JAMES JACKSON, PETITIONER V. UNITED STATES OF AMERICA No. 90-7888 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-20) is unpublished, but the decision is noted at 924 F.2d 1059 (Table). JURISDICTION The judgment of the court of appeals was entered on February 1, 1991. The petition for a writ of certiorari was filed on April 30, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the evidence supported petitioner's conviction under 18 U.S.C. 924(c)(1) for using a firearm during and in relation to a drug trafficking crime. 2. Whether under Sentencing Guidelines Section 3C1.1 the district court properly increased petitioner's offense level for obstructing justice. STATEMENT After a jury trial in the United States District Court for the Eastern District of Michigan, petitioner was convicted of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) (Count 1); possessing heroin with intent to distribute it, also in violation of 21 U.S.C. 841(a)(1) (Count 2); and using a firearm during and in relation to those offenses, in violation of 18 U.S.C. 924(c)(1) (Count 3). Petitioner was sentenced to a total of 151 months' imprisonment on Counts 1 and 2, and to a consecutive term of five years' imprisonment on Count 3. The court of appeals affirmed. Pet. App. 1-20. 1. In June 1989, Drug Enforcement Administration agents and Detroit Police Department officers executed a search warrant at petitioner's home in Detroit, Michigan. When the police entered, petitioner threw several plastic bags at an open toilet but missed. Petitioner was then arrested and the plastic bags seized. The bags were later found to contain 51.57 grams of "crack" cocaine. C.A. App. 296-297; Pet. App. 2. A search of petitioner's house yielded more illegal drugs and drug paraphernalia, as well as firearms and ammunition. Four coin envelopes containing 1.86 grams of heroin were found in a hallway closet on the first floor. C.A. App. 225-226; Pet. App. 3. A 12-gauge shotgun was recovered from the rear bedroom of the first floor. C.A. App. 226-227. In the master bedroom on the second floor, the agents found a pistol in a dresser drawer, ammunition on top of the dresser, two 9 millimeter, semi-automatic pistols in a bag behind the bed, and, in the bedroom closet, a loaded .45 caliber semi-automatic weapon and a loaded 12-gauge semi-automatic shotgun. C.A. App. 262-272. In the basement, the agents discovered .32 grams of "crack" cocaine and a table covered with items typically used to measure and package illegal drugs, namely, plastic bags, coin envelopes, razor blades, and three scales. Also found in the basement within a foot or two of the drug paraphernalia were a handgun and two boxes of ammunition. Pet. App. 2; C.A. App. 332-338, 362-366. 2. The court of appeals affirmed petitioner's conviction. Pet. App. 1-20. In upholding his conviction under 18 U.S.C. 924(c)(1), the court rejected petitioner's argument that the firearms in his house were not sufficiently accessible to have been "used" during the drug trafficking crimes on which he was convicted. /1/ The court relied on a prior decision holding that Section 924(c)(1) is violated when firearms are kept "at the ready" to protect an illegal drug operation. Pet. App. 14 (quoting United States v. Acosta-Cazares, 878 F.2d 945, 951-952 (6th Cir.), cert. denied, 110 S. Ct. 255 (1989)). That holding applied in this case, the court held, because the police and DEA agents "discovered ammunition and a number of weapons throughout the house." Pet. App. 2. The court also rejected petitioner's argument that the district court improperly increased his offense level by two points pursuant to Sentencing Guidelines Section 3C1.1. At the time of petitioner's sentencing, Section 3C1.1 directed a sentencing court to increase the offense level by two points "(i)f the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense." Sentencing Guidelines Section 3C1.1 (Nov. 1, 1987). The district court determined that petitioner had attempted to obstruct justice within the meaning of Section 3C1.1 by trying to throw several bags of cocaine into the toilet as the police entered his house. C.A. App. 512, 516. The court of appeals upheld that determination, observing that "destroying or concealing material evidence, or attempting to do so" was an example of obstructive conduct cited in the Commentary to Section 3C1.1 that was in effect when petitioner was sentenced. Pet. App. 16; see Sentencing Guidelines Section 3C1.1, Application Note 1(a) (Nov. 1, 1987). Both courts rejected petitioner's reliance on an amended version of the Commentary that took effect after petitioner was sentenced. Pet. App. 17; C.A. App. 512. /2/ ARGUMENT 1. Petitioner renews his challenge to his conviction under 18 U.S.C. 924(c)(1). Pet. 6-7. As in the court of appeals, he contends that, for purposes of Section 924(c)(1), the firearms he kept in his house were not sufficiently accessible to have been "use(d)" during the drug trafficking