                           NOT RECOMMENDED FOR PUBLICATION
                                       File Name: 05a0307n.06
                                         Filed: April 21, 2005

                                             No. 04-1154

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
     Plaintiff-Appellee                            )
                                                   )         ON APPEAL FROM THE UNITED
v.                                                 )         STATES DISTRICT COURT FOR
                                                   )         THE EASTERN DISTRICT OF
JIMI RAY DRAKE,                                     )        MICHIGAN
                                                   )
     Defendant-Appellant                           )



BEFORE: ROGERS and MERRITT, Circuit Judges; and DUPLANTIER,*
             District Judge


        PER CURIAM: Jimi Ray Drake was tried by a jury on a three count indictment charging

him with being a felon in possession of a firearm (Count One, 18 U.S.C. §922(g)), possession with

intent to distribute marijuana and cocaine base (Count Two, 21 U.S.C. §821(a)(1)), and possession

of a firearm in furtherance of a drug trafficking offense (Count Three, 18 U.S.C. §924(c)(1)(A)).

The jury convicted him on the first two counts and found him not guilty on Count Three.

        Applying Application Note 3 of Section 2D1.1 of the Sentencing Guidelines, the district

court added two levels to Drake’s base offense level for possession of a firearm during the

commission of the drug offense, overruling defendant’s objection that the jury acquittal on Count

Three    precluded the weapon enhancement.          Drake appealed his conviction and sentence,

contending

* The Honorable Adrian G. Duplantier, United States District Judge for the Eastern District of Louisiana
sitting by designation.
that the district court abused its discretion by allowing the prosecution - over his objection - to

question him regarding a prior controlled substance conviction, and that the two point sentencing

enhancement violated the Sixth Amendment, requiring a remand for resentencing under United

States v. Booker,      U.S.      , 125 S.Ct. 738 (2005).

       We affirm the conviction but remand for resentencing, the government having conceded that

remand is necessary in light of Booker. We do not reach the evidentiary issue, because we

conclude that the evidence of guilt was overwhelming and that any error - we do not suggest that

there was any error- was harmless in any event.

       After surveillance of a home located at 14931 Lannette St. in Detroit, Michigan, the Detroit

Police Department obtained a warrant to search the premises. An officer then conducted additional

surveillance in the area and observed defendant selling to several individuals out of a window of

the home what appeared to be drugs. The officer then went to his precinct, reported his

observations, and returned with the “raid team” to execute the search warrant. As police entered

the residence in executing the warrant they observed Drake throw a can, later found to contain

twenty- five zip-lock bags of cocaine, out of a window of the house. During the search of the

residence, Drake directed officers to a footstool which contained fourteen zip-lock bags of

marijuana. Police also seized a rifle found leaning against a couch in the living room.

       During the trial, the parties stipulated that 20.97 grams of marijuana and 3.86 grams of

cocaine base were found during the search, and that defendant had previously been convicted of a

felony. At the trial defendant took the stand and testified that the drugs and gun did not belong to

him, but to his landlord. He admitted knowing that the can which he tossed through the window

contained cocaine base and admitted directing the police officers to the footstool containing the

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bags of marijuana packaged for distribution. However, he denied possession of the drugs or selling

drugs through the window.

       During Drake’s cross examination, when the prosecutor first attempted to impeach Drake’s

testimony by questioning him about the nature and details of his prior conviction for possession

with intent to distribute marijuana, the trial judge sustained defense counsel’s objection, on the

ground that the prejudicial effects of the testimony would outweigh its probative value as

impeachment evidence. Fed. R. Evid. 609(a). Later in the cross-examination, Drake claimed that

the reason he threw the can filled with cocaine base through the window was that “I didn’t know

about the drug laws.” When the prosecutor asked Drake “[a]nd you didn’t know absolutely anything

about any drug laws?,” he replied, “[n]o, I didn’t.” Over the defense’s objection, the judge then

granted the prosecutor permission to question Drake about certain details concerning the prior

offense, to impeach Drake’s testimony that he knew nothing about drug laws. By questioning Drake

the prosecutor then established that Drake had pleaded guilty to a drug offense. On further cross

-examination, Drake admitted that in connection with his guilty plea he went to court, went before

a judge, the judge advised him of his rights, he had a lawyer, the lawyer discussed the case with

him, the lawyer told him the penalty, and the lawyer talked with him about the evidence.

