     05-1424-cr
     United States v. Wallace
 1
 2                              UNITED STATES COURT OF APPEALS
 3
 4                                 FOR THE SECOND CIRCUIT
 5
 6                                    August Term, 2007
 7
 8
 9       (Argued: April 22, 2008                       Decided: July 8, 2008)
10
11                                  Docket No. 05-1424-cr
12
13       - - - - - - - - - - - - - - - - - - - -x
14
15       UNITED STATES OF AMERICA,
16
17                         Appellee,
18
19                   - v.-
20
21       RICKY P. WALLACE,
22
23                         Defendant-Appellant.
24
25       - - - - - - - - - - - - - - - - - - - -x

26             Before:             JACOBS, Chief Judge, KEARSE and KATZMANN,
27                                 Circuit Judges.
28
29             Appeal from a judgment of conviction entered in the

30       United States District Court for the Western District of New

31       York (Siragusa, J.).          The defendant argues that sharing

32       narcotics does not constitute drug distribution within the

33       meaning of 21 U.S.C. § 841(a), and that his conviction

34       therefore rests on insufficient evidence.          We affirm the

35       conviction; however, the case is remanded in accordance with

36       United States v. Regalado, 518 F.3d 143 (2d Cir. 2008).
 1                                 BRUCE R. BRYAN, Syracuse, NY,
 2                                 for Appellant.
 3
 4                                 BRETT A. HARVEY, Assistant
 5                                 United States Attorney (Terrance
 6                                 P. Flynn, United States Attorney
 7                                 for the Western District of New
 8                                 York, on the brief), United
 9                                 States Attorney’s Office for the
10                                 Western District of New York,
11                                 Rochester, NY, for Appellee.
12
13   DENNIS JACOBS, Chief Judge:
14
15       Ricky P. Wallace appeals the judgment of conviction

16   entered against him on drug and gun offenses following a

17   jury trial in the United States District Court for the

18   Western District of New York (Siragusa, J.).    Wallace argues

19   chiefly that his sharing of narcotics on a social basis does

20   not constitute drug distribution for purposes of 21 U.S.C. §

21   841(a).   We affirm Wallace’s conviction for the reasons

22   stated in this opinion and in a separate summary order

23   issued today; but we remand to the district court for

24   reconsideration of Wallace’s sentence pursuant to United

25   States v. Regalado, 518 F.3d 143 (2d Cir. 2008).

26

27                             BACKGROUND

28       In May, 2003, a confidential informant made two

29   controlled purchases of cocaine base at an apartment in


                                    2
1    Rochester, New York.   Each time, the seller took the cash,

2    went into a bedroom, and came back with one or two small

3    ziplock bags containing cocaine base.     A week later,

4    Rochester police executed a search warrant at the apartment,

5    in which Wallace lived with his father.     During the search,

6    Wallace advised the officers that he lived in the apartment,

7    that he was unemployed, and that he had a shotgun in his

8    bedroom.   From his bedroom, the police recovered ziplock

9    bags containing a total of 1.5 grams of cocaine base, a

10   quantity of new unused ziplock bags, 91.22 grams of

11   marijuana, an AK-47 semi-automatic assault weapon and

12   ammunition compatible with it, and $460 in cash.

13       After his arrest, Wallace waived his Miranda rights and

14   made several statements to the police: that he had cocaine

15   base and marijuana to use and share with his friends, but

16   was not a drug dealer; that he used the ziplock bags to

17   store the drugs for his own use; that he kept the AK-47 to

18   protect himself and his bed-ridden father; and that he knew

19   the weapon was illegal, but made sure to keep it unloaded.

