United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2802

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Eastern District 

* of Arkansas. 

Pierre Bell, *

*

Appellant. *

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Submitted: January 8, 2007

 Filed: February 21, 2007

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Before WOLLMAN, BEAM, and MELLOY, Circuit Judges.

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MELLOY, Circuit Judge.

Pierre Bell was charged with possession with intent to distribute crack cocaine

in violation of 21 U.S.C. § 841(a)(1); possession of a firearm after being convicted of

a felony in violation of 18 U.S.C. § 922(g)(1); and possession of a firearm during and

in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). Bell moved

to suppress statements he made to law enforcement officers, alleging his statements

were involuntary. The district court denied Bell’s motion, and the case proceeded to

trial. A jury found Bell guilty of all three offenses. 
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In determining the appropriate advisory Guidelines sentencing range for Bell,

the district court declined to group Bell’s felon in possession and drug trafficking

offenses, resulting in a one-level increase in his offense level. Bell was sentenced to

144 months of imprisonment for the drug offense and 120 months of imprisonment

for the felon in possession count, with these terms to be served concurrently. The

court sentenced Bell to a consecutive term of 60 months on the other firearm offense,

as required by § 924(c). 

Bell raises three issues on appeal. First, Bell appeals the district court’s denial

of his motion to suppress. Second, Bell asserts there was insufficient evidence to

support the jury’s verdicts of guilty. Third, Bell challenges the district court’s failure

to group two of his three offenses in determining his advisory Guidelines range. For

the reasons stated below, we affirm the district court’s denial of Bell’s motion to

suppress and affirm the convictions. We remand, however, for resentencing in

accordance with this opinion. 

I. Background

On November 4, 2004, members of the Pine Bluff Police Department and the

Tri-County Drug Task Force executed a search warrant at 309 East 21st Street in Pine

Bluff, Arkansas. Bell was present, as were the residence’s occupants: Reecie

Humphrey and her children. When officers entered the home, they found Bell and

Humphrey in bed. Officers located a revolver between the mattresses on Bell’s side

of the bed. A pair of pants lay on the bedroom floor. In the pants pocket officers

found a wallet containing Bell’s identification, approximately seven grams of crack

cocaine, a key ring with a key to the house, and over $300 in currency. In the same

room, officers found a small amount of marijuana and a pill bottle containing powder

cocaine. Officers arrested Bell and Humphrey; both Bell and Humphrey made
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statements to law enforcement officers. The instant federal charges against Bell

followed. 

Bell moved to suppress his statement, alleging it was involuntary. At a

suppression hearing on January 12, 2006, the government and Bell presented

contrasting accounts of the execution of the search warrant. The government

presented testimony from officers involved in the search. The officers testified that

as they entered the bedroom occupied by Bell and Humphrey, they saw Bell slide to

the floor and reach towards the bed as though he was trying to retrieve something.

The revolver was discovered in the area where Bell had reached. 

Bell and Humphrey were naked when the officers entered the bedroom; they

were allowed to don clothing. Officers arrested both Bell and Humphrey and seated

them in the living room. Eventually, Officer Oscar Bullard removed Humphrey to a

pantry-type room, where Humphrey provided a written statement. In her statement,

Humphrey said the drugs and the gun found during the search were Bell’s. She stated

Bell brought those items to her house early that morning. 

After Humprey gave her statement, Officer William Roulhac interviewed Bell

in the kitchen. Officer Roulhac testified he provided Bell with his Miranda rights and

Bell agreed to speak with him. Bell admitted the seized crack cocaine belonged to

him. He also admitted the gun was his, providing a description of the firearm

consistent with its appearance. Bell began to write a statement, using his own words.

Bell wrote “the work that was in the girls house is mine.” When Officer Roulhac

asked about the meaning of “work,” Bell explained work is the equivalent of crack,

selling crack. Officer Roulhac felt future readers of the statement might not

understand the vernacular Bell used, so he stopped Bell from completing his statement

and began writing one for him. Officer Roulhac testified Bell agreed to allow Officer

Roulhac to write for him. Bell reviewed and signed the completed statement. Among
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other things, the statement acknowledges the gun and the crack found in the house

belong to Bell. 

