                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-23-2008

USA v. Farrish
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1904




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                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                        No. 07-1904
                       ____________

             UNITED STATES OF AMERICA

                              v.

             MARCEL RAYNARD FARRISH,
               a/k/a Marcel Raynard Farris,
                  a/k/a Michael Murphy


                  Marcel Raynard Farrish,

                             Appellant
                       ____________

       On Appeal from the United States District Court
           for the Western District of Pennsylvania
                    (D.C. No. 05-cr-00218)
       District Judge: Honorable Donetta W. Ambrose
                        ____________

         Submitted Under Third Circuit LAR 34.1(a)
                    September 29, 2008

Before: FISHER, CHAGARES and HARDIMAN, Circuit Judges.

                  (Filed: October 23, 2008)
                       ____________

                OPINION OF THE COURT
                     ____________
FISHER, Circuit Judge.

       Marcel Farrish appeals his judgment of conviction and sentence on all three counts

in his indictment. At the conclusion of his trial, the jury convicted Farrish of

(1) possessing with intent to distribute five or more grams of cocaine base in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii); (2) using or carrying a firearm during and in

relation to any drug trafficking crime or, in furtherance of any such crime, possessing a

firearm in violation of 18 U.S.C. § 924(c)(1)(A); and (3) being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). The District Court sentenced Farrish to a

total of 138 months’ imprisonment.

       Farrish attacks his conviction and sentence on four grounds: (1) the Government

presented insufficient evidence to support his conviction under 18 U.S.C. § 924(c);

(2) the District Court improperly admitted expert testimony in violation of Federal Rule

of Evidence 704(b); (3) the District Court inappropriately denied his motion to suppress

evidence; and (4) the District Court erred in believing it could not depart from the Federal

Sentencing Guidelines (“Guidelines”) to grant a downward variance based solely on the

sentencing disparity between crack and powder cocaine. For the reasons that follow, we

will affirm Farrish’s conviction, but will vacate his sentence and remand for resentencing.




                                              2
                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On the night of March 27, 2004, three City of Pittsburgh police officers were

patrolling the Homewood area of Pittsburgh in an unmarked police vehicle. At

approximately 10:00 p.m., they came across a car idling at the corner of Mulford and

Cora Streets, in front of a “no parking” street sign. Detective Edward Fallert exited the

police vehicle and approached the idling car, intending to ask its driver to move along.

Upon approaching the car, Detective Fallert noticed the man sitting alone in the driver’s

seat, later identified as Farrish, grab something from his lap with his right hand, place it in

his mouth, and start chewing rapidly. Detective Fallert believed Farrish was in possession

of and attempting to destroy contraband, so he asked Farrish what he was chewing.

Farrish stated that it was a “bag of weed.” Detective Fallert asked Farrish to open his

mouth, Farrish complied, and Detective Fallert noticed green, leafy matter in Farrish’s

mouth, which he believed based on his experience as a police officer to be marijuana.

Detective Fallert asked Farrish to exit the vehicle and arrested him for possession of a

controlled substance and tampering with evidence. Farrish gave his name, but stated that

he lacked identification because his driver’s license was suspended. He told the officers

that the car in his possession belonged to his girlfriend.



                                              3
       Due to Farrish’s arrest and his suspended license, no one was present to remove

the vehicle from the “no parking” zone. Therefore, the police arranged for a tow service

to impound the car. Pursuant to the towing policy of the City of Pittsburgh Police

Department, the police performed a warrantless inventory search of the vehicle and its

contents. In the trunk, they discovered eighty-eight knotted plastic baggies containing a

substance later determined to be crack cocaine, a fully loaded 9-millimeter semiautomatic

gun, and a baggie with thirty loose 9-millimeter rounds, among other noncontraband

items. The crack cocaine weighed 15.32 grams and had an approximate street value of

$1,700. The firearm was registered in Farrish’s name and records indicated that he

purchased it on June 5, 1997.

