* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. DEYON THOMAS,

Defendant - Appellant. No. 96-1458 (D. Ct. No. 96-CR-48-AJ) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , LUCERO , and MURPHY , Circuit Judges.
Defendant Deyon Thomas was tried before a jury and convicted of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1); and using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c )(1). He was sentenced to approximately 26 years in prison. Defendant now ap peals his convictions and sentencing. We exercise jurisdiction under 18 U.S. C. §§ 1291 and 3742(a), and1 During a subsequent search of the premises, the police recovered a gun from the

defendant. The gun recovered was a chrome nine millimeter handgun rather than a black .45. We will discuss this apparent conflict in the evidence in more detail below. - 2 - affirm.
B ACKGROUND On January 10, 1996, a Denver drug task force used Christopher Epperson, a government informant with drug charges pending ag ainst him, to make a controlled buy of cocaine base (or crack cocaine) at a suspected crack house at 3102 Columbine. When Epperson knocked and rang the doorbell, defendant Deyon Thomas opened the door, holding a gun in his left hand. Epperson testified that the weapon appeared to be a black st eel .45 caliber gun. 1 As Epperson entered the house, Thomas moved the gun be hind his back, but Epperson did not see exactly what he did with it. The drug transaction took about ten minutes, during which time Epperson paid Thomas $240 in exchange for drugs, later confirmed to be crack cocaine. Eppers on testified that Will Harper, Thomas’s half-brother, also was in the room while t he transaction was conducted. Shortly after the controlled buy, officers obtained and executed a search warrant for the house. The police used a crowbar t o open the screen door and a ninety-pound ram to break down the front door. The first officer to enter the residence saw Thomas move quickly out of sight. Af ter pursuing Thomas, the officer found Thomas on his back on the floor with his hands in the air begging- 3 -

the officer not to shoot him. Another officer foun d a nine millimeter handgun on the floor near where the defendant was lying down. During the search of the house, the officers also found various caches of cr ack cocaine hidden about the house, as well as a scale of the sort typically use d by drug dealers to measure out quantities of drugs. A search of Thomas’s person r evealed $1,735 in cash hidden in his socks. Thomas and Harper were both arrested. While they w ere in the police car, Harper made statements to Thomas that the dope foun d in the house belonged to Thomas and that Harper himself was not involved. D uring initial questioning by officers at the scene, Thomas stated that he was ho use sitting for a friend and that the gun the officers found had always been there, a s long as he had been there. He stated that he had been burglarized recently, th at he grabbed the gun when he heard people forcibly entering the house because he thought they might be burglars, and that he then dropped it upon hearing the officers yelled “police.” Upon further questioning at the police station, how ever, he stated that a man named Kevin had supplied him with a ticket to Denve r, given him fifteen ounces of crack cocaine to sell, given him a gun and a cus tomer list, and allowed him to use the residence at 3201 Columbine for dealing the drugs. Prior to both periods of questioning, Thomas signed forms acknowledging that he had been informed of his rights.- 4 -

Thomas contests his convictions and sentencing on avariety of grounds. First, he argues that there was insufficient eviden ce that he used or carried a firearm during and in relation to a drug offense as required by 18 U.S.C. § 924(c)(1). Second, he contends that the trial co urt should not have allowed Harper’s hearsay statement to be introduced into ev idence as an excited utterance. Third, he argues that the government failed to prov e the substance involved was crack cocaine, and thus he should have been sentenc ed for powder cocaine rather than for crack. Fourth, he claims that the sentenc ing guidelines regarding crack cocaine are unconstitutional. Finally, he asserts that the trial judge should have recused himself before sentencing. For the reasons set forth below, we affirm.
D ISCUSSION 1. Sufficiency of the Evidence for the Section 924(c ) Conviction The defendant first argues that the evidence was in sufficient to support a finding that he used or carried a firearm during an d in relation to a drug trafficking crime as required by 18 U.S.C. § 924(c) . We review the record de novo to determine whether there is sufficient evide nce to support the jury’s verdict. See , e.g. , United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997). Evidence is sufficient to support a conviction if areasonable jury, considering the evidence and the inferences to be drawn therefrom i n the light most favorable to the government, could find the defendant guilty bey ond a reasonable doubt. See2Many defendants recently have challenged their convictions in light of Bailey v.