Humphrey testified at the suppression hearing that her written statement was

false. She alleged a police officer told her to say all of the items were Bell’s and

threatened the removal of her children if she failed to cooperate. She testified officers

threatened and assaulted Bell. She stated the seized revolver was hers and she lied

about the ownership of the gun because she was afraid she would lose her housingassistance payments if she told the truth about the gun.

Bell also testified at the suppression hearing. He testified officers held a

machine gun to his head after they found him naked in bed. He claimed officers

assaulted him and threatened him with a taser gun. He stated he asked to talk to his

lawyer, but his request was ignored. He testified he scribbled his name on the

statement written by Officer Roulhac only after these alleged transgressions. He

denied the statement was true. 

The district court credited the officers’ testimony “in all material particulars.”

The court found Bell was provided with a written Miranda warning. It concluded

Officer Roulhac read the written statement he drafted to Bell, Bell did not object to

the statement, and Bell signed the statement. “Based on the entire record,” the court

concluded Bell’s statement was voluntarily made after an intelligent and knowing

waiver of his Miranda rights. The court did not credit the testimony of Bell or

Humphrey. 

Bell proceeded to trial. At trial, in addition to the evidence presented at the

suppression hearing, the government presented expert testimony regarding the drugs

seized and the relationship between drugs and guns. Arkansas State Police Sergeant

Don Sanders testified that the amount of crack cocaine found in Bell’s pants pocket

was consistent with sale or distribution, not personal use. He further testified drug
1 The Guidelines sentence for a § 924(c) conviction is the statutory

mandatory minimum of 60 months’ imprisonment. See U.S.S.G. § 2K2.4(b). Thus,

there is no offense level for that count. 

2 The Guidelines grouping rules do not apply to convictions under 18 U.S.C.

§ 924(c). U.S.S.G. § 3D1.1(b)(1). 

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dealers commonly possess firearms to protect themselves, their illegal goods, and their

illegal proceeds. 

Humphrey testified for the defense. As at the suppression hearing, Humphrey

testified her prior statement, which was introduced into evidence during the

government’s case in chief, was false. Her testimony conflicted with that presented

by the government in many respects. For example, she testified Bell did not slide to

the floor as the officers entered the room. She claimed ownership of the gun and

denied Bell knew it was in the home. The jury found Bell guilty of all counts. 

At sentencing, the parties did not contest the base offense levels applicable to

Bell’s counts of conviction: an offense level 26 for Bell’s conviction for possession

with intent to distribute and an offense level 20 for his felon in possession conviction.1

No offense characteristic enhancements were applied to either count. 

Over Bell’s objections, the court declined to group the felon in possession and

possession with intent to distribute counts into a single group.2

 Instead, the court

applied a multiple count adjustment. See U.S.S.G. § 3D1.4. The court added a onelevel increase to the highest offense level, 26, resulting in a total offense level of 27.

Bell qualified as a criminal history category VI, resulting in an advisory Guidelines

range of 130 to 162 months. Had the counts been grouped, the range would have been

120 to 150 months. 
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The district court sentenced Bell to 144 months for the drug offense and 120

months for the felon in possession conviction, to be served concurrently. The court

imposed a consecutive term of 60 months’ imprisonment for the remaining count, for

a total of 204 months’ imprisonment. 

II. Discussion

A. Motion to Suppress

“We review the district court’s factual determinations in support of its denial

of a motion to suppress for clear error and its legal conclusions de novo.” United

States v. Harper, 466 F.3d 634, 643 (8th Cir. 2006). We “will affirm the district

court’s denial of a motion to suppress evidence unless it is unsupported by substantial

evidence, based on an erroneous interpretation of applicable law, or, based on the

entire record, it is clear a mistake was made.” United States v. Annis, 446 F.3d 852,

855 (8th Cir. 2006) (internal quotation omitted). 

Bell does not contest he was provided with his Miranda rights. He contends his

statements were involuntarily made – the result of threats and coercion – and therefore

should have been suppressed, despite the Miranda warnings. A defendant’s

statements after being advised of his Miranda rights may be used against him if he

knowingly and voluntarily waived his rights. See id. (citing, inter alia, Missouri v.