       Following Farrish’s arrest, the grand jury indicted him on three charges:

(1) possessing with intent to distribute five or more grams of cocaine base; (2) using,

carrying, or possessing a firearm during, in relation to, or in furtherance of a drug

trafficking crime; and (3) being a felon in possession a firearm. Farrish pled not guilty to

each of the charges and chose to be tried before a jury. Prior to trial, Farrish

unsuccessfully moved to suppress all evidence discovered as a result of his arrest,

particularly the contraband found during the inventory search of the car. Farrish also

moved to prevent the Government’s police officer expert witness from testifying, which

the District Court partially granted, excluding any expert testimony regarding Farrish’s

mental state with respect to his reason for possessing the cocaine. At the conclusion of



                                              4
trial, the jury convicted Farrish on all three counts. Based on his charges, Farrish faced

statutory mandatory minimum sentences of five years each on counts one and two, and

count two’s sentence had to run consecutively with any additional sentence. Farrish’s

Guidelines range for counts one and three totaled 78 to 97 months.

       At Farrish’s February 22, 2007 sentencing hearing, his counsel asked the District

Court to consider granting a downward variance due to the sentencing disparity between

crack and powder cocaine, arguing for a total ten-year sentence calculated by adding the

two five-year statutory minimum sentences together. The District Court responded that,

despite its disagreement with the crack/powder cocaine sentencing disparity, the request

to consider it presented “an invitation to disregard the very settled law that I am obliged

to follow.” The District Court ultimately sentenced Farrish to a total term of

imprisonment of 138 months, summing the 78-month Guidelines minimum for counts one

and three and the five-year statutory minimum sentence on count two to reach that

amount. Farrish timely appealed.

                                              II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we exercise

jurisdiction over Farrish’s appeal pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

The following standards of review govern this appeal. When reviewing a jury verdict for

sufficiency of the evidence, we will sustain the verdict if any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt, and we view



                                               5
the evidence in the light most favorable to the Government. United States v. Dent, 149

F.3d 180, 187 (3d Cir. 1998). Consequently, a “claim of insufficiency of the evidence

places a very heavy burden on an appellant.” United States v. Gonzalez, 918 F.2d 1129,

1132 (3d Cir. 1990) (internal quotation marks omitted).

       We review the District Court’s decision on admitting expert testimony for abuse of

discretion. United States v. Watson, 260 F.3d 301, 306 (3d Cir. 2001). “To show an

abuse of discretion, appellants must show the district court’s action was arbitrary, fanciful

or clearly unreasonable [and we] will not disturb a trial court’s exercise of discretion

unless no reasonable person would adopt the district court’s view.” Stecyk v. Bell

Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002) (internal citations and

quotation marks omitted). However, our review of the District Court’s interpretation of

the Federal Rules of Evidence is plenary. United States v. Brown, 254 F.3d 454, 458 (3d

Cir. 2001).

       We review the denial of Farrish’s motion to suppress “for clear error as to the

underlying facts, but exercise plenary review as to its legality in light of the district

court’s properly found facts.” United States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006).

       We review the sentence imposed by the District Court for unreasonableness, and

Farrish bears the burden of demonstrating the unreasonableness of his sentence on appeal.

United States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006). In our review, we must first

ensure the District Court committed no significant procedural error in reaching its



                                               6
conclusion, which we review under an abuse-of-discretion standard. United States v.

Wise, 515 F.3d 207, 217 (3d Cir. 2008).

                                             III.

                                             A.

       Farrish claims the Government presented insufficient evidence to support his

conviction on count two under 18 U.S.C. § 924(c) because it proved only the gun’s

presence next to the cocaine, and not that Farrish used, carried, or possessed the gun “in

relation to” or “in furtherance of” a drug trafficking crime. The “mere presence” of a

firearm is not enough to support a conviction under § 924(c); instead, some evidence

must indicate that the possession of the firearm actually furthered the drug trafficking

offense. United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004). In determining

whether the firearm furthered the drug trafficking offense, this Court considers the

following nonexclusive factors: the type of drug activity being conducted, the firearm’s

accessibility, the type of firearm, whether the firearm was stolen, the legitimacy of the

possession, whether the firearm is loaded, the firearm’s proximity to drugs or drug profits,

and the time and circumstances under which the gun was found. Id.

