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UNITED STA TES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

No. 02-3571

UNITED S TATES OF AMERI CA

v.
GAYL ORD S PAR ROW,

Appellant

On Appeal from the United S tates District Court for the Easte rn D istrict of P enns ylvania D.C. CriminalAction No. 99-cr -00290 (Hon orable H arvey Bartle, III)

Sub mi tted Und erThi rd Ci rc ui t L AR

34.1(a) March 23, 2004
Before: ROTH, AM BRO , and CH ER TO FF , Circuit

Judges
(Opinion fi led June 15, 2004 )
Stephen J. Binhak, Esq. 3103 Philmont Avenue Huntingdon Valle y, PA 19006
Attorneyfor Appell

ant Patri ck L. Meehan

United States Attorney Lau rie M agid Deputy United State s Attorne y Em ily McK illip Assist ant Unite d States Attorney Judy G oldstein Sm ith Assist ant Unite d States Attorney 615 Chestnut St

reet Philadelphia, PA 19106
Attorney s for Appel lee

OPINI ON OF THE COURT

AM BR O, Circuit

Judge Gaylord Sp a rrow seeks a wri t of habeas corpus in regard to his conviction and sentence under 18 U .S.C. § 924 (c) — possessi on of a f irearm in further ance of a drug tr af fi ck in g c ri me. He argues that the facts of the case d o no t supp ort his conviction. We disagr ee and affirm the Distri ct Co urt’s de cision to deny his habeas petit

ion. I. Fac tual and Procedur al Backgr ound Sparrow sold mari

juan a out of a convenience store o n C hew Av enue in Philadelphia. Acting on co mplaint s from citizens, th e Philadelphia poli ce conducted survei llanc e on the store. A se arc h warrantwa s obta i ned a nd ex ecute d in March 1999. During t he search, police found a conceale d compartmentunder the floo r til es behind t

he counter . The compartmentcontai ned nine l arge Zipl oc bags of marij uana, $140 i n cash and a2

loaded Jennings . 22 ca lib er pisto l. 1 In add iti on, a key to the st ore was fou nd i n Sparrow ’s pock et, and he w as the o nly tenant on the le ase. Spar

row admitte d possessi on of the gun. He now alleges, how ever, that the police had to pry the floortil es up with a crowbar to gain access to th is co mp artm ent. After spending ten m onth s as a fugiti ve, S parro w u lti mat el y wa s apprehended and p led gu ilty to: ( 1) one count of dist

ribution of

marijuana and one count of p osses sion w ith inten t to distri but e marijuana, both in viol ation of 21 U.S.C. § 841(a)(1); (2) two counts o f being a felon i n possessi on of a fi re ar m, 18 U.S .C. § 922(g ); and (3) poss ession of a firearm in furt

herance of a drug tr afficki ng crime, 18 U. S.C. § 924( c). Th e Distri ct Cou rt imposed a sentence of sixty months impris onment for the dist ribu tion and f

elon in possessi on counts and aco nsecuti ve sixty-mo nth sentence for the § 924( c)
coun t. Sparrow appealed hi s sente nce (on
an issue unrelat ed to his current petit ion) and we affirmed the j udgment of the Distri ct Court i n July2001. Sparrow then fi led a peti tion for a wri t of habeas corpus pursu ant t o 28 U.S.C. § 2255, al le ging inef fecti ve as s ist ance of counsel. He argues that the facts establ ished i n the ple a agreement and hearin g we re insufficient to sustain his § 924(c) conviction. Ther efore, he contends it was error for

counsel to perm it him to plead gui lty to this cou nt. The Distri ct Cou rt denie d Sp arrow ’s petition and h is request for a c ertificate of ap peala bili ty

