F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 4 1997 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 96-1109 v. No. 96-1111 (D.C. No. 95-CR-34-S) JASON HALEY, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and KELLY, Circuit Judges.
Defendant-Appellant Jason Haley (“Haley”) was convicted in federal
district court of aiding and abetting the distribution of methamphetamine, in
violation of 18 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; using and
carrying a firearm in relation to a drug trafficking offense, in violation of 18
U.S.C. § 924(c); and possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). Haley’s base offense level for the aiding and abetting
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. conviction was calculated at 18. Based on this offense level and his criminal
history category the district court sentenced Haley to 71 months imprisonment. 1
In addition, for his § 924(c) conviction Haley received an additional consecutive
60-month sentence.
In this appeal Haley challenges the sufficiency of the evidence before the
jury that he used and carried a firearm during and in relation to the drug
trafficking offense for which he was convicted. Haley also challenges the
district court’s calculation of the quantity of drugs involved in its sentencing
determination. We affirm both Haley’s conviction and sentence.
Background
Haley’s arrest, indictment and conviction stem from a single encounter
involving Haley, cooperating co-defendant Russell Coleman (“Coleman”), with
whom Haley lived at the times in question, and undercover ATF agent Scot
Thomasson (“Thomasson”). On November 30, 1994, as part of his ongoing
investigation of a suspected methamphetamine / illegal weapons ring operating
out of Colorado Springs, Colorado, Thomasson visited Coleman’s apartment to
purchase some methamphetamine. Thomasson purchased methamphetamine from
1 Haley received a concurrent sentence for possession of a firearm by a convicted felon.
-2- Coleman but was told by Coleman that he would have to come back if he wanted
to buy more, as Coleman was expecting to receive additional supplies later that
day.
Thomasson returned to Coleman’s apartment later that evening. This time,
because Coleman’s room was being used by co-defendant James Maass to sell
methamphetamine, Coleman directed Thomasson into Haley’s room. Upon
entering Haley’s room, Thomasson noticed two handguns sitting on a coffee table,
along with a small scale and some plastic bags. Coleman told Thomasson that the
weapons belonged to Haley, and Coleman introduced Haley to Thomasson as
Coleman’s “partner.” Haley volunteered to assist the transaction by measuring
out the drugs on a scale, and Coleman accepted his assistance. Thomasson,
concerned for his safety, picked up both guns and unloaded them, placing the
ammunition well away from the guns on a separate table. Haley then retrieved the
guns. He reloaded one of the guns and placed it on a shelf in his closet. Haley
loaded and “racked” the other gun, a semi-automatic firearm, put it on his person,
and kept it there throughout the remainder of the transaction.
When law enforcement officials began arresting ring members early in
1995, Haley was arrested and indicted with conspiracy to distribute and
possession with intent to distribute 100 grams or more of methamphetamine;
aiding and abetting the distribution of methamphetamine; using and carrying a
-3- firearm in relation to a drug trafficking offense; and possession of a firearm by a
felon. A jury trial was held. Coleman and one other co-defendant pled guilty and
testified against the remaining co-defendants at trial. Haley was found innocent
of the conspiracy charge but guilty of all remaining charges.
Discussion
1. Sufficiency of “used and carried” evidence
Haley claims that there was insufficient evidence to support his conviction
under 18 U.S.C. § 924(c) of using or carrying a firearm during and in relation to a
drug trafficking crime. A claim of insufficiency of the evidence presents a “high
hurdle” to the criminal defendant; “in reviewing the sufficiency of the evidence to
support a jury verdict, this court must review the record de novo and ask only
whether, taking the evidence -- both direct and circumstantial -- in the light most
favorable to the government, a reasonable jury could find the defendant guilty
beyond a reasonable doubt.” United States v. Voss, 82 F.3d 1521, 1524-25 (10th
Cir. 1996).
Under 18 U.S.C. § 924(c) it is a crime for any person to use or carry a
firearm “during and in relation to” any drug trafficking crime. This court has
held that when reviewing § 924(c) convictions for the use or carrying of a
firearm, we may affirm if the evidence is sufficient to support conviction under
-4- either the “use” or the “carry” prongs of the statute. See United States v.
