United States v. Larry Swafford

385 F.3d 1026, 65 Fed. R. Serv. 567, 2004 U.S. App. LEXIS 20542, 2004 WL 2185980
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 30, 2004
Docket03-5468
StatusPublished
Cited by85 cases

This text of 385 F.3d 1026 (United States v. Larry Swafford) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Larry Swafford, 385 F.3d 1026, 65 Fed. R. Serv. 567, 2004 U.S. App. LEXIS 20542, 2004 WL 2185980 (6th Cir. 2004).

Opinions

OPINION

GIBBONS, Circuit Judge.

Defendant-appellant Larry Swafford was charged in a three count indictment in the United States District Court for the Eastern District of Tennessee with (1) possession with intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); (2) possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and (8) possession of a firearm in furtherance of the drug trafficking crimes charged in the first two counts, in violation of 18 U.S.C. § 924(c). After a jury trial, Swaf-ford was convicted on all three counts and sentenced to 180 months imprisonment. Swafford brought this appeal, arguing that the evidence was insufficient to support his conviction for possession of a firearm in furtherance of a drug trafficking offense and that the district court erred in admitting the testimony of law enforcement officers who testified (1) that the amounts of drugs possessed by Swafford were consistent with resale and that dealers often carry firearms in connection with their sales activities; and (2) that a name on a business card belonged to a known drug dealer and numbers on that card corresponded to common drug prices. For the following reasons, we affirm Swafford’s conviction.

I.

On November 15, 2001, Detective Jimmy Smith of the Bradley County. Sheriffs Office acquired and executed a search warrant for Swafford’s residence, a single family house in Cleveland, Tennessee. Smith, accompanied by other officers, arrived at the residence shortly after 9:10 p.m. When Swafford’s wife answered the door, the officers entered and found Swafford lying in bed holding an infant. An officer found a loaded .45 caliber semi-automatic pistol within arm’s reach of where he had been lying. The officer seized this pistol, as well as two loaded .22 caliber pistols. The officers did not seize several rifles -and shotguns found in a gun cabinet.

An officer found ten to fifteen garbage bags in the bed of an old truck in a makeshift garage behind the house. The officers found a Tupperware bowl containing three one-ounce bags of marijuana and [1028]*1028some loose marijuana in one of the garbage bags. Also inside the bag were numerous sandwich baggies, each of which had two corners cut out. The officers also found methamphetamine weighing a total of 66.5 grams hidden in a stereo on a workbench in the garage. A shelf on the workbench held a blender which appeared to contain methamphetamine residue, a set of digital scales, and a playing card.1 Officers found $934 in cash in Swafford’s wallet, as well as a lawyer’s business card, on the back of which was written “Tony Perry 280” and “Ron 110.”

II.

In reviewing the sufficiency of the evidence for a criminal conviction, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the elements of the offense beyond a reasonable doubt.” United States v. Davis, 306 F.3d 398, 408 (6th Cir.2002).

We generally review evidentiary decisions for an abuse of discretion. United States v. Talley, 164 F.3d 989, 1000 (6th Cir.1999). If, however, the appealing party did not raise an objection to the introduction of the evidence at trial, we review the judge’s decision for plain error. United States v. Cowart, 90 F.3d 154, 157 (6th Cir.1996). “[Bjefore an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citations omitted).

III.

Swafford first argues that his conviction for possession of a firearm in furtherance of a drug offense was not supported by sufficient evidence. Eighteen U.S.C. § 924(e) provides:

Any person who, during and in relation to any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years.

18 U.S.C. § 924(c)(1)(A).2 This statute was interpreted by this court in United States v. Mackey, where we stated:

[W]e emphasize that the possession of a firearm on the same premises as a drug transaction would not, without a showing of a connection between the two, sustain a § 924(c) conviction. In order for the possession to be in furtherance of a drug crime, the firearm must be strategically located so that it is quickly and easily available for use. Other factors that may be relevant to a determination of whether the weapon was possessed in furtherance of the crime include whether the gun was loaded, the type of weapon, the legality of its possession, the type of drug activity conducted, and the time and circumstances under which the firearm was found.

[1029]*1029265 F.3d 457, 462 (6th Cir.2001) (citations omitted). The court noted that these factors would help the court “to distinguish possession in furtherance of a crime from innocent possession of a wall-mounted antique or an unloaded hunting rifle locked in a cupboard.” Id.

In the present case, Swafford’s .45 caliber pistol was strategically located so that it was quickly and easily available for use. The gun was found loaded, with its handle pointing up, within arm’s reach of the bed where Swafford was lying. It can hold a large number of rounds, and because it is semiautomatic, it can fire these rounds in rapid succession. Agent Frank Ledford of the Drug Enforcement Administration testified that such weapons play a role in drug distribution, as dealers carry them for protection and intimidation purposes. Because Swafford had been convicted of a prior felony, his possession of the gun was unlawful. Finally, the gun was discovered as the officers executed a search warrant looking for drugs, which they ultimately found. Thus, each of the Mackey factors points to the conclusion that this weapon was possessed in furtherance of the drug offenses.

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Bluebook (online)
385 F.3d 1026, 65 Fed. R. Serv. 567, 2004 U.S. App. LEXIS 20542, 2004 WL 2185980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-larry-swafford-ca6-2004.