. We granted t

he request

for a certific ate of appe alability on “ wh e ther t he facts of the
case support a

conviction forpossessi on of
a gun in furt

herance of a drug tr afficki ng crim e.” 2
II. St andard of Review
To the ext ent thi s case turns on statutory inter

pretat ion, s uc h as the l egal requ ireme nts for provi ng a § 924(c) conviction, we exerci se pl en ary re vi ew. United States v. Cepe ro , 224 F.3d 256, 258 (3d Cir. 2000) (en b a nc); see also United States v. Mackey , 26 5 F.3 d 45 7, 460 (6th Cir. 2001) (disc ussing § 924(c)) . Whether Sparrow ’s possessi on of a fire ar m was in further ance of his d ru g traffi cking acti viti es, however, is a suf fici ency of t

he evidence que stion

. United States v. Lomax , 293 F.3d 701, 705 (4th Cir. 2002 ), cert. denied , 537 U .S. 103 1 (20 02); United St ates v. Ceball os-Torre s , 218 F.3d 409, 411 (5th Cir . 2000 ). The re fo re , w e examine the “to tality of the e viden ce, bo th direct and circ umstanti al, ” and must credit “al l a vailable inf

erences i n favor of the gov ern me nt.” United States v. Gambone , 1 While not r elevant

to the resolution of this case, t

he search a lso u nco vered the following: (1) t wo large bags of marijuana and forty dollars on the store counter- top, and (2) thirty- one large bags of marij uana, fifty- seven sma ll pack ets of marij uana and
a scale a bov e the ste ps lead ing to th e cellar. 2 We have juri sdiction under28 U. S. C. §§ 1291 and 2253.3

314 F.3d 163, 170 ( 3d Cir. 2003) (cit ations omitted), cert. denied , 124 S. Ct. 67 (20 03)

. III. A naly sis Sparrow argues that posse s s ion of the loaded pi stol was not in further ance of his drug tr afficki ng crimes be ca use an insuffi cient

factual nexus e x ist s between the two. Although our Court has not decided this issue i n a pr ecedenti al opinion 3
, th e facts of this case and a review of

relevant case law sati sfy us that the ev id en ce su ppo rt s S pa rr ow’ s conviction. Under § 924(c ), the “mere presence” of

a gu n is not

enough. “What is instead required is evidence m ore speci fic to the p articular defe ndan t, showing that

his or he r poss ession actua lly furthered the d rug traf fick ing off ens e.” Ceballos- Torres , 218 F.3d at 414 ; see also Mackey , 265 F.3d at 462 (stating “t hat the possessi on of afi re ar m on t he s ame premises as a dru g trans action wo uld n ot, withouta showing of

connecti on between the two, sustain a § 924(c) co nviction”). Put another way , the evide nce must dem onstra te that pos sessi on of the firearm advanced or helped f orward a drug tr afficki ng crim e. Lomax , 293 F.3d a t 705; Ceballos- Torres , 218 F.3d at 414. In making this dete rmin at ion, t he foll owing
non exclu sive fa ctors a re relev ant: the ty pe of drug activity that i s being co ndu cted , acce ssibility of

th e fire ar m, the ty pe of the we apon, whether the w eapo n is stol en, the statu s of the possessi on (l egi ti ma t e or ill ega l ), wh ether th e gun is loaded, prox imity to drugs
or drug profit s, and t

he ti me and circumst an c es under which the gun i s found. Id. at 414-15; see also Lomax , 293 F.3d at 705; United States v. Tim m ons , 283 F.3d 124 6, 125 3 (11 th Cir . 200 2), cert. denied , 537 U.S . 1004 (200 2); Mackey , 2 65 F.3d at 46 2. Sparrow ’s argu men t is premised on the fact that the pi stol was found und ernea th the floor ti les. Because (accordi ng to Sparr ow) the poli ce needed
a crowbar to gain access to th e secret
com partm ent, the fi rearm cou ld not have been in furth eranc e of h is drug tr afficki ng ac tiviti es. See Mackey , 265 F.3d at 462 (stating “the f

ir earm mu st be stra tegica lly locat ed so tha t it is quick ly and ea sily availa ble for use” (citation o mitted)) ; United States v. Lawrence , 308 F.3d 623, 630 (6th Cir. 2002 ) (revers ing § 924(c) conviction whe n firearm was found unloaded, in a cup boar d and “w rapp ed in the same n e wspaper in which i t was
cover ed at the tim e of d elivery”); United States v. Ii land , 254 F.3d 126 4, 127 4 (10 th Cir. 2001) (r eversing conviction because th e G overnment produc ed “no evidence that the gun and drugs wer e ever k ept in the sa me place or that [ the de fend ant] ever 3 We did address i t, however, in a not precedential opinion– United States v. Morgan , 33 Fed . Appx . 603 (3d C ir. 2002).4

kept the gun ac ces sibl e when conducting drug transac tions”). Wh ile the loc ation o f a fire arm is adm ittedly releva nt, i mmediat e acce ssibility at the time of se arch orarrest is not a le gal requirement for a § 924 (c ) conviction. The only court to state or imply this is Mackey , but i ts st atement must be a nalyz ed in con text. See 265 F.3d at 462 (stating t

hat acces sibi lit

y and t h e Ceballos- Torres factor s merely he lp “to di sti nguish possessi on in furt herance of a
cr ime from innocent

possessi on o f a wall-mounte d antique or an unloaded hunting rifle locked i n a cupboard”) . Even the Sixth Circu it does n ot interp ret its Mackey dec is io n as re qui ri ng i mm edi ate
ac ce ss ib ilit y. United States v. Nance , 40 Fed. App x. 59, 66 (6th C ir. 2002) (“ One way to dem onstra te ‘pos session in furthe ra nce’ is by showing the guns w ere strategic ally l ocated for quick and easy
use. The Mackey court al so recogni zed as helpful the [ Ceballos- Torres ] factors .

. . .” (emp hasis a dde d) (c itatio ns o mitte d)), cert

. denied , 537 U.S . 989 (20 02)

. In fact, a number of c ou rts ha ve uph eld § 924(c) convi ction s when the firearm in question wa s not eas ily or imm ediate ly acc essib le. See United States v. Ga rner , 338 F .3d 78, 80-8 1 (1st Cir. 2003) (affirming conviction when firearm s and drugs w ere fou nd in a hole in a wall of
a bui lding’ s common basement and the defendant was sell ing drugs out of an apartm e nt in th e bu ildin g), cert. denied , 124 S. C t. 948 (2 003 ); Unite d St a tes v. Lucian o , 329 F.3d 1, 3- 6 (1st Ci r. 2003) (affirming con vic tion when a fi rearm and drugs were found in a cei ling cr awlspace, requiring the agent

to st and on a chair

and cl imb into t he cra wlsp ace); Morgan , 33 Fed. App x. at 605 -606 (affirm in g conviction whe n fi rearms an d drugs w ere found toge t her in a drop ceil ing while t he defendantwas away from his apartmen t) ; Bressi v. Unite d S tate s , No. Civ. A. 01- 407, 2001 WL 395289 (E.D. Pa. Apr. 5, 2001) (deny ing a habeas petiti on when a firearm and drugs were found i n a locked safe). Examining the facts of t he case, many of the Ceballos- Tor res factors are sati sfied. As a prior

felon, Sparrow may not legallypossess a firearm. In addi tion, the firearm in questi on was loaded, f ound in a public store and kept i n the same fl oor compartmen t as nine l arge Zipl oc bags of marijuana and $140 in ca sh. Even assuming (a s Sparrow claims) the firearm
was no t ea sil y a cce ssib le, i t was strategic ally locat ed. The gun was place d
so that i t wou ld be imm ediate ly available for Spa rrow ’s prote cti o n whenever he
r etri eved drugs or moneyfrom the fl oo r com partm ent. The refor e, it i s reaso nable to assume the firea rm was placed i n the floorcompartment fo r th at purpos e and
was possesse d in furt

herance of

Sparrow ’s drug activiti es. * * * * *
In this context , suffi cie nt evide nce exists to support

Sparrow’s § 924( c) conviction. As such, his attorney’s advice to plead gui lty

does notc onstitu te ineffective a ssistanc e of c oun sel. H is petit ion for a writ

of h abeas corpus is5

denied and th e D istrict Co urt’s de cision is affirmed.