                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-15-2004

USA v. Sparrow
Precedential or Non-Precedential: Precedential

Docket No. 02-3571




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Recommended Citation
"USA v. Sparrow" (2004). 2004 Decisions. Paper 555.
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                        PRECEDENTIAL       Patrick L. Meehan
                                           United States Attorney
        UNITED STATES                      Laurie Magid
       COURT OF APPEALS                    Deputy United States Attorney
     FOR THE THIRD CIRCUIT                 Emily McKillip
                                           Assistant United States Attorney
                                           Judy Goldstein Smith
             No. 02-3571                   Assistant United States Attorney
                                           615 Chestnut Street
                                           Philadelphia, PA 19106
  UNITED STATES OF AMERICA
                                                  Attorneys for Appellee
                   v.

       GAYLORD SPARROW,
                                                 OPINION OF THE COURT
                    Appellant


                                           AM BRO, Circuit Judge
          On Appeal from the                      Gaylord Sparrow seeks a writ of
      United States District Court         habeas corpus in regard to his conviction
for the Eastern District of Pennsylvania   and sentence under 18 U.S.C. § 924(c) —
D.C. Criminal Action No. 99-cr-00290       possession of a firearm in furtherance of a
     (Honorable Harvey Bartle, III)        drug trafficking crime. He argues that the
                                           facts of the case do not support his
                                           conviction. We disagree and affirm the
                                           District Court’s decision to deny his
  Submitted Under Third Circuit LAR        habeas petition.
               34.1(a)
                                           I. Factual and Procedural Background
           March 23, 2004
                                                  Sparrow sold marijuana out of a
    Before: ROTH, AMBRO, and               convenience store on Chew Avenue in
     CHERTOFF, Circuit Judges              Philadelphia. Acting on complaints from
                                           citizens, the Philadelphia police conducted
    (Opinion filed June 15, 2004 )         surveillance on the store.        A search
                                           warrant was obtained and executed in
Stephen J. Binhak, Esq.                    March 1999. During the search, police
3103 Philmont Avenue                       found a concealed compartment under the
Huntingdon Valley, PA 19006                floor tiles behind the counter.        The
                                           compartment contained nine large Ziploc
      Attorney for Appellant               bags of marijuana, $140 in cash and a
loaded Jennings .22 caliber pistol.1 In            28 U.S.C. § 2255, alleging ineffective
addition, a key to the store was found in          assistance of counsel. He argues that the
Sparrow’s pocket, and he was the only              facts established in the plea agreement and
tenant on the lease. Sparrow admitted              hearing were insufficient to sustain his §
possession of the gun. He now alleges,             924(c) conviction. Therefore, he contends
however, that the police had to pry the            it was error for counsel to permit him to
floor tiles up with a crowbar to gain access       plead guilty to this count. The District
to this compartment.                               Court denied Sparrow’s petition and his
                                                   request for a certificate of appealability.
       After spending ten months as a
                                                   We granted the request for a certificate of
fugitive, Sparro w u ltim a te ly w as
                                                   appealability on “whether the facts of the
apprehended and pled guilty to: (1) one
                                                   case support a conviction for possession of
count of distribution of marijuana and one
                                                   a gun in furtherance of a drug trafficking
count of possession with intent to
                                                   crime.” 2
distribute marijuana, both in violation of
21 U.S.C. § 841(a)(1); (2) two counts of                    II. Standard of Review
being a felon in possession of a firearm, 18
                                                           To the extent this case turns on
U.S.C. § 922(g); and (3) possession of a
                                                   statutory interpretation, such as the legal
firearm in furtherance of a drug trafficking
                                                   requirements for proving a § 924(c)
crime, 18 U.S.C. § 924(c). The District
                                                   conviction, we exercise plenary review.
Court imposed a sentence of sixty months
                                                   United States v. Cepero, 224 F.3d 256, 258
imprisonment for the distribution and felon
                                                   (3d Cir. 2000) (en banc); see also United
in possession counts and a consecutive
                                                   States v. Mackey, 265 F.3d 457, 460 (6th
sixty-month sentence for the § 924(c)
                                                   Cir. 2001) (discussing § 924(c)). Whether
count. Sparrow appealed his sentence (on
                                                   Sparrow’s possession of a firearm was in
an issue unrelated to his current petition)
                                                   furtherance of his drug trafficking
and we affirmed the judgment of the
                                                   activities, however, is a sufficiency of the
District Court in July 2001.
                                                   evidence question.       United States v.
      Sparrow then filed a petition for a          Lomax, 293 F.3d 701, 705 (4th Cir. 2002),
writ of habeas corpus pursuant to                  cert. denied, 537 U.S. 1031 (2002); United
                                                   States v. Ceballos-Torres, 218 F.3d 409,
                                                   411 (5th Cir. 2000). Therefore, we
  1                                                examine the “totality of the evidence, both
     While not relevant to the resolution of
                                                   direct and circumstantial,” and must credit
this case, the search also uncovered the
                                                   “all available inferences in favor of the
following: (1) two large bags of marijuana
                                                   government.” United States v. Gambone,
and forty dollars on the store counter-top,
and (2) thirty-one large bags of marijuana,
fifty-seven small packets of marijuana and
                                                     2
a scale above the steps leading to the                 We have jurisdiction under 28 U.S.C.
cellar.                                            §§ 1291 and 2253.