       Farrish has not met his heavy burden to show that the evidence presented at trial

was insufficient to sustain his conviction. The Government presented evidence indicating

that the cocaine in Farrish’s trunk was packaged to be sold, and not intended for Farrish’s

personal use. The proximity of the gun to the drugs, the fact that drug dealers commonly



                                              7
carry guns, and the amount of ammunition in the gun all helped demonstrate that Farrish

intended to use the gun while trafficking cocaine. Construing all evidence in the light

most favorable to the Government and reviewing it under the factors established in

Sparrow, we conclude that a rational juror could have found that Farrish possessed the

gun in furtherance of a drug trafficking crime.

                                             B.

       Farrish next argues he should receive a new trial because the District Court

improperly admitted expert testimony in violation of Federal Rule of Evidence 704(b).

Rule 704(b) limits the content of expert testimony, and bars expert testimony on “ultimate

issues,” including whether or not a defendant has “the mental state or condition

constituting an element of the crime charged or of a defense thereto.” Farrish argues the

District Court should not have permitted the Government’s expert to testify as to whether

the quantity of drugs in the trunk indicated intent to sell and whether the proximity of the

gun to the drugs indicated intent to use the gun in conjunction with drug trafficking.

Farrish asserts that, in making such statements, the expert violated Rule 704(b) by

testifying to the ultimate issue of whether Farrish had the requisite mental state for a

finding of guilt under 18 U.S.C. § 924(c).

       We have held that “[e]xpert testimony is admissible if it merely supports an

inference or conclusion that the defendant did or did not have the requisite mens rea, so

long as the expert does not draw the ultimate inference or conclusion for the jury.”



                                              8
United States v. Watson, 260 F.3d 301, 309 (3d Cir. 2001) (internal quotation marks

omitted). However, “[i]t is settled law that an expert may testify about common behavior

patterns in a profession or subculture.” United States v. Price, 458 F.3d 202, 212 (3d Cir.

2006). In Price, we rejected the defendant’s argument that Rule 704(b) barred an expert’s

testimony that “[d]rug sellers . . . almost always have a gun at hand or readily available”

because the Government submitted the testimony to prove the defendant’s mental state.

Id. at 205. The testimony was “no more and no less than a description, in general and

factual terms, [of] the common practices of drug dealers.” Id. at 212 (internal quotation

marks omitted).

       In the present case, the expert witness testified that the facts and circumstances

surrounding Farrish’s behavior were “indicative” of someone who had the intent to

deliver drugs. Similar to that in Price, this expert testimony merely described the

common practices of drug dealers and did not draw the ultimate inference or conclusion

for the jury. Accordingly, we find that the District Court did not abuse its discretion by

allowing this expert testimony against Farrish.

                                             C.

       Farrish next argues the District Court inappropriately denied his motion to

suppress the evidence recovered from the trunk of his car following his arrest because the

police acted unlawfully in seizing him when they first approached his vehicle. Farrish

and the Government presented conflicting evidence on whether the police blocked his



                                              9
vehicle in such a way as to impede his ability to leave. Farrish also argues he was not

violating the law because he had only stopped temporarily, and had not parked,

underneath the “no parking” sign.

       We find these disputes immaterial. Police officers may approach and question

individuals under less than reasonable suspicion without violating the Fourth

Amendment. Florida v. Royer, 460 U.S. 491, 497 (1983). Further, a police officer who

believes a traffic violation has occurred may lawfully stop the car committing the

violation whether or not the officer was ultimately correct. See United States v. Bonner,

363 F.3d 213, 216 (3d Cir. 2004). In this case, Farrish’s potential parking violation

occurred in a high-crime area and could have made it difficult for emergency vehicles to

navigate the intersection. Detective Fallert initially planned to ask Farrish to move the car

and only arrested Farrish after he behaved suspiciously, by indicating a possible attempt

to destroy contraband, and admitted he had swallowed marijuana. Because Detective

Fallert had knowledge sufficient to warrant the conclusion that Farrish had committed a

criminal offense, we find nothing wrong with Farrish’s arrest. See United States v.

Myers, 308 F.3d 251, 255 (3d Cir. 2002).