Richardson, 86 F.3d 1537, 1546-47 (10th Cir. 1996). A firearm is “used” in a
drug transaction if the defendant “actively employed” it, for example by
“brandishing, displaying, bartering, striking with, and, most obviously, firing or
attempting to fire, a firearm.” Bailey v. United States, 116 S. Ct. 501, 508 (1995);
see also Richardson, 86 F.3d at 1547. A firearm is “carried” by a defendant
during a drug transaction if the defendant exercises “dominion and control” over
the weapon and transports or moves it. See Richardson, 86 F.3d at 1548. Finally,
in order to use or carry a firearm “during and in relation to” a drug trafficking
offense, the defendant must have intended that the firearm be available for use
during the transaction, and it must be shown that the weapon played an “integral
role in the drug offense.” Id.; see also United States v. Lampley, _F.3d_, 1997
WL 644459, *7 (10th Cir. Oct. 20, 1997) (noting that the government must
establish a “nexus” between the weapon and the underlying offense).
The evidence that Haley both used and carried the weapon during and in
relation to the transaction for which he was convicted is overwhelming.
According to the record, not only did Haley pick up a semi-automatic weapon,
reload it, and carry it on his person, he also “racked” the semi-automatic weapon,
that is, drew back the spring-loading mechanism on top of the barrel, which had
the effect of chambering a bullet.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 4 1997 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 96-1109 v. No. 96-1111 (D.C. No. 95-CR-34-S) JASON HALEY, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and KELLY, Circuit Judges.
Defendant-Appellant Jason Haley (“Haley”) was convicted in federal
district court of aiding and abetting the distribution of methamphetamine, in
violation of 18 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; using and
carrying a firearm in relation to a drug trafficking offense, in violation of 18
U.S.C. § 924(c); and possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). Haley’s base offense level for the aiding and abetting
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. conviction was calculated at 18. Based on this offense level and his criminal
history category the district court sentenced Haley to 71 months imprisonment. 1
In addition, for his § 924(c) conviction Haley received an additional consecutive
60-month sentence.
In this appeal Haley challenges the sufficiency of the evidence before the
jury that he used and carried a firearm during and in relation to the drug
trafficking offense for which he was convicted. Haley also challenges the
district court’s calculation of the quantity of drugs involved in its sentencing
determination. We affirm both Haley’s conviction and sentence.
Background
Haley’s arrest, indictment and conviction stem from a single encounter
involving Haley, cooperating co-defendant Russell Coleman (“Coleman”), with
whom Haley lived at the times in question, and undercover ATF agent Scot
Thomasson (“Thomasson”). On November 30, 1994, as part of his ongoing
investigation of a suspected methamphetamine / illegal weapons ring operating
out of Colorado Springs, Colorado, Thomasson visited Coleman’s apartment to
purchase some methamphetamine. Thomasson purchased methamphetamine from
1 Haley received a concurrent sentence for possession of a firearm by a convicted felon.
-2- Coleman but was told by Coleman that he would have to come back if he wanted
to buy more, as Coleman was expecting to receive additional supplies later that
day.
Thomasson returned to Coleman’s apartment later that evening. This time,
because Coleman’s room was being used by co-defendant James Maass to sell
methamphetamine, Coleman directed Thomasson into Haley’s room. Upon
entering Haley’s room, Thomasson noticed two handguns sitting on a coffee table,
along with a small scale and some plastic bags. Coleman told Thomasson that the
weapons belonged to Haley, and Coleman introduced Haley to Thomasson as
Coleman’s “partner.” Haley volunteered to assist the transaction by measuring
out the drugs on a scale, and Coleman accepted his assistance. Thomasson,
concerned for his safety, picked up both guns and unloaded them, placing the
ammunition well away from the guns on a separate table. Haley then retrieved the
guns. He reloaded one of the guns and placed it on a shelf in his closet. Haley
loaded and “racked” the other gun, a semi-automatic firearm, put it on his person,
and kept it there throughout the remainder of the transaction.
