Stinson were indicted, in alternative counts, for conspiracy to traffic in marijuana, trafficking in marijuana, and possession of marijuana. Their cases were consolidated for trial. Pursuant to a jury trial, each of them was convicted. Browder was convicted of conspiracy to traffic in marijuana and was sentenced to 30 years’ imprisonment; this term included five years’ sentence enhancement for possessing a firearm during the commission of the offense, pursuant to
The Court of Criminal Appeals on January 19, 1996, issued an unpublished memorandum regarding some aspect of each defendant‘s case (No. CR-93-0780, January 19, 1996) ___ So.2d ___ (Ala.Crim.App.1996) (table). Also on January 19, 1996, the Court of Criminal Appeals issued an opinion in their appeal. By that opinion, it affirmed Stinson‘s conviction and sentence; by that same opinion it
The State‘s certiorari petition raises an issue of first impression: whether the firearm enhancement provision in
Analysis
A. The Court of Criminal Appeals’ application of Williams v. State.
The Court of Criminal Appeals, relying on Williams v. State, 665 So.2d 955 (Ala. Cr.App.1994), stated:
“The rationale of Williams applies to this case. Browder and Welch were convicted of conspiracy to traffic in marijuana, not of the substantive crime. Section 13A-12-231(13) may be applied only to enhance the sentences of defendants convicted of the substantive crime.”
Browder v. State, 728 So.2d 1106, 1107 (Ala. Cr.App.1996). We hold otherwise.
The Williams case dealt with
“In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale of a controlled substance, there is hereby imposed a penalty of five years incarceration in a state corrections facility with no provisiоn for probation if the situs of such unlawful sale was on the campus or within a three-mile radius of the campus boundaries of any public or private school, college, university or other educational institution in this state.”
In keeping with the plain language of the statute, this Court has held that a defendant convicted of conspiring to sell drugs within the stаted zones could not be punished by the five-year enhancement of
Section 13A-12-231(13), the firearm enhancement provision applicable to the crime of trafficking in controlled substances, reads as follows:
“(13) Notwithstаnding any provision of law to the contrary, any person who has possession of a firearm during the commission of any act proscribed by this section shall be punished by a term of imprisonment of five calendar years which shall be in addition to, and not in lieu of, the punishment otherwise provided, and a fine of
twenty-five thousand dollars ($25,000); the court shall not suspend the five-year additional sentence of the person or give the person a probationary sentence.”
(Emphasis added.) Section 13A-12-204(c) states that “[a] criminal conspiracy to commit a controlled substance crime shall be punished the same as the controlled substance crime that is the object of the conspiracy.” The object of Browder and Welch‘s conspiracy was trafficking in cannabis, a controlled substance crime. Part of the punishment for this particular controlled substance crime is provided by the firearm enhancement provision of
B. Did Welch or Browder have “possession” of a firearm, within the meaning of § 13A-12-231(13)?
Section 13A-12-231(13) provides that any person “who has possession of a firearm during the commission of any act proscribed by this section” shall be subject to the five-year sentence enhancement. Did Browder and Welch have “possession of a firearm” so as to invoke the sentence enhanсement?
At the original sentencing hearing for Browder, the trial court ruled as follows:
“And the Court also imposes an additional five-year sentence under the Firearms Enhancement Statute ... because the Court finds that the—that a firearm or firearms were used during the course of the conspiracy to traffic in marijuana.”
(C.R. 2307.) At the original sentencing hearing for Welch, the trial court ruled as follows:
“The Court also specifically finds that the use of firearms were involved in the conspiracy to traffic in marijuana, primarily based on the [Mossberg] shotgun found in the house or residence in Autauga County because I don‘t think that gun can be reasonably construed to be a hunting weapon.”
(C.R. 2305.)3 Although Welch and Browder argued that the Autauga County residence was a hunting camp and that the guns were in the house only to be used for hunting, the trial judge determined that, at least in the case of the Mossberg shotgun, the weapon was “used” in the conspiracy. The trial court did not make a finding on the issue of whether either Browder or Welch “possessed” the guns. We, thеrefore, remand this case to the Court of Criminal Appeals for that court to order a hearing to determine whether either of these defendants “possessed” any of the weapons in furtherance of the conspiracy.
In Ynosencio v. State, 629 So.2d 795 (Ala. Cr.App.1993), the defendant Ynosencio appealed both as to his conviction and as to the five-yeаr enhancement of his sentence under
The Court of Criminal Appeals affirmed Ynosencio‘s conviction and his sentence. In affirming the sentence, that court interpreted the word “possession” as it is used in
“We have not been directed to a single case that has dealt with the mеaning of the word `possession’ as it is used in § 13A-12-231(13). It is clear, however, throughout § 13A-12-231, that the legislature has generally sought to curb the `actual or constructive possession’ of narcotics. We find that the word `possession’ as used in § 13A-12-231(13) includes both actual [and] constructive possession of a firearm in its definition. “We believe that the legislature‘s primary рurpose in enacting the firearm statute was to alleviate the inherent danger that arises whenever narcotics and firearms are brought together. Obviously, firearms are dangerous when they are in the actual possession of a narcotics trafficker. Yet, they are just as dangerous when they are in the trafficker‘s constructive рossession. The fact that a firearm is temporarily being stored in a trafficker‘s glove compartment, desk drawer, or in this case, locked toolbox, makes the firearm no less dangerous. The firearm is still capable of being used by the trafficker. Thus, we believe that the legislature intended for the word `possession’ as found in the firearms enhancement statute to mean both actual [and] constructive possession.”
629 So.2d at 798. We agree that the statute was meant to encompass both actual and constructive possession of a firearm. The trial court should take that factor into consideration when determining whether Browder and Welch possessed any of the fireаrms found in the Autauga County house.
C. If the trial court finds that one of these two conspirators possessed the firearm or firearms and that the other did not, can the trial court enhance the sentence of the one who did not on the basis of his coconspirator‘s possession of a firearm during the conspiracy?
Now, on a matter of first impression in Alabama, we hold that if the trial court determines on remand that one of these two conspirators possessed a firearm or firearms in furtherance of the conspiracy but that the other one did not, then the trial court still may enhance the sentence of the other because of his culpability as a coсonspirator.
Since 1989, the Eleventh Circuit Court of Appeals, under its sentencing guidelines, has permitted a conspirator‘s sentence to be enhanced based on a coconspirator‘s possession of a firearm. See United States v. Otero, 890 F.2d 366 (11th Cir.1989); see also United States v. Luiz, 102 F.3d 466 (11th Cir.1996). In Otero, the Eleventh Circuit Court of Appeals held that the defendant‘s sentence for cocaine possession and conspiracy to possess with the intent to distribute cocaine had been properly enhanced under Section 2D1.1(b) of the Federal Sentencing Guidelines, based on his coconspirator‘s possession of a firearm. In affirming the sentence, the court restated a loosely constructed three-pronged test4 fоr determining whether a sentence enhancement based on a coconspirator‘s possession of a firearm is proper:
“[F]irst, the possessor must be charged as a co-conspirator; second, the co-conspirator must be found to have been possessing a firearm in furtherance of the conspiracy; and third, the defendant who is to receive the enhanced sentence must have been a member of the conspiracy at the time of the firearms possession.”
Otero, 890 F.2d at 367. We adopt this test as a useful method for determining whether a defendant is to be found to constructively possess a firearm on the basis that his coconspirator possеsses a firearm. If it finds that one conspirator possessed the firearm, under the constructive-possession rationale of Ynosencio, then the trial court should determine whether to enhance the sentence of the other conspirator, by applying the three-pronged test from Otero.
Accordingly, we reverse the judgment of the Court of Criminal Appeals affirming the new sentences of Browder and Welch. We remand the case for the Court of Criminal Appeals to order hearings in the trial court for the trial court to determine whether either
SENTENCES OF DEFENDANTS BROWDER AND WELCH REVERSED AND CASE REMANDED AS TO THOSE TWO DEFENDANTS.
MADDOX, SHORES, HOUSTON, KENNEDY, and SEE, JJ., concur.
ALMON and COOK, JJ., dissent.
COOK, Justice (dissenting).
I respectfully dissent. I disagree with the majority‘s holding that the firearm enhancement statute,
Section § 13A-12-231(13) states:
” (13) Notwithstanding any provision of law to the contrary, any person who has possession of a firearm during the commission of any act proscribed by this section shall be punished by a term of imprisonment of five calendar years which shall be in addition to, and not in lieu of, the punishment otherwise provided, and a fine of twenty-five thousand dollars ($25,000); the сourt shall not suspend the five-year additional sentence of the person or give the person a probationary sentence.”
(Emphasis added.)
The plain language of
I would have affirmed the new sentences for defendants Browder and Welch, which did not include the firearm enhancement.
ALMON, J., concurs.