05-1424-cr United States v. Wallace 1 2 UNITED STATES COURT OF APPEALS 3 4 FOR THE SECOND CIRCUIT 5 6 August Term, 2007 7 8 9 (Argued: April 22, 2008 Decided: July 8, 2008) 10 11 Docket No. 05-1424-cr 12 13 - - - - - - - - - - - - - - - - - - - -x 14 15 UNITED STATES OF AMERICA, 16 17 Appellee, 18 19 - v.- 20 21 RICKY P. WALLACE, 22 23 Defendant-Appellant. 24 25 - - - - - - - - - - - - - - - - - - - -x
26 Before: JACOBS, Chief Judge, KEARSE and KATZMANN, 27 Circuit Judges. 28 29 Appeal from a judgment of conviction entered in the
30 United States District Court for the Western District of New
31 York (Siragusa, J.). The defendant argues that sharing
32 narcotics does not constitute drug distribution within the
33 meaning of 21 U.S.C. § 841(a), and that his conviction
34 therefore rests on insufficient evidence. We affirm the
35 conviction; however, the case is remanded in accordance with
36 United States v. Regalado, 518 F.3d 143 (2d Cir. 2008). 1 BRUCE R. BRYAN, Syracuse, NY, 2 for Appellant. 3 4 BRETT A. HARVEY, Assistant 5 United States Attorney (Terrance 6 P. Flynn, United States Attorney 7 for the Western District of New 8 York, on the brief), United 9 States Attorney’s Office for the 10 Western District of New York, 11 Rochester, NY, for Appellee. 12 13 DENNIS JACOBS, Chief Judge: 14 15 Ricky P. Wallace appeals the judgment of conviction
16 entered against him on drug and gun offenses following a
17 jury trial in the United States District Court for the
18 Western District of New York (Siragusa, J.). Wallace argues
19 chiefly that his sharing of narcotics on a social basis does
20 not constitute drug distribution for purposes of 21 U.S.C. §
21 841(a). We affirm Wallace’s conviction for the reasons
22 stated in this opinion and in a separate summary order
23 issued today; but we remand to the district court for
24 reconsideration of Wallace’s sentence pursuant to United
25 States v. Regalado, 518 F.3d 143 (2d Cir. 2008).
27 BACKGROUND
28 In May, 2003, a confidential informant made two
29 controlled purchases of cocaine base at an apartment in
2 1 Rochester, New York. Each time, the seller took the cash,
2 went into a bedroom, and came back with one or two small
3 ziplock bags containing cocaine base. A week later,
4 Rochester police executed a search warrant at the apartment,
5 in which Wallace lived with his father. During the search,
6 Wallace advised the officers that he lived in the apartment,
7 that he was unemployed, and that he had a shotgun in his
8 bedroom. From his bedroom, the police recovered ziplock
9 bags containing a total of 1.5 grams of cocaine base, a
10 quantity of new unused ziplock bags, 91.22 grams of
11 marijuana, an AK-47 semi-automatic assault weapon and
12 ammunition compatible with it, and $460 in cash.
13 After his arrest, Wallace waived his Miranda rights and
14 made several statements to the police: that he had cocaine
15 base and marijuana to use and share with his friends, but
16 was not a drug dealer; that he used the ziplock bags to
17 store the drugs for his own use; that he kept the AK-47 to
18 protect himself and his bed-ridden father; and that he knew
19 the weapon was illegal, but made sure to keep it unloaded.
20 These statements were admitted at trial.1
1 No evidence of the confidential informant’s controlled purchases was admitted at trial. 3 1 Wallace testified to the following at trial. He was
2 unemployed; however, his father received disability and
3 Social Security checks, which Wallace (who had power of
4 attorney) would cash to pay the monthly $400 rent and
5 utilities for the apartment. The narcotics and ziplock bags
6 belonged to him, while the gun belonged to his father. He
7 purchased $50 worth of cocaine base every month or so. He
8 had purchased about $600 worth of marijuana two or three
9 years earlier, the remains of which were seized by the
10 police. He had the drugs for his personal use and, on
11 occasion, to share with friends. He purchased ziplock bags
12 in bulk. It was his practice to break the cocaine base into
13 smaller pieces and place them in the ziplock bags so that
14 his visitors would not know how much he had and try to “use
15 it all up.” Tr. 433. Wallace’s girlfriend and his father
16 got the AK-47 from “a boss” and brought it to the apartment.
17 Tr. 437. To prevent it from hurting anyone, he “put it up
18 for safety,” keeping it under his mattress and putting the
19 ammunition in an empty baby wipes container. Id.
20 On April 9, 2004, the jury convicted Wallace of
21 possession of cocaine base with intent to distribute, in
22 violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C), possession
4 1 of a firearm as a convicted felon, in violation of 18 U.S.C.
2 §§ 922(g)(1) and 924(a)(2), and possession of marijuana, in
3 violation of 21 U.S.C. § 844(a).