When law enforcement officials began arresting ring members early in
1995, Haley was arrested and indicted with conspiracy to distribute and
possession with intent to distribute 100 grams or more of methamphetamine;
aiding and abetting the distribution of methamphetamine; using and carrying a
-3- firearm in relation to a drug trafficking offense; and possession of a firearm by a
felon. A jury trial was held. Coleman and one other co-defendant pled guilty and
testified against the remaining co-defendants at trial. Haley was found innocent
of the conspiracy charge but guilty of all remaining charges.
Discussion
1. Sufficiency of “used and carried” evidence
Haley claims that there was insufficient evidence to support his conviction
under 18 U.S.C. § 924(c) of using or carrying a firearm during and in relation to a
drug trafficking crime. A claim of insufficiency of the evidence presents a “high
hurdle” to the criminal defendant; “in reviewing the sufficiency of the evidence to
support a jury verdict, this court must review the record de novo and ask only
whether, taking the evidence -- both direct and circumstantial -- in the light most
favorable to the government, a reasonable jury could find the defendant guilty
beyond a reasonable doubt.” United States v. Voss, 82 F.3d 1521, 1524-25 (10th
Cir. 1996).
Under 18 U.S.C. § 924(c) it is a crime for any person to use or carry a
firearm “during and in relation to” any drug trafficking crime. This court has
held that when reviewing § 924(c) convictions for the use or carrying of a
firearm, we may affirm if the evidence is sufficient to support conviction under
-4- either the “use” or the “carry” prongs of the statute. See United States v.
Richardson, 86 F.3d 1537, 1546-47 (10th Cir. 1996). A firearm is “used” in a
drug transaction if the defendant “actively employed” it, for example by
“brandishing, displaying, bartering, striking with, and, most obviously, firing or
attempting to fire, a firearm.” Bailey v. United States, 116 S. Ct. 501, 508 (1995);
see also Richardson, 86 F.3d at 1547. A firearm is “carried” by a defendant
during a drug transaction if the defendant exercises “dominion and control” over
the weapon and transports or moves it. See Richardson, 86 F.3d at 1548. Finally,
in order to use or carry a firearm “during and in relation to” a drug trafficking
offense, the defendant must have intended that the firearm be available for use
during the transaction, and it must be shown that the weapon played an “integral
role in the drug offense.” Id.; see also United States v. Lampley, _F.3d_, 1997
WL 644459, *7 (10th Cir. Oct. 20, 1997) (noting that the government must
establish a “nexus” between the weapon and the underlying offense).
The evidence that Haley both used and carried the weapon during and in
relation to the transaction for which he was convicted is overwhelming.
According to the record, not only did Haley pick up a semi-automatic weapon,
reload it, and carry it on his person, he also “racked” the semi-automatic weapon,
that is, drew back the spring-loading mechanism on top of the barrel, which had
the effect of chambering a bullet. Taking the evidence in the light most favorable
-5- to the government, Haley’s actions easily qualify as “brandishing” or
“displaying” the weapon. Furthermore, Haley did not shelve the semi-automatic
or otherwise put it away, but rather he placed it on his person and kept it there for
the duration of the deal. This action clearly fits the legal definition of “carrying”
a firearm.
As for the “during and in relation to” prong of § 924(c), this court has held
that “‘the evident purpose of section 924(c) was to impose more severe sanctions
where firearms facilitated, or had the potential of facilitating, the commission of’
a drug transaction.” Richardson, 86 F.3d at 1548 (quoting United States v.
Sullivan, 919 F.2d 1403, 1432 (10th Cir. 1990) (further citation omitted). On
appellate review, we may “presume a nexus between a firearm and a drug
trafficking offense when an individual with ready access to a firearm is involved
in such offense . . . . However, a defendant can overcome this presumption by
presenting evidence that the weapon was present for reasons other than
facilitating the drug transaction.” Id. (citations and internal quotations omitted).
Haley argues that he did not use a firearm during and in relation to the
transaction between Coleman and Thomasson, because that transaction just
happened to occur in his room, due to the temporary unavailability of Coleman’s
room. Haley contends that he did not place the guns in the room in anticipation
of the deal, and indeed had no knowledge that a deal was to occur in his room
-6- until Coleman called him in. He had no stake in the outcome of the deal, and
merely made himself part of the transaction by volunteering to help weigh the
drugs. Because he had no intent to use the weapons and because of his peripheral
involvement in the deal, Haley claims that the evidence shows that the weapons
were present “for a reason other than facilitating a drug transaction.”