Seibert, 542 U.S. 600, 608 n.1 (2004)). “A waiver is ‘knowing and intelligent’ where

it is made with full awareness of both the nature of the right being abandoned and the

consequences of abandoning the right, and a waiver is ‘voluntary’ where the court can

determine that the waiver was a product of the suspect’s free and deliberate choice,

and not the product of intimidation, coercion, or deception.” Thai v. Mapes, 412 F.3d

970, 977 (8th Cir. 2005). The totality of the circumstances inform whether a

“defendant’s will was overborne,” making his statement involuntary. Annis, 446 F.3d

at 855. 
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The district court’s finding that Bell’s written statement was voluntarily made

was based upon the court’s credibility determination. Because the government and

the defense witnesses presented conflicting accounts of the conditions under which

Bell provided his statements, credibility was the determining factor. “[C]redibility is

a determination for the trier-of-fact, and its assessment is virtually unassailable on

appeal.” United States v. Rodriguez, 414 F.3d 837, 845 (8th Cir. 2005). After

presiding over the suppression hearing, observing the witnesses, and considering the

evidence, the district court credited the testimony of the law enforcement officers,

who denied abusing, assaulting, or threatening Bell, and concluded the contrary

testimony provided by Bell and Humphrey was not credible. This determination is

properly the province of the district court. See United States v. Mendoza-Gonzalez,

363 F.3d 788, 794 (8th Cir. 2004) (“The district court is in the best position to judge

the credibility of witnesses who testify before it . . . .”). We find the district court did

not clearly err in finding Bell’s statement to be voluntary. Thus, we affirm the district

court’s denial of Bell’s motion to suppress. 

B. Sufficiency of the Evidence

Bell challenges the sufficiency of the evidence as to each count of conviction.

“Our standard of review concerning whether the evidence is sufficient to support a

conviction is strict.” United States v. Savatdy, 452 F.3d 974, 976 (8th Cir. 2006).

“We review the evidence in the light most favorable to the government, resolving

evidentiary conflicts in favor of the government, and accepting all reasonable

inferences drawn from the evidence that support the jury’s verdict.” United States v.

Spencer, 439 F.3d 905, 913 (8th Cir. 2006) (internal quotation omitted). We will

overturn Bell's convictions only if no reasonable jury could have found him guilty

beyond a reasonable doubt. See United States v. Stevens, 439 F.3d 983, 987 (8th Cir.

2006). Applying this standard, we conclude there was sufficient evidence to support

Bell’s convictions. 
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As to his conviction for possession with intent to distribute crack cocaine, the

government presented evidence that approximately seven grams of crack cocaine was

located in a pants pocket that also contained a wallet with Bell’s identification. The

pants were located in the room where Bell was found naked. The government

presented a written statement in which Bell admitted the crack was his. Officers

experienced with drug trafficking testified seven grams is greater than the amount of

crack one would have for personal use. Also, officers testified that no indicia of

personal use of crack cocaine – such as pipes – were found during the search. In

addition, the jury could consider Bell’s explanation of his use of the term “work,” that

it meant selling crack cocaine, in finding Bell possessed the crack cocaine and had the

requisite intent to distribute it. This evidence provided sufficient grounds for a

reasonable jury to find Bell guilty of possession with intent to distribute crack cocaine.

Regarding his conviction for being a felon in possession of a firearm, Bell

challenges whether there was sufficient evidence to demonstrate he possessed the

firearm in question. Evidence consistent with his possession included the officers’

observation of his movement apparently toward the gun upon their entry into the

room, the location of the gun under Bell’s side of the bed, Humphrey’s initial

statement that the gun belonged to Bell, and Bell’s statement claiming ownership of

the gun. Considering this evidence, a reasonable jury could conclude that Bell, who

is not contesting he is a felon, possessed the revolver charged in the indictment.