                                               2
314 F.3d 163, 170 (3d Cir. 2003) (citations              the type of drug activity that
omitted), cert. denied, 124 S. Ct. 67                    is being conducted,
(2003).                                                  accessibility of the firearm,
                                                         the type of the weapon,
              III. Analysis
                                                         whether the weapon is
       Sparrow argues that possession of                 stolen, the status of the
the loaded pistol was not in furtherance of              possession (legitimate or
his drug trafficking crimes because an                   illegal), whether the gun is
insufficient factual nexus exists between                loaded, proximity to drugs
the two. Although our Court has not                      or drug profits, and the time
decided this issue in a precedential                     and circumstances under
opinion3 , the facts of this case and a                  which the gun is found.
review of relevant case law satisfy us that
                                                  Id. at 414-15; see also Lomax, 293 F.3d at
the e vi de nc e s up p or ts Sp ar ro w ’s
                                                  705; United States v. Timmons, 283 F.3d
conviction.
                                                  1246, 1253 (11th Cir. 2002), cert. denied,
        Under § 924(c), the “mere                 537 U.S. 1004 (2002); Mackey, 265 F.3d
presence” of a gun is not enough. “What           at 462.
is instead required is evidence more
                                                          Sparrow’s argument is premised on
specific to the particular defendant,
                                                  the fact that the pistol was found
showing that his or her possession actually
                                                  underneath the floor tiles.        Because
furthered the drug trafficking offense.”
                                                  (according to Sparrow) the police needed
Ceballos-Torres, 218 F.3d at 414; see also
                                                  a crowbar to gain access to the secret
Mackey, 265 F.3d at 462 (stating “that the
                                                  compartment, the firearm could not have
possession of a firearm on the same
                                                  been in furtherance of his drug trafficking
premises as a drug transaction would not,
                                                  activities. See Mackey, 265 F.3d at 462
without a showing of connection between
                                                  (stating “the firearm must be strategically
the two, sustain a § 924(c) conviction”).
                                                  located so that it is quickly and easily
Put another way, the evidence must
                                                  available for use” (citation omitted));
demonstrate that possession of the firearm
                                                  United States v. Lawrence, 308 F.3d 623,
advanced or helped forward a drug
                                                  630 (6th Cir. 2002) (reversing § 924(c)
trafficking crime. Lomax, 293 F.3d at
                                                  conviction when firearm was found
705; Ceballos-Torres, 218 F.3d at 414. In
                                                  unloaded, in a cupboard and “wrapped in
making this determination, the following
                                                  the same newspaper in which it was
nonexclusive factors are relevant:
                                                  covered at the time of delivery”); United
                                                  States v. Iiland, 254 F.3d 1264, 1274 (10th
   3                                              Cir. 2001) (reversing conviction because
    We did address it, however, in a not
                                                  the Government produced “no evidence
precedential opinion–United States v.
                                                  that the gun and drugs were ever kept in
Morgan, 33 Fed. Appx. 603 (3d Cir.
                                                  the same place or that [the defendant] ever
2002).