5 DISCUSSION
6 Wallace argues that the evidence was insufficient to
7 support his conviction for possession with the intent to
8 distribute cocaine because the government failed to prove
9 that he held (or shared) drugs with a commercial purpose. A
10 defendant challenging the sufficiency of the evidence “bears
11 a heavy burden.” United States v. Griffith, 284 F.3d 338,
12 348 (2d Cir. 2002). “Not only must the evidence be viewed
13 in the light most favorable to the government and all
14 permissible inferences drawn in its favor, but if the
15 evidence, thus construed, suffices to convince any rational
16 trier of fact of the defendant’s guilt beyond a reasonable
17 doubt,” the conviction must stand. United States v.
18 Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995) (internal
19 citations omitted).
20 On the same legal theory, Wallace challenges the
21 district court’s supplemental jury instruction that
22 “[s]haring drugs with another constitutes distribution.”
5 1 “[W]e will not find reversible error unless a charge either
2 failed to inform the jury adequately of the law or misled
3 the jury as to the correct legal rule.” United States v.
4 Alfisi, 308 F.3d 144, 148 (2d Cir. 2002).
6 I
7 This Circuit has not yet decided whether the social
8 sharing of a small quantity of drugs, without consideration,
9 constitutes the distribution of drugs within the meaning of
10 21 U.S.C. § 841(a). See United States v. Williams, 247 F.3d
11 353, 358 n.6 (2d Cir. 2001) (“Drugs intended for personal
12 use are not for distribution. It may be, however, that
13 drugs held to be shared gratis with family and friends,
14 though not for personal use, are also not for
15 ‘distribution,’ pursuant to 21 U.S.C. § 841. On this point,
16 we take no position whatsoever.”).
17 Several of our sister circuits, however, have concluded
18 that distribution within the meaning of 21 U.S.C. § 841(a)
19 can take place without a sale. See, e.g., United States v.
20 Cormier, 468 F.3d 63, 70 n.3 (1st Cir. 2006) (“It is well
21 accepted that drugs may be distributed by giving them away
22 for free; 21 U.S.C. § 841(a)(1) imposes no requirement that
6 1 a sale take place.”); United States v. Fregoso, 60 F.3d
2 1314, 1325 (8th Cir. 1995) (“No ‘sale’ is required to
3 violate the statute.”); United States v. Vincent, 20 F.3d
4 229, 233 (6th Cir. 1994) (“In order to establish the knowing
5 or intentional distribution of a controlled substance, the
6 government needed only to show that defendant knowingly or
7 intentionally delivered a controlled substance. It was
8 irrelevant for the government to also show that defendant
9 was paid for the delivery.” (internal citation omitted));
10 United States v. Washington, 41 F.3d 917, 919 (4th Cir.
11 1994) (holding that the defendant’s “intent to share the
12 cocaine with others is sufficient for a court to find that
13 he possessed drugs with intent to distribute”); United
14 States Ramirez, 608 F.2d 1261, 1264 (9th Cir. 1979)
15 (“[T]here is direct evidence that appellant engaged in the
16 ‘distribution’ of cocaine; although apparently no commercial
17 scheme is involved, his sharing the cocaine . . .
18 constitutes ‘distribution’ for purposes of 21 U.S.C. §
19 841(a)(1).”).
20 We now join this sound majority and hold that the
21 sharing of drugs, without a sale, constitutes distribution
22 for purposes of 21 U.S.C. § 841(a), which makes it illegal
7 1 to “possess with intent to manufacture, distribute, or
2 dispense, a controlled substance.” 21 U.S.C. § 841(a)(1).
3 The word “distribute” means “to deliver,” id. § 802(11); and
4 “deliver” means “the actual, constructive, or attempted
5 transfer of a controlled substance,” id. § 802(8). These
6 definitions, which take no account of consideration, bespeak
7 a congressional intent “to proscribe a range of conduct
8 broader than the mere sale of narcotics.” Washington, 41
9 F.3d at 919.
10 This reading respects the line between “possession” and
11 “distribution.” Simple possession, in violation of 21
12 U.S.C. § 844, refers to “possession for one’s own use,”
13 United States v. Dovalina, 525 F.2d 952, 958 (5th Cir. 1976)
14 (internal quotation marks and citation omitted), whereas
15 distribution, in violation of 21 U.S.C. § 841(a), “can only
16 be ultimately accomplished by ‘delivery’ to a distributee,”
17 United States v. Binkley, 903 F.2d 1130, 1138 (7th Cir.
18 1990). Thus a defendant who holds narcotics solely for
19 personal use is in possession; one who delivers or transfers
20 narcotics to another--for consideration or gratis--is
21 distributing.
22 Wallace testified that he purchased cocaine base and
8 1 marijuana for his own personal use, and also shared the
2 drugs with friends. See Tr. 432 (“Most of the time I used
3 it by myself . . . but if a lady friend come by we use it
4 together, you know, have some and relax . . . .”). This
5 testimony is direct evidence that Wallace engaged in the
6 distribution of cocaine base.