crimes on which he was convicted. The court of appeals properly rejected that contention. As the court of appeals recognized, to establish a violation of Section 924(c)(1), it is not necessary that a defendant be found with a gun in his hand. Pet. App. 13-14. "(T)he cases are unanimous in holding that a defendant can 'use' a firearm within the meaning of Section 924(c)(1) without firing, brandishing or displaying it." United States v. Meggett, 875 F.2d 24, 29 (2d Cir.), cert. denied, 110 S. Ct. 166 (1989). Accord United States v. Torres-Medina, No. 90-50257, slip op. 7135 (9th Cir. June 7, 1991) (It is "well established" that Section 924(c) "does not require literal 'use' of the firearm."). Instead, "(it) is now widely accepted in the circuits (that) (a) firearm may play a role in the offense simply by emboldening the defendant to act." United States v. Torres-Medina, supra, slip op. 7137 (citing United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985)). Many of the reported court of appeals decisions construing Section 924(c)(1), like the unpublished decision here, have involved premises under the defendant's control at which both weapons and narcotics are kept. /3/ "The courts (in those cases have) had no trouble in finding that the presence of these guns constituted 'use' to protect the defendant's possession of the narcotics. The guns were an integral part of the narcotics offense and facilitated that offense." United States v. Meggett, 875 F.2d at 29. The courts in those cases have used essentially the same reasoning that the court of appeals used here: "just as weapons are kept at the ready to protect military installations against potential enemy attack, so too may weapons be kept at the ready to protect a drug house, thereby safeguarding and facilitating illegal transactions." Pet. App. 14 (quoting United States v. Acosta-Cazares, 878 F.2d at 951-952). /4/ The court of appeals correctly applied that reasoning to conclude that the evidence in this case was sufficient to uphold petitioner's conviction under Section 924(c)(1). Firearms and ammunition were found "throughout (petitioner's) house" (Pet. App. 2) and were therefore clearly available for use in safeguarding his drug trafficking operations. Under these circumstances, the jury reasonably could have concluded that the firearms "embolden(ed) (petitioner) to act," United States v. Torres-Medina, supra, thereby facilitating the drug trafficking crimes on which he was convicted. The two cases upon which petitioner relies (Pet. 7) do not support a contrary conclusion. In United States v. Feliz-Cordero, 859 F.2d 250, 254 (1988), the Second Circuit reversed a conviction under Section 924(c)(1), finding that the evidence was insufficient to show that a firearm found in a dresser drawer in one apartment would have been readily accessible for use during drug trafficking offenses that occurred in a separate apartment. The facts of Feliz-Cordero are clearly distinguishable from those involved here, where weapons and ammunition were found on each floor of petitioner's house. Moreover, as the First Circuit has observed, three later Second Circuit decisions "take pains to distinguish Feliz-Cordero and limit it to its own facts." United States v. Hadfield, 918 F.2d 987, 997 (1st Cir. 1990), cert. denied, No. 90-7602 (May 20, 1991). In those subsequent decisions, the Second Circuit upheld convictions under Section 924(c)(1) on facts similar to those involved here. See United States v. Torres, 901 F.2d 205, 217 (2d Cir.) (firearm found under mattress in apartment where drugs were found), cert. denied, 111 S. Ct. 273 (1990); United States v. Alvarado, 882 F.2d 645, 654 (2d Cir. 1989) (guns found in locked safe of apartment where drugs found), cert. denied, 110 S. Ct. 1114 (1990); United States v. Meggett, 875 F.2d at 27 (violation of Section 924(c) may be found given the "presence of firearms in (defendant's) apartment inside cabinets and behind furniture"). Petitioner's reliance on the Third Circuit's decision in United States v. Theodoropoulos, 866 F.2d 587, mandamus denied, 489 U.S. 1009 (1989), is likewise misplaced. There, the court concluded that, while a shotgun found inside an apartment where drugs were stored was used during drug trafficking offenses, three other firearms found in a trash can outside the apartment had not been shown to have facilitated the offenses. Id. at 597. The court's holding with respect to firearms located outside the residence plainly does not help petitioner. Moreover, in United States v. Reyes, 930 F.2d 310, 313-314 (1991), the Third Circuit narrowly interpreted the holding in Theodoropoulos in affirming a conviction under Section 924(c)(1). The court in Reyes rejected the argument that a gun kept in a locked car trunk was insufficiently accessible to have been used during a drug trafficking offense. Id. at 314 & n.5. The court stated that "a violation (of Section 924(c)(1)) may be established by showing that the defendant intended to have the firearms available for use or possible use * * * and that the firearm was placed in a spot where it was readily accessible." United States v. Reyes, 930 F.2d at 313-314. That test, applied here, fully supports the court of appeals' decision upholding petitioner's conviction. 