                                       No. 04-3005
                                 File Name: 05a0798n.06
                                Filed: September 21, 2005

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                           )
                                                    )
   Plaintiff-Appellee,                              )
                                                    )   ON APPEAL FROM THE
       v.                                           )   UNITED STATES DISTRICT
                                                    )   COURT FOR THE NORTHERN
SIDDIQ ABDUL HAMID,                                 )   DISTRICT OF OHIO
                                                    )
   Defendant-Appellant.                             )



Before:       NELSON and SUTTON, Circuit Judges, and ZATKOFF, District Judge.*


       DAVID A. NELSON, Circuit Judge. This is an appeal from a judgment of conviction

and sentence in a criminal case. The defendant challenges his convictions on grounds of

insufficiency of the evidence, erroneous exclusion of testimony, and ineffective assistance

of counsel. He challenges his sentence on the ground that his classification as a “career

offender” under the United States Sentencing Guidelines was both incorrect and

unconstitutional. For the reasons set forth below, we shall affirm the defendant’s convictions

but vacate his sentence and remand the case for re-sentencing.




       *
        The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 04-3005
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                                               I


       The defendant, Siddiq Abdul Hamid (a/k/a Andre Lindsay), was a member of a group

identified in his brief as the Black Stone Rangers Street Gang. In May of 2002 Mr. Hamid

and other Black Stone Rangers made plans to rob a man whom they thought would have

large quantities of cocaine, marijuana, and cash. Armed with a sawed-off shotgun and

several handguns, the would-be robbers drove in two cars to the house of the intended victim.

He was not at home, and the robbery never took place.

       On their way back from the aborted robbery, Mr. Hamid and his associates were

noticed by a Cleveland, Ohio, police officer who “observed two autos driving erratically in

and out of traffic at a high rate of speed.” The officer, Joseph Sedlak, saw that the occupants

of the cars were all dressed in black. His suspicions aroused, Officer Sedlak stopped one of

the vehicles, a Plymouth driven by Mr. Hamid. The Plymouth sped away when the officer

got out of his cruiser. A chase ensued. The occupants of the Plymouth eventually abandoned

their vehicle and escaped on foot, but one of them was apprehended later that night, as were

the three occupants of the second car. Mr. Hamid was arrested subsequently and was

identified as the driver of the Plymouth.

       A federal grand jury charged Mr. Hamid and four alleged co-defendants with

conspiracy to possess cocaine and marijuana with intent to distribute the drugs, carrying

firearms during and in relation to a drug trafficking crime, and possession of an unregistered

sawed-off shotgun. Hamid was also charged with being a convicted felon in possession of
No. 04-3005
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firearms. A jury found him guilty on all counts. The jury specifically found that the drug

conspiracy of which Hamid was a part involved 500 or more grams of cocaine.

       Mr. Hamid was classified as a “career offender” under § 4B1.1 of the sentencing

guidelines. This classification, coupled with statutory minimum sentence provisions, resulted

in a guideline sentence range of imprisonment for 382 to 447 months. The district court

expressed the view that the guideline range was “grossly disproportionate” to the crimes, but

held that a downward departure was not warranted. Mr. Hamid was sentenced to 382

months, and he has perfected a timely appeal.


                                             II


       Mr. Hamid claims first that his convictions for conspiracy and carrying firearms

during a drug trafficking crime are not supported by sufficient evidence. Our task is to

decide whether, “after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).


                                             A


       The “essential elements” of a drug conspiracy are “(1) an agreement to violate drug

laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the

conspiracy.” United States v. Gibbs, 182 F.3d 408, 420 (6th Cir.) (internal quotation marks
No. 04-3005
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omitted), cert. denied, 528 U.S. 1051 (1999). Mr. Hamid acknowledges that the evidence

was sufficient to establish his knowing participation in a conspiracy. He maintains, however,

that the object of the conspiracy was not shown to extend beyond armed robbery.

       We disagree. Two of Mr. Hamid’s co-conspirators testified that the group planned

to sell the cocaine and marijuana that they hoped to obtain in the robbery. On the strength

of that evidence, a reasonable jury could find that a purpose of the conspiracy was to possess

controlled substances with the intent to distribute them — a violation of 21 U.S.C. § 841(a).