United States , 516 U.S. 137 (1995), which addressed the meaning of the “use” prong of section 924(c). However, Thomas’s trial was held after Baileywas decided and he does not challenge the “use” instructions given to the jury in his case. - 5 - id. In evaluating the evidence under this standard, t he court will not question a jury’s credibility determinations or its conclusion s about the weight of the evidence. See United States v. Johnson , 57 F.3d 968, 971 (10th Cir. 1995). Section 924(c) imposes a mandatory five-year senten ce on a defendant who “uses or carries” a firearm “during and in relation to” a drug trafficking crime. 18 U.S.C. § 924(c)(1). 2 In the context of section 924(c), “use” means “ac tive employment” of the firearm by the defendant, which includes brandishing or displaying the firearm. Bailey v. United States , 516 U.S. 137, 143, 148 (1995). The term “carry” involves two elements: “‘possessio n of the weapon through the exercise of dominion or control; and transportation of the weapon.’” United States v. Spring , 80 F.3d 1450, 1465 (10th Cir.), cert. denied , 117 S. Ct. 385 (1996) (quoting United States v. Martinez , 912 F.2d 419, 420 (10th Cir. 1990)). The evidence here was sufficient to support a findi ng that the defendant both used and carried a weapon during and in relation to the drug trafficking crime. It was undisputed at trial that Thomas was displayi ng a gun when he came to the door. There was evidence before the jury th at the primary purpose of the house, and Thomas’s presence there, was to run a cr ack cocaine sales operation.- 6 -

A government witness testified that drug dealers of ten carried firearms to protect themselves, the drugs, and the drug proceeds agains t rival distributors and against individuals who might come to the “crack house” see king to steal rather than purchase the drugs. A reasonable inference from al l this evidence was that the defendant displayed the weapon because he expected the call to be for a drug transaction, and that he wanted to deter the callerfrom attempting to harm him or steal the drugs or the proceeds. Although Thomas c laimed that he carried the weapon because he feared burglars, the jury was fre e to reject that assertion; we will not review the jury’s credibility determinatio ns. See Johnson , 57 F.3d at 971. The evidence is sufficient to allow a reasona ble jury to find that, by displaying the weapon at the door, the defendant us ed the weapon during and in relation to a drug transaction. The evidence also is sufficient for a reasonable ju ry to find that Thomas carried the weapon during and in relation to the dr ug transaction. Although Epperson could not see exactly what Thomas did with the weapon when he put it behind his back, a reasonable inference is that he placed it in the back of his waistband and was carrying it throughout the drug t ransaction. There was a sufficient evidentiary basis, therefore, for a reas onable jury to find that the defendant violated section 924(c). In making his sufficiency-of-the-evidence argument, the defendant notes- 7 -

the discrepancy in the evidence relating to the gun . Epperson testified that Thomas arrived at the door with a black steel .45, while the actual gun found near the defendant during the police search of the premi ses was a chrome (silver) nine millimeter. There are several ways in which a reas onable juror might resolve this evidentiary discrepancy in favor of the government. For instance, a juror might believe that Thomas brought the nine millimeter to the door to meet Epperson, and that Epperson mistakenly recollected the gun as a black .45. Because a reasonable juror could resolve the conflict in favo r of the government, the discrepancy does not make the evidence insufficientto support the defendant’s conviction for violating section 924(c). 2. Admission of Harper’s “Excited Utterance” The defendant argues that the statements made by hi s half-brother, Harper, who did not testify at trial, should not have been allowed into evidence because they were inadmissible hearsay. See F ED
. R. E VID . 802. The district court allowed the government to introduce the statements under Federal Rule of Evidence 803(2), which permits the introduction of “excited utterances” as an exception to the hearsay rule. An “excited utteran ce” is defined as “[a] statement relating to a startling event or condition made whi le the declarant was under the stress of excitement caused by the event or conditi on.” F ED
. R. E VID . 803(2). The district court found that Harper’s statements f ell within the excited utterance- 8 -

exception to the hearsay rule because they were mad e while he was still under the stress of the police breaking into the house and ar resting him. We review the district court’s evidentiary rulings for abuse of discretion. See United States v. Trujillo , 136 F.3d 1388, 1395 (10th Cir.), petition for cert. filed , (U.S. May 5, 1998) (No. 97-8977). “Because hears ay determinations are particularly fact and case specific,” our review of those decisions is especially deferential. Id. Thomas contends that the statements were not suff iciently close in time to the “startling event” (i.e., the officer s breaking into the house) to fall within the scope of Rule 803(2). However, there is no bright-line rule restricting the amount of time that can pass between a startlin g event and an excited utterance; the key factor is whether the declarant is still under the stress of the startling event. See F ED
. R. E VID . 803(2) (containing no time element); F ED
. R.
E VID . 803(2) advisory committee’s note; United States v . Farley , 992 F.2d 1122, 1126 (10th Cir. 1993). Here, the district court fo und that the officers’ entry into the house with a battering ram was a startling even t. The court determined that Harper was still very upset and had not fully recov ered from that event at the time he made the statements. The district court did notabuse its discretion in admitting Harper’s statements under Rule 803(2). Thomas also contends that admitting Harper’s hearsay statements violated3 The hearsay rule and the confrontation clause address similar concerns. They are

