2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-15-2004

USA v. Sparrow

Precedential or Non-Precedential: Precedential

Docket No. 02-3571

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Recommended Citation

"USA v. Sparrow" (2004). 2004 Decisions. Paper 555.

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PRECEDENTIAL

UNITED STATES 

COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 02-3571

 

UNITED STATES OF AMERICA

v.

GAYLORD SPARROW,

Appellant

 

On Appeal from the 

United States District Court

for the Eastern District of Pennsylvania

D.C. Criminal Action No. 99-cr-00290

(Honorable Harvey Bartle, III)

 

Submitted Under Third Circuit LAR

34.1(a)

March 23, 2004

Before: ROTH, AMBRO, and

CHERTOFF, Circuit Judges

(Opinion filed June 15, 2004 )

Stephen J. Binhak, Esq.

3103 Philmont Avenue

Huntingdon Valley, PA 19006

Attorney for Appellant

Patrick L. Meehan

United States Attorney

Laurie Magid

Deputy United States Attorney

Emily McKillip

Assistant United States Attorney

Judy Goldstein Smith

Assistant United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Attorneys for Appellee

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge

Gaylord Sparrow seeks a writ of

habeas corpus in regard to his conviction

and sentence under 18 U.S.C. § 924(c) —

possession of a firearm in furtherance of a

drug trafficking crime. He argues that the

facts of the case do not support his

conviction. We disagree and affirm the

District Court’s decision to deny his

habeas petition.

I. Factual and Procedural Background

Sparrow sold marijuana out of a

convenience store on Chew Avenue in

Philadelphia. Acting on complaints from

citizens, the Philadelphia police conducted

surveillance on the store. A search

warrant was obtained and executed in

March 1999. During the search, police

found a concealed compartment under the

floor tiles behind the counter. The

compartment contained nine large Ziploc

bags of marijuana, $140 in cash and a
2

loaded Jennings .22 caliber pistol.1 In

addition, a key to the store was found in

Sparrow’s pocket, and he was the only

tenant on the lease. Sparrow admitted

possession of the gun. He now alleges,

however, that the police had to pry the

floor tiles up with a crowbar to gain access

to this compartment. 

After spending ten months as a

fugitive, Sparrow ultimately was

apprehended and pled guilty to: (1) one

count of distribution of marijuana and one

count of possession with intent to

distribute marijuana, both in violation of

21 U.S.C. § 841(a)(1); (2) two counts of

being a felon in possession of a firearm, 18

U.S.C. § 922(g); and (3) possession of a

firearm in furtherance of a drug trafficking

crime, 18 U.S.C. § 924(c). The District

Court imposed a sentence of sixty months

imprisonment for the distribution and felon

in possession counts and a consecutive

sixty-month sentence for the § 924(c)

count. Sparrow appealed his sentence (on

an issue unrelated to his current petition)

and we affirmed the judgment of the

District Court in July 2001.

Sparrow then filed a petition for a

writ of habeas corpus pursuant to

28 U.S.C. § 2255, alleging ineffective

assistance of counsel. He argues that the

facts established in the plea agreement and

hearing were insufficient to sustain his §

924(c) conviction. Therefore, he contends

it was error for counsel to permit him to

plead guilty to this count. The District

Court denied Sparrow’s petition and his

request for a certificate of appealability.

We granted the request for a certificate of

appealability on “whether the facts of the

case support a conviction for possession of

a gun in furtherance of a drug trafficking

crime.”2

II. Standard of Review

To the extent this case turns on

statutory interpretation, such as the legal

requirements for proving a § 924(c)

conviction, we exercise plenary review.

United States v. Cepero, 224 F.3d 256, 258

(3d Cir. 2000) (en banc); see also United

States v. Mackey, 265 F.3d 457, 460 (6th

Cir. 2001) (discussing § 924(c)). Whether

Sparrow’s possession of a firearm was in

furtherance of his drug trafficking

activities, however, is a sufficiency of the

evidence question. United States v.

Lomax, 293 F.3d 701, 705 (4th Cir. 2002),

cert. denied, 537 U.S. 1031 (2002); United

States v. Ceballos-Torres, 218 F.3d 409,

411 (5th Cir. 2000). Therefore, we

examine the “totality of the evidence, both

direct and circumstantial,” and must credit

“all available inferences in favor of the

government.” United States v. Gambone,

 

1

 While not relevant to the resolution of

this case, the search also uncovered the

following: (1) two large bags of marijuana

and forty dollars on the store counter-top,

and (2) thirty-one large bags of marijuana,

fifty-seven small packets of marijuana and

a scale above the steps leading to the

cellar.

 

2

 We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253.
3

314 F.3d 163, 170 (3d Cir. 2003) (citations

omitted), cert. denied, 124 S. Ct. 67

(2003). 

III. Analysis

Sparrow argues that possession of

the loaded pistol was not in furtherance of

his drug trafficking crimes because an

insufficient factual nexus exists between

the two. Although our Court has not

decided this issue in a precedential

opinion3, the facts of this case and a

review of relevant case law satisfy us that

the evidence supports Sparrow’s

conviction.