20   These statements were admitted at trial.1



          1
            No evidence of the confidential informant’s
     controlled purchases was admitted at trial.
                                   3
1        Wallace testified to the following at trial.       He was

2    unemployed; however, his father received disability and

3    Social Security checks, which Wallace (who had power of

4    attorney) would cash to pay the monthly $400 rent and

5    utilities for the apartment.    The narcotics and ziplock bags

6    belonged to him, while the gun belonged to his father.      He

7    purchased $50 worth of cocaine base every month or so.      He

8    had purchased about $600 worth of marijuana two or three

9    years earlier, the remains of which were seized by the

10   police.    He had the drugs for his personal use and, on

11   occasion, to share with friends.    He purchased ziplock bags

12   in bulk.    It was his practice to break the cocaine base into

13   smaller pieces and place them in the ziplock bags so that

14   his visitors would not know how much he had and try to “use

15   it all up.”    Tr. 433.   Wallace’s girlfriend and his father

16   got the AK-47 from “a boss” and brought it to the apartment.

17   Tr. 437.    To prevent it from hurting anyone, he “put it up

18   for safety,” keeping it under his mattress and putting the

19   ammunition in an empty baby wipes container.     Id.

20       On April 9, 2004, the jury convicted Wallace of

21   possession of cocaine base with intent to distribute, in

22   violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C), possession


                                     4
1    of a firearm as a convicted felon, in violation of 18 U.S.C.

2    §§ 922(g)(1) and 924(a)(2), and possession of marijuana, in

3    violation of 21 U.S.C. § 844(a).

4

5                              DISCUSSION

6        Wallace argues that the evidence was insufficient to

7    support his conviction for possession with the intent to

8    distribute cocaine because the government failed to prove

9    that he held (or shared) drugs with a commercial purpose.     A

10   defendant challenging the sufficiency of the evidence “bears

11   a heavy burden.”   United States v. Griffith, 284 F.3d 338,

12   348 (2d Cir. 2002).   “Not only must the evidence be viewed

13   in the light most favorable to the government and all

14   permissible inferences drawn in its favor, but if the

15   evidence, thus construed, suffices to convince any rational

16   trier of fact of the defendant’s guilt beyond a reasonable

17   doubt,” the conviction must stand.     United States v.

18   Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995) (internal

19   citations omitted).

20       On the same legal theory, Wallace challenges the

21   district court’s supplemental jury instruction that

22   “[s]haring drugs with another constitutes distribution.”


                                   5
1    “[W]e will not find reversible error unless a charge either

2    failed to inform the jury adequately of the law or misled

3    the jury as to the correct legal rule.”       United States v.

4    Alfisi, 308 F.3d 144, 148 (2d Cir. 2002).

5

6                                    I

7        This Circuit has not yet decided whether the social

8    sharing of a small quantity of drugs, without consideration,

9    constitutes the distribution of drugs within the meaning of

10   21 U.S.C. § 841(a).   See United States v. Williams, 247 F.3d

11   353, 358 n.6 (2d Cir. 2001) (“Drugs intended for personal

12   use are not for distribution.       It may be, however, that

13   drugs held to be shared gratis with family and friends,

14   though not for personal use, are also not for

15   ‘distribution,’ pursuant to 21 U.S.C. § 841.       On this point,

16   we take no position whatsoever.”).

17       Several of our sister circuits, however, have concluded

18   that distribution within the meaning of 21 U.S.C. § 841(a)

19   can take place without a sale.       See, e.g., United States v.

20   Cormier, 468 F.3d 63, 70 n.3 (1st Cir. 2006) (“It is well

21   accepted that drugs may be distributed by giving them away

22   for free; 21 U.S.C. § 841(a)(1) imposes no requirement that


                                     6
1    a sale take place.”); United States v. Fregoso, 60 F.3d

2    1314, 1325 (8th Cir. 1995) (“No ‘sale’ is required to

3    violate the statute.”); United States v. Vincent, 20 F.3d

4    229, 233 (6th Cir. 1994) (“In order to establish the knowing

5    or intentional distribution of a controlled substance, the

6    government needed only to show that defendant knowingly or

7    intentionally delivered a controlled substance.     It was

8    irrelevant for the government to also show that defendant

9    was paid for the delivery.” (internal citation omitted));

10   United States v. Washington, 41 F.3d 917, 919 (4th Cir.

11   1994) (holding that the defendant’s “intent to share the

12   cocaine with others is sufficient for a court to find that

13   he possessed drugs with intent to distribute”); United

14   States Ramirez, 608 F.2d 1261, 1264 (9th Cir. 1979)

15   (“[T]here is direct evidence that appellant engaged in the

16   ‘distribution’ of cocaine; although apparently no commercial

17   scheme is involved, his sharing the cocaine . . .