not, however, identical rules. See, e.g. , F ED
. R. EVID . Article VIII advisory committee notes. Therefore, we analyze the two issues separately. - 9 - his Sixth Amendment right to confront witnesses aga inst him. 3 A trial court should allow the admission of a hearsay statement a gainst a criminal defendant “only if it bears adequate ‘indicia of reliability. ’” Ohio v. Roberts , 448 U.S. 56, 66 (1980). “Reliability can be inferred without mo re in a case where the evidence falls within a firmly rooted hearsay exception.” I d. We have previously held that the “excited utterance” exception embodied in Rule 803(2) is a “firmly rooted” exception to the hearsay rule. See United States v. Jackson , 88 F.3d 845, 847 (10th Cir. 1996) (citing White v. Illinois , 502 U.S. 346, 355 n.8 (1992)). Thus, the admission of Harper’s excited utterances under Rule 803(2) did not violate Harper’s Sixth Amendment right of confrontation. Thomas argues that Harper’s statements were not rel iable because they tended to exculpate Harper and incriminate Thomas. Cf. Lee v. Illinois , 476 U.S. 530, 541 (1986) (noting that “when one person accus es another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect”). However, be cause the hearsay statements at issue here fall within a firmly rooted exception to the hearsay rule, the court properly inferred that the statements were sufficie ntly reliable to be admitted. See Roberts , 44 U.S. at 66. Therefore, the district court did not err in stating that4As a general rule, we refer to the version of the guidelines that was in effect at

the time of the defendant’s sentencing. SeeUnited States v. Moudy , 132 F.3d 618, 620 n.1 (10th Cir.), cert. denied , 118 S. Ct. 1334 (1998). - 10 - the exculpatory nature of Harper’s statements would go only to the weight to be given them by the jury. 3. Sentencing for Crack Cocaine Thomas contends that he should have been sentenced for powder cocaine rather than for crack cocaine (which carries a heav ier penalty) because the government failed to prove that the substance invol ved was crack cocaine. Because he did not raise this issue at trial, we re view only for plain error. See United States v. Walker , 137 F.3d 1217, 1219 (10th Cir. 1998) (citing F ED
. R. C RIM
. P. 52(b)). We find no error here. Two forensic scientists tes tified for the government that the substance Epperson bought was crack cocain e. The defendant offered no evidence to rebut that testimony. The district cou rt did not commit plain error in sentencing for crack cocaine. 4. Constitutionality of Sentencing Guidelines’ Disparate Treatment of Crack and Powder Cocaine Next, Thomas asserts that the disparity in the sent encing provisions for crack cocaine and powder cocaine is unconstitutiona l. See U.S. S ENTENCING G UIDELINES M ANUAL (U.S.S.G.) § 2D1.1(c) (drug table) (1995 4 ) (treating one- 11 -

gram of crack as equivalent of 100 grams of powder cocaine for sentencing purposes). Thomas argues that the harsher penaltie s for crack cocaine disproportionately affect black defendants in violation of the Constitution. Although the defendant does not cite to a specific provision of the Constitution, we assume he intends to bring his argument under th e Equal Protection and Due Process clauses of the Fourteenth Amendment, as hav e other defendants. See,
e.g. , United States v. Ashley , 26 F.3d 1008, 1013 (10th Cir. 1994). Thomas failed to raise this issue below, so we revi ew for plain error. See Walker , 137 F.3d at 1219. We have repeatedly rejected cl aims that section 2D1.1(c) violates the constitutional guarantees of equal protection and due process. See, e.g. , Ashley , 26 F.3d at 1013; United States v. Thurmond , 7 F.3d 947, 950-53 (10th Cir. 1993). Thus, we reject Thom as’s attack on the constitutionality of section 2D1.1. 5. Recusal Finally, the defendant argues that the district cou rt judge should have recused himself from sentencing. Specifically, Tho mas argues that certain comments made by the judge to the jury after they r eturned their verdict demonstrated the judge’s bias against the defendant . Thomas filed a motion for recusal after those comments, which the district co urt denied. We review the denial of that motion for abuse of discretion. See Cauthon v. Rogers , 116 F.3d- 12 -

1334, 1336 (10th Cir. 1997). The district court judge made the following comment s to the jury: This trial has really involved you through a large picture window view of a sad part of our society, one that has many, many victims and one that involves enormous cost, not the least of which is simply the trial that we went through and the investigatio n and the effort and production of the people here in court to provide t heir testimony, and the fact that we have this . . . illegal industry, the scourge on the public that is traveling across this country where drugs are -- illegal drugs are imported and sold on the street. R.O.A. vol. 8 at 8. “Any justice, judge, or magistrate of the United St ates shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The court must ask “whether a reasonable person, knowing all the relevant facts, would harbo r doubts about the judge’s impartiality.” United States v. Cooley , 1 F.3d 985, 993 (10th Cir. 1993) (citation and internal quotation marks omitted). We agree wi th the district court and the government that the statements quoted above amount to no more than what “Congress was saying to all of us when it passed th ese [drug] laws,” R.O.A. vol 9 at 19 (comments of district court at sentencing)—i. e., that drug use and drug dealing are significant problems in the United Stat es. These statements do not demonstrate partiality. The district court did notabuse its discretion in denying the motion to recuse.- 13 - C ONCLUSION For the reasons stated above, we AFFIRM the jury’s verdict and the sentence imposed upon the defendant. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge