UNITED STATES of America, Plaintiff-Appellee, v. Terrell R. BAILEY, Defendant-Appellant.
No. 06-5576
United States Court of Appeals, Sixth Circuit
Dec. 13, 2007
510 F.3d 562
Argued: Sept. 18, 2007.
On remand, I note that the district court may entertain the possibility of imposing a non-guideline sentence on Gharbi. See United States v. Smith, 440 F.3d 704, 707 (5th Cir.2006) (regarding appellate review of non-guideline sentences); see also Gall v. United States, — U.S. —, 128 S.Ct. 586, 169 L.Ed.2d 445, 2007 WL 4292116, *2 (Dec. 10, 2007) (“We now hold that, while the extent of the difference between a particular sentence and the rеcommended Guidelines range is surely relevant, courts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard.“).
* This opinion was originally issued as an “unpublished opinion” filed on December 13, 2007. The court has now designated the opinion as one recommended for full-text publicatiоn.
Before: MOORE and GRIFFIN, Circuit Judges; and TARNOW, District Judge.**
GRIFFIN, J., delivered the opinion of the court, in which MOORE, J. (p. 569), and TARNOW, D.J. (p. 569), joined and delivered separate concurring oрinions.
OPINION
GRIFFIN, Circuit Judge.
Defendant Terrell R. Bailey appeals his convictions and sentences for possession with intent to distribute crack cocaine in violation of
I.
On November 7, 2004, Terrell Bailey was driving a stolen car in Covington, Kentucky. A Covington police officer identified the stolen car and attempted to stop Bailey. Defendant refused to stop and was eventually apprehended while attempting to flee into Ohio.
After Bailey was arrested, the officers searched him and, in the procеss, discovered two baggies of crack cocaine in his possession. One bag contained 9.41 grams and the other 5.50 grams. The officers also found two cellular telephones with Bailey, and a loaded .357 Magnum and empty holster under his seat in the car. The handgun had not been in the car when it was stolen. Elizabeth Stanford, age 17, was the only passenger in the car. At trial, she testified that shе was not the owner of the handgun, and that she had told the police (through a written statement) that Bailey put the gun under the seat.1
A federal grand jury indicted Bailey, charging him with possession with intent to distribute five grams or more of crack cocaine in violation of
The district court sentenced Bailey to 360 months on the distribution conviction to be served concurrently with 120 months on the conviction for being a felon in possession of a firearm, followed by a consecutive sentence of 60 months for possession of a firearm in furtherance of drug trafficking.
Bailey timely appealed.
II.
Defendant was sentenced as a career offender pursuant to
(а) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a controlled substance offense.
Bailey was 23 years old at the time of the arrest and the instant conviction is a controlled substance felony offense. In addition, Bailey had a prior felony conviction for trafficking in a controlled substance, and a Kentucky state conviction for second-degree escape in violation of
Bailey contends that his escape offense wаs “a far cry from a crime of violence.” According to him, he “merely walked away from a halfway house; no violence was committed or threatened, and the escape charge was not filed until Bailey was in custody on another unrelated charge....” Defendant argues that “[e]ven the most limited factual inquiry” into his escape would reveal that it was not violent.
The government responds by asserting that we are forbidden from conducting a “broad factual inquiry” into the circumstances surrounding a prior conviction and must instead rely on a “categorical approach.” We agree. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and United States v. Montanez, 442 F.3d 485, 489 (6th Cir. 2006) (and cases cited therein). As we stated in Montanez, 442 F.3d at 489:
Under the categorical approach, “it is not only impermissible, but pointless, for the court to look through to the defendant‘s actual criminal conduct.” Butler, 207 F.3d at 843. This approach “avoids the subsequent evidentiary enquiries into the factual basis for the earlier conviction.” Shepard, 125 S.Ct. at 1259. “Generally speaking, only the fact of the prior conviction and the statutory definition of the predicate offense are used to determine whether a prior conviction is a controlled substance offense.” Galloway, 439 F.3d 320, at 323 (citations omitted). If, however, thе categorical approach fails to be determinative, a sentencing court may look to the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented,” Shepard, 125 S.Ct. at 1257, in order to determine whether the prior crime qualifies as a controlled substance offense. See also Galloway, 439 F.3d 320, at 323 (noting that although Shepard applied to review under the
Armed Career Criminal Act , it “[b]y extension” applies to review underGuideline section 4B1.1 ).
In the present case, the categorical approach is determinative, and the appellate record does not include the charging documents or other court records pertaining to the escape conviction.
In United States v. Harris, 165 F.3d 1062, 1067-68 (6th Cir.1999), we held that the Tennessee escape statute was categorically a “crime of violence” for purposes of the career offender enhancement. In doing so, we explicitly adopted the Tenth Circuit‘s rationale from United States v. Gosling, 39 F.3d 1140 (10th Cir.1994), which emphasized that “every escape scenario is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so.” Id. at 1142.
Thereafter, in United States v. Esteppe, 483 F.3d 447, 451 (6th Cir.2007), we applied Harris to hold thаt a violation of the Kentucky escape statute was also a “crime of violence.” However, the Esteppe court
Moreover, in United States v. Lancaster, 501 F.3d 673 (6th Cir.2007), we held that Kentucky‘s second-degree escape statute was a “violent felony” for purposes of the
The same rationale used in Lancaster applies to the instant case. Kentucky‘s second-degree escape statute is a crime of violence under
In the present case, we now hold that
III.
Next, Bailey arguеs that the evidence presented to the jury was insufficient to support his convictions. “The relevant question in assessing a challenge to the sufficiency of the evidence is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. McAuliffe, 490 F.3d 526, 537 (6th Cir. 2007). When reviewing the record, “the court views all evidence in the light most favorable to the prosecution and determines whether there is any evidence from which a reasonable jury could find guilt beyond a reasonable doubt.” United States v. Talley, 164 F.3d 989, 996 (6th Cir.1999).
A.
Bailey was convicted of possession with intent to distribute crack cocaine in violation of
Bailey argues that the government presented insufficient evidence to prove that he knowingly possessed crack cocaine. Defendant claims that Officer Mears‘s testimony was “clearly impeached” when he testified that he removed the crack cocaine from Bailey‘s pants, but later testified that it was Officer Isaacs who rеmoved the drugs.
The government responds that Officer Isaacs testified that he found two bags of crack cocaine in Bailey‘s pants pockets. From such evidence, it asserts that a reasonable juror could credit Officer Isaacs‘s testimony and find that it satisfies the first two elements—that Bailey knowingly possessed a controlled substance.
Moreover, the government disagrees with Bailey‘s contention that Officer Mears‘s testimony was “clearly impeached.” It notes that the dispute regarded which officer discovered the crack cocaine, not whether crack cocaine was discovered. To the extent that any such inconsistency rеflects upon Officer Mears‘s credibility, we must defer to the trier of fact. Further, when reviewing claims of insufficient evidence, all credibility determinations must be drawn in favor of the prosecution. United States v. DeJohn, 368 F.3d 533, 542 (6th Cir.2004).
The government also refutes Bailey‘s claim that the amount of crack cocaine seized was insufficient to support a finding of his intent to distribute. Bailey possessed two bags of crack cocaine, one containing 9.41 grams, and the other containing 5.41 grams. Brett Price, the prosecution‘s expert witness, testified that the amount of crack found was consistent with drug trafficking, not personal use, because most dealers in the area sell crack cocaine in units of 0.1 to 0.2 grams. Further, Bailey was found with two cellular telephones but admitted that he was unemployed. Price testified that dealers often carry two cell phones—one to contact customers and one to contact suppliers—so that if police trace the call records of their customers it will not lead to their suppliers.
We agree with the government and conclude that the evidence presented at trial, in total, was sufficient to permit a reasonable jury to find that defendant knowingly possessed crack cocaine with the intent to distribute.
B.
Next, Bailey was convicted of possession of a firearm in furtherance of drug trafficking in violation of
any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a fireаrm, 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....
Bailey argues that, if he possessed a firearm, it was not used “in furtherance” of the offense.3 The government asserts that the firearm was used in furtherance of the
In Mackey, the issue was whether a short-barreled shotgun found in the same house as the defendant who was arrested for selling crack cocaine was sufficient to establish that the defendant possessed the firearm in furtherance of drug trafficking. Id. at 459. We stated in Mackey that “the possession of a firearm on the same premises as a drug transaction wоuld not, without a showing of a connection between the two, sustain a
In thе present case, the government relies upon the following facts in arguing that Bailey possessed the handgun in furtherance of his drug trafficking: (1) the .357 magnum was loaded; (2) it was quickly and easily accessible under Bailey‘s seat; (3) it was discovered in a stolen vehicle; and, (4) Stanford‘s testimony that she told the police that Bailey placed the gun under his seat.
Following our review, we conclude that this record provides ample evidence for a reasonable juror to conclude that Bailey‘s possession of the firearm was in furtherance of his drug trafficking.
C.
Bailey was also convicted of being a felon in possession of a firearm in violation of
Defendant does not contest either the first or the third element. Rather, he argues that his mere presence is insufficient to prove his possession of the firearm. Defendant emphasizes that the government must prove that he knowingly had either actual or constructive possession of the firearm. When viewing the facts in the light most favorable to the prosecution, the government met this burden. Stanford stated at the scene that Bailey placed the gun under his seat during the police chase. If this statement is credible, then it must be concluded that Bailey had actual, knowing possession of the firearm—otherwise he could not have placed the gun under his seat. Credibility determinations are the sole province of the trier of fact. DeJohn, 368 F.3d at 542.
IV.
Finally, Bailey appeals the district court‘s enhancement of the Sentencing Guidelines based on his alleged perjury. The district court ruled that Bailey committed perjury during his trial, thereby warranting a two-level enhancement to his offense level pursuant to
On appeal, a district court‘s decision to impose a
V.
In summary, after a thorough review of the record, we conclude that there was sufficient evidence to support Bailey‘s convictions. Further, we hold that a Kentucky state court conviction for second-degree escape is a crime of violence for purposes of the Sentencing Guidelines Career Offender Enhancement аnd conclude that the perjury enhancement issue is moot.
For the above reasons, we affirm defendant‘s convictions and sentences.
KAREN NELSON MOORE, Circuit Judge, concurring in the majority and concurring in Judge Tarnow‘s opinion.
I concur in the opinions of both Judge Griffin and Judge Tarnow.
TARNOW, District Judge.
I concur based on the fact that the issue of reasonableness has not been raised. The guideline range is the stаrting point in determining reasonableness, not the only factor to determine it. Thirty years for the relatively small amount of contraband may be unreasonable.