18   constitutes ‘distribution’ for purposes of 21 U.S.C. §

19   841(a)(1).”).

20       We now join this sound majority and hold that the

21   sharing of drugs, without a sale, constitutes distribution

22   for purposes of 21 U.S.C. § 841(a), which makes it illegal


                                  7
1    to “possess with intent to manufacture, distribute, or

2    dispense, a controlled substance.”   21 U.S.C. § 841(a)(1).

3    The word “distribute” means “to deliver,” id. § 802(11); and

4    “deliver” means “the actual, constructive, or attempted

5    transfer of a controlled substance,” id. § 802(8).   These

6    definitions, which take no account of consideration, bespeak

7    a congressional intent “to proscribe a range of conduct

8    broader than the mere sale of narcotics.”   Washington, 41

9    F.3d at 919.

10       This reading respects the line between “possession” and

11   “distribution.”   Simple possession, in violation of 21

12   U.S.C. § 844, refers to “possession for one’s own use,”

13   United States v. Dovalina, 525 F.2d 952, 958 (5th Cir. 1976)

14   (internal quotation marks and citation omitted), whereas

15   distribution, in violation of 21 U.S.C. § 841(a), “can only

16   be ultimately accomplished by ‘delivery’ to a distributee,”

17   United States v. Binkley, 903 F.2d 1130, 1138 (7th Cir.

18   1990).   Thus a defendant who holds narcotics solely for

19   personal use is in possession; one who delivers or transfers

20   narcotics to another--for consideration or gratis--is

21   distributing.

22       Wallace testified that he purchased cocaine base and


                                   8
1    marijuana for his own personal use, and also shared the

2    drugs with friends.    See Tr. 432 (“Most of the time I used

3    it by myself . . . but if a lady friend come by we use it

4    together, you know, have some and relax . . . .”).      This

5    testimony is direct evidence that Wallace engaged in the

6    distribution of cocaine base.

7        Accordingly, we reject Wallace’s sufficiency challenge.

8    We likewise reject his challenge to the supplemental jury

9    charge that “[s]haring drugs with another constitutes

10   distribution”--the charge is sound.

11

12                                  II

13       Wallace relies chiefly on Lopez v. Gonzales, 549 U.S.

14   47, 127 S. Ct. 625 (2006), to support the idea that proof of

15   commercial dealing is required for a conviction under 21

16   U.S.C. § 841(a).   Lopez addressed a provision of the

17   Immigration and Nationality Act (“INA”) providing for the

18   deportation of “aggravated felon[s].”    Included in the

19   definition of “aggravated felony” is the “‘illicit

20   trafficking in a controlled substance . . . including a drug

21   trafficking crime.’”    Lopez, 127 S. Ct. at 627-28 (quoting 8

22   U.S.C. § 1101(a)(43)(B)).    The INA defines a “drug


                                     9
1    trafficking crime” as “‘any felony punishable under the

2    Controlled Substances Act.’”    Lopez, 127 S. Ct. at 628

3    (quoting 18 U.S.C. § 924(c)(2)).    The petitioner’s offense

4    was helping another possess narcotics, which is “punishable

5    under the Controlled Substances Act” as a misdemeanor, but

6    as a felony under state law.    See id. at 629.   The question

7    presented was whether such an offense was a “drug

8    trafficking crime.”