       Farrish argues that even if his arrest was lawful, the police still violated his Fourth

Amendment rights in conducting the inventory search of his vehicle’s trunk, which he

contends was a “fishing expedition” for evidence. However, the police have the right to

take a vehicle into custody without a warrant under certain circumstances, such as when a



                                              10
vehicle “imped[es] traffic or threaten[s] public safety and convenience.” South Dakota v.

Opperman, 428 U.S. 364, 367, 369 (1976). Once the police have done so, they are

permitted to inventory the car’s contents, so long as they conduct the inventory search in a

reasonable manner and subject to routine procedures. Id. at 369; United States v. Frank,

864 F.2d 992, 1001 (3d Cir. 1988). Also, “[t]he mere fact that an inventory search may

also have had an investigatory purpose does not . . . invalidate it.” Frank, 864 F.2d at

1001.

        Farrish’s parked car could have prevented emergency vehicles from navigating the

intersection, and it is clear the police had a right to impound it. Also, there is no evidence

indicating the police conducted the inventory of Farrish’s vehicle in an unreasonable

fashion or for any other improper purpose. Accordingly, we find the District Court did

not err when it denied Farrish’s motion to suppress the evidence found after his arrest and

during the valid inventory search of his car.

                                                D.

        Finally, Farrish argues that the District Court committed procedural error in

sentencing because it believed it could not depart from the Guidelines to grant a

downward variance based on the sentencing disparity between crack and powder cocaine.

Under Gall v. United States, we “review the sentence under an abuse-of-discretion

standard. [We] must first ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the Guidelines



                                                11
range, treating the Guidelines as mandatory, [or] failing to consider the § 3553(a) factors

. . . .” 128 S. Ct. 586, 597 (2007).

       Here, the District Court committed procedural error by failing to recognize its

authority to grant a downward sentencing variance, effectively treating the Guidelines as

mandatory. See United States v. Gunter, 462 F.3d 237, 239 (3d Cir. 2006). We have held

that a district court “errs when it believes that it has no discretion to consider the

crack/powder cocaine differential incorporated in the Guidelines.” Id. at 249. At the

sentencing hearing, Farrish’s counsel argued for a downward variance under Gunter due

to the crack/powder sentencing disparity. The District Court responded that, despite its

disagreement with this disparity and its acknowledgment that “[i]t’s unfair,” the disparity

is “a decision made by Congress, and it’s a decision that the courts have upheld. I am

obliged to uphold whatever decisions are made by higher courts.” The District Court also

stated that the request to consider this disparity presented “an invitation to disregard the

very settled law that I am obliged to follow.” The District Court therefore abused its

discretion by not considering a sentencing variance based on the crack/powder cocaine

disparity.

       After Farrish’s sentencing hearing, the Supreme Court approved our holding in

Gunter that a District Court errs in sentencing a criminal defendant when it believes it

cannot depart from the Guidelines on the basis of the crack/powder cocaine disparity. See

Kimbrough v. United States, 128 S. Ct. 558, 564 (2007) (“[T]he cocaine Guidelines, like



                                              12
all other Guidelines, are advisory only, and . . . the Court of Appeals [for the Fourth

Circuit] erred in holding the crack/powder disparity effectively mandatory.”).

Additionally, at the time Farrish filed his brief, the U.S. Sentencing Commission had not

yet adopted Amendment 706, which modified the applicable Guidelines ranges to reduce

the disparity between crack and powder cocaine offenses, specifically decreasing the

Guidelines base offense levels for crack cocaine sentences by two levels. U.S.

Sentencing Guidelines Manual § 2D1.1. Because the District Court sentenced Farrish

believing it did not have the power to consider the crack/powder cocaine disparity as

described in Gunter, and subsequently recognized by the Supreme Court in Kimbrough,

we will remand to allow the District Court to take Kimbrough and Amendment 706 into

consideration and to provide clearer language for whatever sentence the District Court

imposes on remand. Accordingly, we will vacate Farrish’s sentence and remand this case

for resentencing in accordance with this opinion.

                                             IV.

       For the foregoing reasons, we will affirm Farrish’s conviction, and we will vacate

Farrish’s sentence imposed by the District Court and remand for resentencing in light of

Kimbrough and Amendment 706.




                                             13