Under § 924(c), the “mere

presence” of a gun is not enough. “What

is instead required is evidence more

specific to the particular defendant,

showing that his or her possession actually

furthered the drug trafficking offense.”

Ceballos-Torres, 218 F.3d at 414; see also

Mackey, 265 F.3d at 462 (stating “that the

possession of a firearm on the same

premises as a drug transaction would not,

without a showing of connection between

the two, sustain a § 924(c) conviction”).

Put another way, the evidence must

demonstrate that possession of the firearm

advanced or helped forward a drug

trafficking crime. Lomax, 293 F.3d at

705; Ceballos-Torres, 218 F.3d at 414. In

making this determination, the following

nonexclusive factors are relevant:

the type of drug activity that

i s being condu cted,

accessibility of the firearm,

the type of the weapon,

whether the weapon is

stolen, the status of the

possession (legitimate or

illegal), whether the gun is

loaded, proximity to drugs

or drug profits, and the time

and circumstances under

which the gun is found.

Id. at 414-15; see also Lomax, 293 F.3d at

705; United States v. Timmons, 283 F.3d

1246, 1253 (11th Cir. 2002), cert. denied,

537 U.S. 1004 (2002); Mackey, 265 F.3d

at 462. 

Sparrow’s argument is premised on

the fact that the pistol was found

underneath the floor tiles. Because

(according to Sparrow) the police needed

a crowbar to gain access to the secret

compartment, the firearm could not have

been in furtherance of his drug trafficking

activities. See Mackey, 265 F.3d at 462

(stating “the firearm must be strategically

located so that it is quickly and easily

available for use” (citation omitted));

United States v. Lawrence, 308 F.3d 623,

630 (6th Cir. 2002) (reversing § 924(c)

conviction when firearm was found

unloaded, in a cupboard and “wrapped in

the same newspaper in which it was

covered at the time of delivery”); United

States v. Iiland, 254 F.3d 1264, 1274 (10th

Cir. 2001) (reversing conviction because

the Government produced “no evidence

that the gun and drugs were ever kept in

the same place or that [the defendant] ever

 

3

 We did address it, however, in a not

precedential opinion–United States v.

Morgan, 33 Fed. Appx. 603 (3d Cir.

2002).
4

kept the gun accessible when conducting

drug transactions”).

While the location of a firearm is

adm ittedly relevant, immediat e

accessibility at the time of search or arrest

is not a legal requirement for a § 924(c)

conviction. The only court to state or

imply this is Mackey, but its statement

must be analyzed in context. See 265 F.3d

at 462 (stating that accessibility and the

Ceballos-Torres factors merely help “to

distinguish possession in furtherance of a

crime from innocent possession of a

wall-mounted antique or an unloaded

hunting rifle locked in a cupboard”). Even

the Sixth Circuit does not interpret its

Mackey decision as requiring immediate

accessibility. United States v. Nance, 40

Fed. Appx. 59, 66 (6th Cir. 2002) (“One

way to demonstrate ‘possession in

furtherance’ is by showing the guns were

strategically located for quick and easy

use. The Mackey court also recognized as

helpful the [Ceballos-Torres] factors . . . .”

(emphasis added) (citations omitted)), cert.

denied, 537 U.S. 989 (2002). 

In fact, a number of courts have

upheld § 924(c) convictions when the

firearm in question was not easily or

immediately accessible. See United States

v. Garner, 338 F.3d 78, 80-81 (1st Cir.

2003) (affirming conviction when firearms

and drugs were found in a hole in a wall of

a building’s common basement and the

defendant was selling drugs out of an

apartment in the building), cert. denied,

124 S. Ct. 948 (2003); United States v.

Luciano, 329 F.3d 1, 3-6 (1st Cir. 2003)

(affirming conviction when a firearm and

drugs were found in a ceiling crawlspace,

requiring the agent to stand on a chair and

climb into the crawlspace); Morgan, 33

Fed. Appx. at 605-606 (affirming

conviction when firearms and drugs were

found together in a drop ceiling while the

defendant was away from his apartment);

Bressi v. United States, No. Civ. A. 01-

407, 2001 WL 395289 (E.D. Pa. Apr. 5,

2001) (denying a habeas petition when a

firearm and drugs were found in a locked

safe).

Examining the facts of the case,

many of the Ceballos-Torres factors are

satisfied. As a prior felon, Sparrow may

not legally possess a firearm. In addition,

the firearm in question was loaded, found

in a public store and kept in the same floor

compartment as nine large Ziploc bags of

marijuana and $140 in cash. Even

assuming (as Sparrow claims) the firearm

was not easily accessible, it was

strategically located. The gun was placed

so that it would be immediately available

for Sparrow’s protection whenever he

retrieved drugs or money from the floor

compartment. Therefore, it is reasonable

to assume the firearm was placed in the

floor compartment for that purpose and

was possessed in furtherance of Sparrow’s

drug activities.

* * * * *

In this context, sufficient evidence

exists to support Sparrow’s § 924(c)

conviction. As such, his attorney’s advice

to plead guilty does not constitute

ineffective assistance of counsel. His

petition for a writ of habeas corpus is
5

denied and the District Court’s decision is

affirmed.