9        The government in Lopez argued that the INA “requires

10   only that the offense be punishable, not that it be

11   punishable as a federal felony,” a position that the Court

12   considered “incoheren[t] with any commonsense conception of

13   ‘illicit trafficking.’”   Lopez, 127 S. Ct. at 629.   The

14   Court looked to the “everyday understanding of

15   ‘trafficking,’” noted that “[c]ommerce . . . was no part” of

16   the offense (helping another possess narcotics), and decided

17   that that militated against the government’s interpretation

18   of the INA: to read the INA as the government did “would

19   often turn simple possession into trafficking, just what the

20   English language tells us not to expect.”    Id. at 630.

21       Lopez is distinguishable on several levels.     First,

22   Lopez consulted the “everyday understanding of


                                    10
1    ‘trafficking’” because there, “the statutes in play do not

2    define the term, and so remit us to regular usage to see

3    what Congress probably meant.”        Id.   But Title 21 does

4    define terms; and the definitions (as discussed supra)

5    describe distribution without regard to sale or traffic.

6    Second, Lopez interpreted another statute, the aggravated

7    felony provision of the INA; that statute uses the phrase

8    “illicit trafficking”; the word “traffic” means commerce and

9    trade; and no form of that word is used in the statute that

10   proscribes Wallace’s offense.        See 21 U.S.C. § 841(a)

11   (making it illegal to “possess with intent to manufacture,

12   distribute, or dispense, a controlled substance”).

13       Wallace further contends that United States v.

14   Swiderski, 548 F.2d 445 (2d Cir. 1977), indicates that a

15   felony drug offense must be commercial in nature.        Swiderski

16   held that “where two individuals simultaneously and jointly

17   acquire possession of a drug for their own use, intending

18   only to share it together, their only crime is personal drug

19   abuse--simple joint possession, without any intent to

20   distribute the drug further.”        Id. at 450.   Since neither

21   one of the joint possessors “serves as a link in the chain

22   of distribution,” we concluded that “simple joint possession


                                     11
1    does not pose any of the evils which Congress sought to

2    deter and punish through the more severe penalties provided

3    for those engaged in a ‘continuing criminal enterprise’ or

4    in drug distribution.”   Id.

5        Wallace never testified that he shared his drugs with

6    anyone as “joint possessors” within the meaning of

7    Swiderski.   The rule announced in Swiderski is expressly

8    limited “to the passing of a drug between joint possessors

9    who simultaneously acquired possession at the outset for

10   their own use.”   Id. at 450-51.    We advised that the rule

11   would not apply where the evidence showed that the defendant

12   “handed over a small amount of marijuana . . . for smoking

13   purposes” to another individual without proof that the other

14   individual “had jointly and simultaneously acquired

15   possession of the drug at the outset.”     Id. at 450 (citing

16   United States v. Branch, 483 F.2d 955 (9th Cir. 1973)).

17   Rather, since “sole possession” in such a case would rest

18   with the defendant, “his transfer of the drug to a third

19   person, friend or not,” would violate the prohibition on

20   drug distribution.   Swiderski, 548 F.2d at 450.    Wallace had

21   “sole possession” of the drugs, even if he “handed over a

22   small amount” to his occasional visitor.    Id.


                                    12
1        Nor can Wallace find refuge in cases in which

2    convictions under 21 U.S.C. § 841(a) were reversed for want

3    of evidence that the possession of narcotics was with the

4    intent to distribute.    In United States v. Boissoneault, 926

5    F.2d 230 (2d Cir. 1991), we reversed a conviction on

6    sufficiency grounds where “the quantity of cocaine at issue,

7    5.31 grams (.19 oz.), was not inconsistent with personal

8    use.”   Id. at 234.   But in that case, and other similar

9    cases, it mattered that defendant had none of the tools of

10   the trade.   Thus there was no proof that Boissoneault had

11   “scales, beepers, and other devices,” or the “materials

12   needed to process cocaine or to package it in druggist

13   folds,” or “a gun or other weapon, which would have helped

14   sustain an inference that he was engaged in the dangerous

15   business of drug trafficking.”      Id.