The evidence was sufficient to support Bell's conviction for possessing a

firearm in furtherance of a drug trafficking crime, as well. “To secure a conviction

under § 924(c)(1)(A), the government must present evidence from which a reasonable

juror could find a ‘nexus’ between the defendant’s possession of the charged firearm

and the drug crime, such that this possession had the effect of furthering, advancing

or helping forward the drug crime.” United States v. Sanchez-Garcia, 461 F.3d 939,

946 (8th Cir. 2006) (internal quotation omitted). Simply possessing drugs and a

firearm at the same time is insufficient to support a conviction under § 924(c). See
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Spencer, 439 F.3d at 914. However, evidence sufficient for convictions for both

possessing with intent to distribute cocaine base and possessing a firearm as a

prohibited person can be sufficient for a § 924(c) conviction, as well. See United

States v. Johnson, No. 05-3660, 2007 WL 313590, at *5 (8th Cir. Feb. 5, 2007) (“In

light of our determination there was sufficient evidence [the defendant] knowingly

possessed the firearm, and given [the defendant’s] conviction for possession with

intent to distribute cocaine base, we conclude sufficient evidence supports the jury’s

verdict on [the § 924(c)] count as well.”).

Based on the evidence presented at trial, a reasonable jury could find Bell

possessed the revolver in furtherance of his drug trafficking crime. Officers observed

Bell apparently reaching for the revolver when they entered the bedroom. The gun

was proximately located to the stash of crack cocaine in Bell’s pants pocket. In

addition, Sergeant Sanders testified that drug dealers often possess firearms to protect

themselves and their drugs. These facts, while not overwhelming, support an

inference that Bell possessed the revolver in furtherance of his possession with intent

to distribute the crack cocaine. See, e.g., Stevens, 439 F.3d at 989-90 (finding

evidence sufficient to support defendant’s § 924(c) conviction where, among other

things, the weapon was within close proximity to the dealer and the drugs and a

government witness testified to the common use of firearms to protect drugs, drug

dealers, and drug proceeds). Taking, as we must, these facts in the light most

favorable to the verdict, we conclude a reasonable jury could have found Bell guilty

of possessing a firearm in furtherance of a drug trafficking offense beyond a

reasonable doubt. 

A defendant challenging the sufficiency of the evidence “confronts a high

hurdle.” Spencer, 439 F.3d at 913 (internal quotation omitted). Bell has failed to

surmount that hurdle. We find there was sufficient evidence supporting each count

of conviction. 
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C. Sentencing

“We review de novo a district court’s determination on the grouping of

offenses.” United States v. Rugh, 968 F.2d 750, 755 (8th Cir. 1992). The Guidelines

provide for the grouping of certain offenses to “prevent multiple punishment for

substantially identical offense conduct.” U.S.S.G. Ch. 3, pt. D, introductory cmt. As

such, “[c]onvictions on multiple counts do not result in a sentence enhancement unless

they represent additional conduct that is not otherwise accounted for by the

guidelines.” Id. 

Section 3D1.2 outlines when multiple counts shall be treated as a single group.

The overarching principle embodied in § 3D1.2 is that “counts involving substantially

the same harm shall be grouped together into a single Group.” U.S.S.G. § 3D1.2.

One instance where multiple counts are considered to involve the same harm is when

“one of the counts embodies conduct that is treated as a specific offense characteristic

in, or other adjustment to, the guideline applicable to another of the counts.” U.S.S.G.

§ 3D1.2(c). Each of the relevant offenses includes conduct that is treated as specific

offense characteristics in the other offense. Section 2D1.1, the guideline applicable

to the crack offense, calls for a two-level increase in offense level “[i]f a dangerous

weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). Here, Bell

possessed a revolver and it was not “clearly improbable that the [revolver] was

connected with the [crack cocaine] offense.” U.S.S.G. § 2D1.1 cmt. n.3. The

guideline utilized for the felon in possession conviction, § 2K2.1, provides for fourlevel increase “[i]f the defendant used or possessed any firearm or ammunition in

connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5). As demonstrated

by Bell’s conviction for possessing the revolver in furtherance of his crack cocaine

offense, this enhancement is applicable to his offense conduct. Thus, both counts

“embod[y] conduct that is treated as a specific offense characteristic in, or other

adjustment to, the guideline applicable to” the other count and are properly grouped.