Here, Haley took one of the guns that Thomasson had unloaded, reloaded it,
racked it, placed it on his person, and stayed in the room for the remainder of the
transaction. Haley offers no evidence that there was any reason for him to reload,
rack and carry the semi-automatic for any purpose other than to facilitate the
transaction between Coleman and Thomasson. Thus, Haley fails to overcome the
presumed nexus between the firearm and the crime.
2. Calculation of the quantity of methamphetamine
In applying the Sentencing Guidelines, the district court's factual
determinations of drug quantities are reviewed under the clearly erroneous
standard. See United States v. Richards, 27 F.3d 465, 468 (10th Cir.1994). “In
determining the quantity of drugs involved, the government is not limited to the
amount ... for which a defendant was convicted, and a defendant is responsible for
‘all quantities ... with which he was directly involved.’” United States v. Sloan,
65 F.3d 861, 865 (10th Cir.1995) (quoting U.S.S.G. § 1B1.3, cmt., note 2)) The
Government has the burden of proving the quantity by a preponderance of the
-7- evidence. See United States v. Cody, 7 F.3d 1523, 1527 (10th Cir.1993). In
making its calculation “[a] sentencing court may consider any reliable source of
information that has some minimum indicia of reliability." Id.
The district court calculated Haley’s base offense level to be 18, as
established under U.S.S.G. § 2D1.1(c)(11) (trafficking involving 20 to 40 grams
of methamphetamine). Haley admits that the 6.9 grams purchased by Thomasson
during the transaction that Haley assisted were properly used to calculate his
sentence, but argues that it was error for the district court to consider as relevant
an additional 21 uncharged grams of methamphetamine that co-defendant
Coleman testified he fronted to Haley to sell over a two-week period prior to the
November 30 transaction with Thomasson for which Haley was convicted. Haley
does not dispute that he received the 21 grams of methamphetamine, but insists
that the Government failed to prove that he ever intended to sell, or that he did in
fact sell, the 21 grams of methamphetamine in question. Haley claims that
because he could only have been charged for possession, not aiding and abetting
distribution, of those 21 grams, that quantity of methamphetamine cannot be
considered relevant conduct under the Guidelines. See U.S.S.G. § 1B1.3(a)(2);
§ 3D1.2(d); United States v. Taylor, 97 F.3d 1360, 1363 (10th Cir. 1996).
Haley does not assert that he in fact used all 21 grams personally, nor does
he offer any corroborating evidence of what became of the 21 grams of
-8- methamphetamine at issue. Instead, Haley claims that the Government failed to
meet its burden of proof that he obtained the 21 grams during the two-week
period prior to November 30 for the purpose of distributing it. However, the
Government presented a plethora of evidence that he did. Coleman testified that
during that period he repeatedly entrusted Haley with quantities of
methamphetamine in small retail-sized packages to sell for Coleman. Coleman’s
drug ledgers substantiate the amounts fronted to Haley during that period, as well
as showing that Haley made partial payments on the drugs fronted by Coleman.
Haley told others that was able and willing to sell methamphetamine. Brenda
Baker, Coleman’s girlfriend and fellow methamphetamine addict, testified that
Haley might use between one-quarter to one-half a gram of methamphetamine per
day. Thus, he might have consumed somewhere between four and seven grams
within a two-week period. Given that Haley offered no proof of what happened
to the 21 grams of methamphetamine he was fronted, the Government more than
met its burden of providing the court with a preponderance of evidence that
Haley obtained the additional 21 grams of methamphetamine from Coleman for
the purpose of selling it. The district court found that Haley generally received
methamphetamine from Coleman for the purpose of reselling it. The court did not
err in considering this amount of methamphetamine to be relevant in determining
Haley’s base offense level.
-9- Conclusion
For the reasons stated above Haley’s conviction under 18 U.S.C. § 924(c)
and the district court’s calculation of Haley’s base offense level are AFFIRMED.
ENTERED FOR THE COURT
David M. Ebel Circuit Judge
- 10 -