16       This is not the Boissoneault case.    When the Rochester

17   police searched Wallace’s bedroom, they found (among other

18   things) 1.5 grams of cocaine base parceled out in more than

19   a dozen small ziplock bags; a dinner plate holding numerous

20   new and unused small ziplock bags; a ziplock bag containing

21   numerous new and unused small ziplock bags bearing green

22   dollar signs; a dresser drawer full of empty and unused


                                    13
1    glassine ziplock bags; and a semi-automatic assault weapon

2    and ammunition for it.   Viewed in the light most favorable

3    to the government, this evidence supports the inference that

4    Wallace had the intent to distribute narcotics.   See United

5    States v. Gamble, 388 F.3d 74, 77 (2d Cir. 2004) (affirming

6    finding of intent to distribute where “[l]aw enforcement

7    officers found 1.7 grams of cocaine base (with a purity of

8    79 percent), packaged in twenty-six zip-lock bags, . . .

9    along with hundreds of empty zip-lock bags,” and evidence

10   showed “an unusually high volume of pedestrian traffic at

11   [the defendant’s] apartment in the weeks preceding the

12   search”); United States v. Martinez, 54 F.3d 1040, 1043 (2d

13   Cir. 1995) (“[P]articularly in light of [the defendant’s]

14   admission that he was not a user, his physical possession of

15   a scale, cut, and a loaded firearm supported the jury’s

16   rejection of his personal-use defense.”); United States v.

17   White, 969 F.2d 681, 684 (8th Cir. 1992) (“Because a gun is

18   generally considered a tool of the trade for drug dealers,

19   [it] is also evidence of intent to distribute.” (internal

20   citation and punctuation omitted)); United States v.

21   Garrett, 903 F.2d 1105, 1113 (7th Cir. 1990) (“Intent to

22   distribute has been inferred in cases where small amounts of


                                   14
1    drugs have been packaged in a manner consistent with

2    distribution or have been possessed in conjunction with

3    other indicia of drug distribution, such as a weapon.”

4    (footnote omitted)).

5        Also seized was $460 in cash.    Wallace testified that

6    he was unemployed, and that he relied on his father’s

7    disability checks to pay the $400 monthly rent, the utility

8    bills and medical expenses.    These facts made it permissible

9    to infer that Wallace lacked any legitimate income to

10   purchase the cocaine base for his personal use and for

11   sharing with friends.

12

13                                 III

14       In a letter to the panel pursuant to Federal Rule of

15   Appellate Procedure 28(j), Wallace argues that remand to the

16   district court is warranted in light of the Supreme Court’s

17   decision in Kimbrough v. United States, 128 S. Ct. 558

18   (2007).   We agree.

19       Because Wallace did not challenge this aspect of

20   sentencing below, we review the district court’s decision

21   for plain error.   United States v. Regalado, 518 F.3d 143,

22   147 (2d Cir. 2008).    We cannot be certain from the record


                                    15
1    whether the district court would have imposed a lower

2    sentence “had it been aware that ‘the cocaine Guidelines,

3    like all other Guidelines, are advisory only,’ and that it

4    therefore had discretion to deviate from the Guidelines

5    where necessary to serve the objectives of sentencing under

6    18 U.S.C. § 3553(a).”   Id. at 145 (quoting Kimbrough, 128 S.

7    Ct. at 564, 575).   The proper course is therefore to remand

8    to give the district court “an opportunity to indicate

9    whether it would have imposed a non-Guidelines sentence

10   knowing that it had discretion to deviate from the

11   Guidelines to serve those objectives.”     Regalado, 518 F.3d

12   at 149.

13

14                            CONCLUSION

15       For the reasons stated in this opinion (and the

16   accompanying summary order), the judgment is AFFIRMED as to

17   the conviction and the case is REMANDED to the district

18   court for consideration of resentencing.




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