                                              B


       The elements of a violation of 18 U.S.C. § 924(c) are: (1) carrying or use of a firearm

(2) during and in relation to a drug trafficking crime. See United States v. Warwick, 167 F.3d

965, 971 (6th Cir.), cert. denied, 526 U.S. 1151 (1999). “A defendant carries a firearm when

he conveys or moves the firearm, including via a vehicle, and when there is ‘personal agency

and some degree of possession’ over the firearm.” Gibbs, 182 F.3d at 426 (quoting

Muscarello v. United States, 524 U.S. 125, 134 (1998)). The “during and in relation to”

element is satisfied where “the firearm furthered the purpose or effect of the [drug

trafficking] crime” and “its presence or involvement was not the result of coincidence.”

Gibbs, id.

       There was substantial evidence that Mr. Hamid had a .45-caliber handgun on his

person when he was at the house of the intended victim and that a sawed-off shotgun was in
No. 04-3005
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the Plymouth while Hamid was driving the vehicle. (Mr. Hamid does not challenge the

sufficiency of this evidence to establish the first element of a § 924(c) violation.) There was

also evidence that the firearms furthered the purpose of a drug trafficking crime. The

conspiracy in which Mr. Hamid participated was plainly a “drug trafficking crime” within

the meaning of § 924(c). See 18 U.S.C. § 924(c)(2) (defining “drug trafficking crime” as

“any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.) . . .”);

21 U.S.C. §§ 841(b)(1)(B) and 846 (providing that conspiracy to possess 500 grams or more

of cocaine with intent to distribute it is punishable by imprisonment for a minimum of five

years). As we have seen, a rational jury could find that one purpose of the conspiracy was

to obtain and sell controlled substances. And there was testimony that the conspirators’

firearms were intended to assist in that endeavor. In the words of one conspirator, the plan

“was to bring guns . . . so that we could obtain the stuff without no confrontations.” The jury

was thus justified in finding that both elements of the § 924(c) crime had been established.


                                              III


       Mr. Hamid’s next argument is that the district court abused its discretion by not

allowing testimony as to whether one of the co-conspirators was an informant for the Federal

Bureau of Investigation and, if so, whether that conspirator received favorable treatment from

the government. We see no abuse of discretion in this respect.
No. 04-3005
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       “The Supreme Court has recognized the government’s privilege not to reveal the

identity of persons who furnish information regarding violations of the law.” United States

v. Jenkins, 4 F.3d 1338, 1341 (6th Cir. 1993) (citing Roviaro v. United States, 353 U.S. 53

(1957)), cert. denied, 511 U.S. 1034 (1994). The privilege is not absolute, however. “Where

the disclosure of an informer’s identity . . . is relevant and helpful to the defense of an

accused, or is essential to a fair determination of a cause, the privilege must give way.”

Roviaro, 353 U.S. at 60-61.

       Here, as we see it, evidence that one of Mr. Hamid’s co-conspirators was an informant

for the FBI would not have been particularly relevant or helpful to Hamid’s defense. Such

evidence was certainly not essential to a fair determination of the case. The conspirator in

question, William Wilson, did not testify, so his status as an informant (and a recipient,

perhaps, of favorable treatment) could not have been used for impeachment purposes. We

are hard-pressed to see how Mr. Wilson’s status could have been probative of Mr. Hamid’s

guilt or innocence. Hamid suggests only that Wilson “may have been a critical witness for

the defense” and “would have shed light on the true intent of the conspirators.” But the

defense was free to call Mr. Wilson as a witness and to question him about the conspirators’

intent without disclosing that Wilson might have been a government informant. In short, Mr.

Hamid has not persuaded us that his defense was prejudiced by the challenged evidentiary

rulings.

                                            IV
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          Mr. Hamid claims next that the assistance rendered by his trial counsel was

ineffective. We normally decline to consider ineffective assistance claims on direct appeal,

preferring to let the factual bases for such claims be developed in connection with a motion

brought under 28 U.S.C. § 2255. See United States v. Wagner, 382 F.3d 598, 615 (6th Cir.

2004). We are not persuaded that a departure from that general rule is warranted in the case

at bar.


                                               V


          Finally, Mr. Hamid challenges his sentence on the grounds that he was erroneously

classified as a “career offender” under U.S.S.G. § 4B1.1 and that a jury, not the district court,

should have determined whether the classification was proper.

          Under U.S.S.G. § 4B1.1, a defendant is a career offender if (1) he was at least 18

years old at the time of the offense of conviction, (2) the offense of conviction is a felony and

either a crime of violence or a controlled substance offense, and (3) the defendant has at least

two prior felony convictions for either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a) (2002). Mr. Hamid does not dispute that the first two criteria are met

here. His argument is that his two prior felony convictions were “related cases” within the

meaning of U.S.S.G. § 4A1.2 and could not, therefore, be counted separately for purposes

of § 4B1.1.
No. 04-3005
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       “The provisions of § 4A1.2 . . . are applicable to the counting of convictions under §

4B1.1.” U.S.S.G. § 4B1.2, comment. (n.3) (2002). Accordingly, convictions in “related

cases” must be counted as a single conviction for purposes of the career-offender

determination. See id. § 4A1.2(a)(2). “Related cases” involve offenses that “occurred on the

same occasion, . . . were part of a single common scheme or plan, or . . . were consolidated

for trial or sentencing.” Id. § 4A1.2, comment. (n.3).

       Mr. Hamid’s prior felony convictions were for possession of cocaine and criminal

tools on August 26, 1993, and felonious assault on April 14, 1993. (JA 551-552.) These

offenses occurred on different occasions, obviously, and were not part of a common scheme

or plan. Hamid entered his pleas in the two cases on the same day and received his sentences

on the same day, but the district court found that the scheduling was a matter of convenience

and not a result of consolidation. That finding is not clearly erroneous. Mr. Hamid’s prior

convictions thus were not in “related cases,” and he was correctly classified as a career

offender.

       Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), Mr. Hamid argues that the

Sixth Amendment required that a jury, rather than the district court, decide whether he is a

career offender. The argument is unavailing. As the Supreme Court said in Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000), and reiterated in both Blakely, 124 S. Ct. at 2536, and

United States v. Booker, 125 S. Ct. 738, 756 (2005), prior convictions are excepted from the

rule requiring jury determination of disputed facts that enhance a defendant’s sentence
No. 04-3005
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beyond the maximum that would otherwise apply. It follows from this that career offender

status need not be determined by a jury. See United States v. Bradley, 400 F.3d 459, 462-63

(6th Cir.) (citing Almendarez-Torres v. United States, 523 U.S. 224 (1998)), petition for cert.

filed, No. 04-10620 (June 9, 2005).1

         The absence of a Sixth Amendment violation does not mean, however, that re-

sentencing is unnecessary. Under Booker, the sentencing guidelines must be treated as

advisory rather than mandatory. See Booker, 125 S. Ct. at 767. In the case at bar the district

judge made it clear that (1) he understood the guidelines to be mandatory, and (2) he

probably would have imposed a more lenient sentence had the guidelines allowed him to do

so. In these circumstances we must remand the case for re-sentencing. See United States

v. Barnett, 398 F.3d 516, 525-30 (6th Cir.), petition for cert. filed, No. 04-1690 (June 16,

2005).

         Mr. Hamid’s convictions are AFFIRMED, his sentence is VACATED, and the case

is REMANDED for re-sentencing.




         1
        Mr. Hamid also argues that it was improper for the district court to determine that
3000 grams of cocaine were involved in the drug conspiracy when the jury had found only
that 500 grams or more were involved. But the district court’s determination did not violate
the rule of Apprendi, Blakely, and Booker, given that the determination did not affect
Hamid’s sentence. Attribution of 3000 grams rather than 500 grams of cocaine to Mr. Hamid
caused his base offense level to be set at 28 rather than 26 under U.S.S.G. § 2D1.1(c) (2002).
Hamid’s classification as a career offender caused an adjustment of his offense level to 34,
however, and this adjustment would have applied regardless of whether the base offense
level was 26 or 28. See U.S.S.G. § 4B1.1(b).
