United States v. Murray

66 F. App'x 600
Court of Appeals for the Sixth Circuit·Decided June 2, 2003·No. No. 01-6501·Published·Cited by 4 cases

Opinion

CLAY, Circuit Judge.

Defendant, James W. Murray, a federal prisoner, appeals from the judgment of conviction and sentence entered by the district court on October 29, 2001, following Defendant’s guilty plea conviction to one count of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A); one count of conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846; and one count of carrying a firearm during or in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c), for which Defendant was sentenced to a term of 248 months’ imprisonment and five years of supervised release.

Represented by counsel, Defendant raises two issues for appellate review: the first issue involves a challenge to the district court’s refusal to set aside Defendant’s guilty plea; and the second issue involves a challenge to the district court’s application of a sentence enhancement for obstruction of justice. Proceeding pro se in a supplemental brief, Defendant raises the issue of whether there was sufficient evidence to support his conviction for carrying a firearm during or in relation to a drug trafficking crime.

For the reasons set forth below, we AFFIRM Defendant’s conviction and sentence.

BACKGROUND

Procedural History

Defendant was indicted on a three-count superseding indictment charging him with conspiracy to distribute in excess of fifty grams of cocaine base, carrying a firearm in connection with the conspiracy, and possessing with the intent to distribute in excess of fifty grams of cocaine base. Following Defendant’s arrest and indictment, he moved to suppress a quantity of cocaine recovered from a search of his person. A suppression hearing was held, after which the district court denied Defendant’s motion. A second motion to suppress was filed relating to a quantity of cash and a firearm which had been seized on a separate occasion; the district court denied this motion as well.

[602] A jury trial ensued on July 11, 2001. Following the testimony of three government witnesses, Defendant withdrew his previous plea of not guilty and entered a plea of guilty to all three charges set forth in the superseding indictment. Following a long colloquy with Defendant, the district court accepted Defendant’s plea.

A presentence investigation report (“PSR”) was prepared following the entry of Defendant’s guilty plea. In the PSR, the probation officer determined that Defendant’s sentencing range under the guidelines was 295 to 853 months’ imprisonment. This determination was made using a base offense level of 36 and applying a two-level enhancement for obstruction of justice under USSG § 3C1.1, for a total offense level of 38 and a criminal history category calculated at I.

On September 18, 2001, about two months after entering his guilty plea, Defendant filed a motion to set aside his guilty plea. The district court entered a memorandum and order denying without a hearing Defendant’s motion to set aside his guilty plea.

Defendant was sentenced on October 22, 2001. At the sentencing hearing, the district court accepted the PSR’s recommendation to enhance Defendant’s offense level by two levels for obstruction of justice under USSG § 3C1.1; however, the district court also determined, contrary to the PSR’s recommendation, that Defendant was entitled to a two-level reduction for acceptance of responsibility. The court then determined that Defendant’s restrictive guideline range was 248 to 295 months’ imprisonment and sentenced Defendant at the low end of the guideline range to a term of 248 months’ imprisonment. This timely appeal ensued.

Facts

The facts relating to Defendant’s indictment stem from incidents occurring on December 11, 2000, and April 3, 1999, along with information gathered during the investigation of those incidents.

A. December 11, 2000 Incident

Defendant caught a taxi-cab at about 7:15 p.m. on December 11, 2000, in Nashville, Tennessee, and asked the driver, who was accompanied by a friend, to take him to Murfreesboro, Tennessee. Because the fare to Murfreesboro would be large, consistent with company policy the cab driver requested that Defendant pay up-front. Defendant gave the driver $30.00 toward the approximately $60.00 fare.

As the driver entered the Murfreesboro area on Interstate 24, he asked Defendant which exit he should take, and Defendant advised the driver to continue driving along the interstate. At about this time, the cab driver noticed that Defendant was “fidgeting” with something in the waistband of his pants, which caused the driver to become concerned.

Upon reaching Manchester, Tennessee, the driver indicated that he needed to exit the interstate to refuel. The driver exited the interstate, drove to a nearby gasoline station, and went into the station while his friend, who had been riding in the passenger seat, remained behind to pump the gas. The driver advised the station clerk to call the police because he had a suspicious passenger in his cab. Officers from the Manchester Police Department arrived shortly thereafter and, after speaking with the driver, drew their weapons and asked Defendant to exist the cab. Defendant complied, and while conducting a pat down search of Defendant, the officers noticed what was described as a foreign object just beneath the waistband of Defendant’s pants. The officers asked Defendant to identify the object, and after twice refus[603] ing to answer, Defendant was handcuffed and put on the ground. The officers removed a brown paper bag with a rubber band around it from Defendant’s pants, and inside the bag was a clear bag containing what later tested to be 289.2 grams of cocaine base or “crack.”

B. April 3,1999 Incident

Defendant was stopped on April 3, 1999, by officers from the Franklin County, Tennessee, Sheriffs Office for improper display of vehicle registration. The officers ran his information through the dispatcher and learned that Defendant’s driver’s license had been suspended, and that he had outstanding warrants for his arrest in Franklin County. The officers conducted a search of Defendant’s vehicle and found a plastic bag containing what was believed to be cocaine hydrochloride, along with a loaded Rossi .357 caliber revolver. In the handbag of the vehicle’s passenger, Kim Turrentine, officers found “rolling papers” and a bag suspected to be marijuana stems. Defendant was in possession of $11,920 in U.S. currency.

C. Information Gathered as a Result of Investigating the Above Incidents

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United States v. Murray, 66 F. App'x 600 (6th Cir. 2003).

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