2. Petitioner also contends (Pet. 4-6) that the district court improperly increased his offense level by two points for obstructing justice pursuant to Sentencing Guidelines Section 3C1.1. That contention does not warrant further review. In upholding the district court's determination, the court of appeals observed that the Application Note to Section 3C1.1 that was in effect when petitioner was sentenced included as an example of obstructive conduct "destroying or concealing material evidence, or attempting to do so." Pet. App. 16 (quoting Sentencing Guidelines Section 3C1.1, Application Note 1(a) (Nov. 1, 1987)). Petitioner clearly was attempting to destroy material evidence when, upon the police entry into his house, he threw several bags of cocaine at the toilet. The district court therefore correctly enhanced his offense level under Section 3C1.1. Although the Application Note regarding destruction or attempted destruction of material evidence was amended effective November 1, 1990 (see note 2, supra), that amendment was not in effect when petitioner was sentenced and therefore did not apply here. See 18 U.S.C. 3553(a)(4). In any event, in light of the amendment to the Commentary accompanying Section 3C1.1, petitioner's challenge to its application in this case does not present an issue of continuing importance warranting review by this Court. See Braxton v. United States, No. 90-5358, slip op. 4 (May 28, 1991). /5/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General ANDREW LEVCHUK Attorney JUNE 1991 /1/ 18 U.S.C. 924(c)(1) provides in relevant part: Whoever, during and in relation to any crime of violence or drug trafficking crime * * * uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years * * *. For purposes of Section 924(c)(1), a "drug trafficking crime" includes "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)." 18 U.S.C. 924(c)(2). The charges in Counts 1 and 2 on which petitioner was convicted were felony offenses under that Act. See C.A. App. 5-6. /2/ As amended effective November 1, 1990, the Commentary to Section 3C1.1 includes among "examples of the types of conduct to which this enhancement applies": destroying or concealing * * * evidence that is material to an official investigation or judicial proceeding * * * or attempting to do so; however, if such conduct occurred contemporaneously with arrest (e.g., attempting to swallow or throw away a controlled substance), it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it resulted in a material hindrance to the official investigation or prosecution of the instant offense * * *. United States Sentencing Commission, Guidelines Manual, Amendment 347, at C.191 (Nov. 1, 1990) (amending Sentencing Guidelines Section 3C1.1, Application Note 3(d)). /3/ E.g., United States v. Torres-Medina, supra; United States v. Hadfield, 918 F.2d 987, 997-998 (1st Cir. 1990), cert. denied, No. 90-7602 (May 20, 1991); United States v. Torres, 901 F.2d 205, 217 (2d Cir.), cert. denied, 111 S. Ct. 273 (1990); United States v. Alvarado, 882 F.2d 645, 653-654 (2d Cir. 1989), cert. denied, 110 S. Ct. 1114 (1990); United States v. Acosta-Cazares, 878 F.2d at 951-952; United States v. Meggett, 875 F.2d at 29; United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir. 1988); United States v. Matra, 841 F.2d 837, 841-843 (8th Cir. 1988); United States v. LaGuardia, 774 F.2d 317, 320-321 (8th Cir. 1985); United States v. Grant, 545 F.2d 1309, 1312-1313 (2d Cir. 1976), cert. denied, 429 U.S. 1103 (1977). /4/ See, e.g., United States v. Hadfield, 918 F.2d at 998 ("the question is whether placement of the weapon was designed to facilitate the narcotics enterprise by, say, protecting against untoward contingencies or safeguarding the cache of drugs"); United States v. Torres, 901 F.2d at 218 (firearms were "used" in relation to drug trafficking crimes because, even though kept in a locked safe, they "served to protect the cocaine and cash stored in the apartment"); United States v. Robinson, 857 F.2d at 1000 (when, in addition to drugs and drug paraphernalia, seven guns were discovered in defendant's apartment, the jury "could reasonably have concluded that (defendant) 'used' at least one of the firearms found in his house as a means of safeguarding and facilitating illegal transactions and as an integral means of protecting his possession of the cocaine"); United States v. Matra, 841 F.2d at 843 (similar reasoning on similar facts). /5/ Petitioner's assertion (Pet. 5-6) that the decision below conflicts with other Sixth Circuit decisions does not warrant further review. See Wisniewski v. United States, 353 U.S. 901 (1957).