 U.S.S.G. § 3D1.2(c).
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Because “[f]irearms are the tools of the drug trade providing protection and

intimidation,” United States v. Linson, 276 F.3d 1017, 1019 (8th Cir. 2002), firearm

and drug trafficking offenses are frequently interrelated and result in reciprocal

offense characteristic enhancements. These counts therefore are grouped together

pursuant to § 3D1.2, often without note. See, e.g., Annis, 446 F.3d at 857 n.3

(implying grouping of defendant’s firearm and drug offenses); United States v. Pierce,

388 F.3d 1136, 1137 (8th Cir. 2004) (per curiam) (noting the parties agreed to the

grouping of defendant’s felon in possession and drug trafficking convictions); United

States v. Hellbusch, 234 F.3d 1050, 1052 (8th Cir. 2000) (commenting that dismissed

counts charging methamphetamine distribution and possessing a firearm as a felon

would have been grouped pursuant to § 3D1.2). Other circuits have specifically

recognized the propriety of grouping offenses treated under §§ 2D1.1 and 2K2.1. See,

e.g., United States v. King, No. 06-11696, 2006 WL 3006699, at *2 (11th Cir. Oct.

23, 2006) (unpublished) (upholding the grouping of drug trafficking offenses with a

felon in possession conviction because the gun count “embodies conduct that is

treated as a specific offense characteristic” of the drug counts); United States v.

Versey, 16 Fed. Appx. 500, 502 (7th Cir. 2001) (unpublished) (“Because the felon-inpossession count embodied conduct (possession of a firearm) treated as a specific

offense characteristic in the guideline applicable to the distribution count, the court

grouped the two counts and adopted the higher offense level . . . .”) (internal citations

omitted). 

Grouping of the felon in possession count and the drug count is proper even

though the applicable enhancements are not utilized. The Guidelines prohibit adding

gun-related offense characteristic enhancements for an offense underlying a § 924(c)

conviction (here the drug trafficking offense) because the § 924(c) conviction already

carries statutorily required incremental punishment – a mandatory consecutive 60

month term of imprisonment. See 18 U.S.C. § 924(c); U.S.S.G.§ 2K2.4 cmt. n.4 (“If

a sentence under this guideline is imposed in conjunction with a sentence for an

underlying offense, do not apply any specific offense characteristic for possession,
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brandishing, use, or discharge of [a] . . . firearm when determining the sentence for the

underlying offense.”). Likewise, the offense characteristic enhancement based upon

a related drug trafficking felony is unavailable for a felon in possession conviction

when there is also a § 924(c) conviction. U.S.S.G.§ 2K2.4 cmt. n.4 (noting that a

§ 2K2.1(b)(5) enhancement is not applied because “of the relatedness of [the conduct

justifying the enhancement] to the conduct that forms the basis for the conviction

under . . . § 924(c)”). Nonetheless, each count includes conduct that is “treated as a

specific offense characteristic in” the other offense, and therefore the counts should

be grouped. U.S.S.G. § 3D1.2(c); see, e.g., King, 2006 WL 3006699 at *2 (approving

of the grouping of a felon in possession count with drug trafficking offenses when

there was also a § 924(c) conviction). That the conduct is addressed elsewhere in the

Guidelines does not diminish the linkage between the offenses. The conduct is

“otherwise accounted for by the guidelines” and therefore additional incremental

punishment is unwarranted. U.S.S.G. Ch. 3, pt. D, introductory cmt. 

Bell was convicted of three “closely intertwined” but separate offenses arising

from the same conduct. U.S.S.G. Ch. 3, pt. D, introductory cmt. The firearm he was

found guilty of possessing as a felon was the same firearm he was found guilty of

possessing in furtherance of a drug trafficking crime; and he was convicted of the drug

trafficking crime – possession with intent to distribute crack cocaine. While the three

offenses have distinct elements, they do not “represent additional conduct that is not

otherwise accounted for by the guidelines.” Id. Thus, the felon in possession count

and the crack cocaine count should have been grouped together for sentencing

purposes, resulting in an offense level 26. 
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III. Conclusion

For the reasons stated herein, we affirm the district court’s denial of the motion

to suppress and affirm Bell’s conviction. The case is remanded for resentencing

consistent with this opinion. 

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