       At the conclusion of that line of questioning, the district judge gave a limiting instruction to

the jury as follows:

       As jurors you have just heard evidence of a prior conviction that is acknowledged to
       have been committed by the Defendant. You should be advised that this evidence
       was introduced for very limited purpose, and that is to assist you in assessing the
       credibility of this witnesses’ testimony. You are not to consider this evidence as
       proving that Mr. Drake is a bad person or more likely to have committed a drug
       offense on this occasion, only because he had committed a drug offense on an earlier
       occasion, that is, it is not to demonstrate his propensity to commit bad acts but only
       again to assist you in assessing the truthfulness of the testimony here today and

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       yesterday.

       Defendant contends that the trial judge abused his discretion1 by admitting the evidence

concerning the prior drug conviction, because of the potential that the jury would convict the

defendant based on the inference that he was acting in conformity with his prior misconduct and

that the evidence was so prejudicial that it deprived defendant of a fair trial. As we stated earlier,

we express no opinion concerning the admissibility issue; it is unnecessary to resolve this issue. The

evidence that the defendant committed the crimes for which he was convicted was so compelling

that, if any error occurred, it was clearly harmless. Error is harmless if “absent the improperly

admitted evidence, it is clear beyond a reasonable doubt that the jury would have returned a verdict

of guilty.” United States v. Wolf, 879 F.2d 1320, 1324 (6th Cir. 1989).

        Defendant did not dispute that the gun seized by police was a prohibited firearm as defined

in 18 U.S.C. §922(g). He concedes that the material in the can he tossed through the window was

crack cocaine (21 U.S.C. §§ 812 and 841(a)(1)), and that the material stashed in the footstool was

marijuana (21 U.S.C. §§812 and 841(a)(1)). Additionally, defendant did not dispute that the

amount of both illegal drugs clearly proved intent to distribute. Thus the only contested fact issue

was whether the drugs and the gun were in defendant’s possession. If they were, defendant violated

18 U.S.C. §922(g) and 21 U.S.C. §841(a)(1) as charged in the indictment.

       Based upon the following evidence, we conclude that it is beyond a reasonable doubt that

absent the evidence claimed to have been improperly admitted, the jury would nonetheless have




       1
         We review a district court’s evidentiary rulings for abuse of discretion. United States
v. Sassanelli, 118 F.3d 495, 498 (6th Cir. 1997).

                                                  4
decided that defendant was in possession of the drugs and gun and would have returned a verdict

of guilty:

               •       a police officer who conducted the surveillance of the home prior to the
                       execution of the search warrant and the arrest of defendant identified Drake
                       as the individual selling what appeared to be narcotics through the window:
                       “I observed three people walk up the driveway, on the east side window and
                       engage in conversation with the defendant . . . and the buyers reached in their
                       pockets and pulled out US currency in exchange for suspected narcotics from
                       the Defendant . . .”;
               •       after observing what appeared to be a drug transaction, the officer went to his
                       precinct, returned to the Lannette St. house with a crew, and executed the
                       search warrant;
               •       immediately after entering the residence, the surveilling officer identified
                       defendant as the suspected drug seller;
               •       defendant was alone in the house at the time of the search;
               •       defendant knew where the cocaine base and marijuana were located;
               •       defendant threw the can containing the cocaine base out of a window;
               •       defendant directed the police officers to the marijuana in the footstool; and
               •       defendant admitted that he talked to a person through the window in the
                       house on the day the police officers executed a search warrant.

       For the foregoing reasons, we affirm Drake’s convictions and remand the case to the district

court for resentencing in light of United States v. Booker.




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