                                              3
kept the gun accessible when conducting                      drugs were found in a ceiling crawlspace,
drug transactions”).                                         requiring the agent to stand on a chair and
                                                             climb into the crawlspace); Morgan, 33
          While the location of a firearm is
                                                             Fed. Appx. at 605-606 (affirming
a d m i t t e d l y r e l e v a n t , im m e d i a t e
                                                             conviction when firearms and drugs were
accessibility at the time of search or arrest
                                                             found together in a drop ceiling while the
is not a legal requirement for a § 924(c)
                                                             defendant was away from his apartment);
conviction. The only court to state or
                                                             Bressi v. United States, No. Civ. A. 01-
imply this is Mackey, but its statement
                                                             407, 2001 WL 395289 (E.D. Pa. Apr. 5,
must be analyzed in context. See 265 F.3d
                                                             2001) (denying a habeas petition when a
at 462 (stating that accessibility and the
                                                             firearm and drugs were found in a locked
Ceballos-Torres factors merely help “to
                                                             safe).
distinguish possession in furtherance of a
crime from innocent possession of a                                  Examining the facts of the case,
wall-mounted antique or an unloaded                          many of the Ceballos-Torres factors are
hunting rifle locked in a cupboard”). Even                   satisfied. As a prior felon, Sparrow may
the Sixth Circuit does not interpret its                     not legally possess a firearm. In addition,
Mackey decision as requiring immediate                       the firearm in question was loaded, found
accessibility. United States v. Nance, 40                    in a public store and kept in the same floor
Fed. Appx. 59, 66 (6th Cir. 2002) (“One                      compartment as nine large Ziploc bags of
way to demonstrate ‘possession in                            marijuana and $140 in cash.           Even
furtherance’ is by showing the guns were                     assuming (as Sparrow claims) the firearm
strategically located for quick and easy                     was not easily accessible, it was
use. The Mackey court also recognized as                     strategically located. The gun was placed
helpful the [Ceballos-Torres] factors . . . .”               so that it would be immediately available
(emphasis added) (citations omitted)), cert.                 for Sparrow’s protection whenever he
denied, 537 U.S. 989 (2002).                                 retrieved drugs or money from the floor
                                                             compartment. Therefore, it is reasonable
       In fact, a number of courts have
                                                             to assume the firearm was placed in the
upheld § 924(c) convictions when the
                                                             floor compartment for that purpose and
firearm in question was not easily or
                                                             was possessed in furtherance of Sparrow’s
immediately accessible. See United States
                                                             drug activities.
v. Garner, 338 F.3d 78, 80-81 (1st Cir.
2003) (affirming conviction when firearms                                     *****
and drugs were found in a hole in a wall of
                                                                    In this context, sufficient evidence
a building’s common basement and the
                                                             exists to support Sparrow’s § 924(c)
defendant was selling drugs out of an
                                                             conviction. As such, his attorney’s advice
apartment in the building), cert. denied,
                                                             to plead guilty does not constitute
124 S. Ct. 948 (2003); United States v.
                                                             ineffective assistance of counsel. His
Luciano, 329 F.3d 1, 3-6 (1st Cir. 2003)
                                                             petition for a writ of habeas corpus is
(affirming conviction when a firearm and

                                                         4
denied and the District Court’s decision is
affirmed.




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