7 Accordingly, we reject Wallace’s sufficiency challenge.
8 We likewise reject his challenge to the supplemental jury
9 charge that “[s]haring drugs with another constitutes
10 distribution”--the charge is sound.
12 II
13 Wallace relies chiefly on Lopez v. Gonzales, 549 U.S.
14 47, 127 S. Ct. 625 (2006), to support the idea that proof of
15 commercial dealing is required for a conviction under 21
16 U.S.C. § 841(a). Lopez addressed a provision of the
17 Immigration and Nationality Act (“INA”) providing for the
18 deportation of “aggravated felon[s].” Included in the
19 definition of “aggravated felony” is the “‘illicit
20 trafficking in a controlled substance . . . including a drug
21 trafficking crime.’” Lopez, 127 S. Ct. at 627-28 (quoting 8
22 U.S.C. § 1101(a)(43)(B)). The INA defines a “drug
9 1 trafficking crime” as “‘any felony punishable under the
2 Controlled Substances Act.’” Lopez, 127 S. Ct. at 628
3 (quoting 18 U.S.C. § 924(c)(2)). The petitioner’s offense
4 was helping another possess narcotics, which is “punishable
5 under the Controlled Substances Act” as a misdemeanor, but
6 as a felony under state law. See id. at 629. The question
7 presented was whether such an offense was a “drug
8 trafficking crime.”
9 The government in Lopez argued that the INA “requires
10 only that the offense be punishable, not that it be
11 punishable as a federal felony,” a position that the Court
12 considered “incoheren[t] with any commonsense conception of
13 ‘illicit trafficking.’” Lopez, 127 S. Ct. at 629. The
14 Court looked to the “everyday understanding of
15 ‘trafficking,’” noted that “[c]ommerce . . . was no part” of
16 the offense (helping another possess narcotics), and decided
17 that that militated against the government’s interpretation
18 of the INA: to read the INA as the government did “would
19 often turn simple possession into trafficking, just what the
20 English language tells us not to expect.” Id. at 630.
21 Lopez is distinguishable on several levels. First,
22 Lopez consulted the “everyday understanding of
10 1 ‘trafficking’” because there, “the statutes in play do not
2 define the term, and so remit us to regular usage to see
3 what Congress probably meant.” Id. But Title 21 does
4 define terms; and the definitions (as discussed supra)
5 describe distribution without regard to sale or traffic.
6 Second, Lopez interpreted another statute, the aggravated
7 felony provision of the INA; that statute uses the phrase
8 “illicit trafficking”; the word “traffic” means commerce and
9 trade; and no form of that word is used in the statute that
10 proscribes Wallace’s offense. See 21 U.S.C. § 841(a)
11 (making it illegal to “possess with intent to manufacture,
12 distribute, or dispense, a controlled substance”).
13 Wallace further contends that United States v.
14 Swiderski, 548 F.2d 445 (2d Cir. 1977), indicates that a
15 felony drug offense must be commercial in nature. Swiderski
16 held that “where two individuals simultaneously and jointly
17 acquire possession of a drug for their own use, intending
18 only to share it together, their only crime is personal drug
19 abuse--simple joint possession, without any intent to
20 distribute the drug further.” Id. at 450. Since neither
21 one of the joint possessors “serves as a link in the chain
22 of distribution,” we concluded that “simple joint possession
11 1 does not pose any of the evils which Congress sought to
2 deter and punish through the more severe penalties provided
3 for those engaged in a ‘continuing criminal enterprise’ or
4 in drug distribution.” Id.
5 Wallace never testified that he shared his drugs with
6 anyone as “joint possessors” within the meaning of
7 Swiderski. The rule announced in Swiderski is expressly
8 limited “to the passing of a drug between joint possessors
9 who simultaneously acquired possession at the outset for
10 their own use.” Id. at 450-51. We advised that the rule
11 would not apply where the evidence showed that the defendant
12 “handed over a small amount of marijuana . . . for smoking
13 purposes” to another individual without proof that the other
14 individual “had jointly and simultaneously acquired
15 possession of the drug at the outset.” Id. at 450 (citing
16 United States v. Branch, 483 F.2d 955 (9th Cir. 1973)).
17 Rather, since “sole possession” in such a case would rest
18 with the defendant, “his transfer of the drug to a third
19 person, friend or not,” would violate the prohibition on
20 drug distribution. Swiderski, 548 F.2d at 450. Wallace had
21 “sole possession” of the drugs, even if he “handed over a
22 small amount” to his occasional visitor. Id.
12 1 Nor can Wallace find refuge in cases in which
2 convictions under 21 U.S.C. § 841(a) were reversed for want
3 of evidence that the possession of narcotics was with the
4 intent to distribute. In United States v. Boissoneault, 926
5 F.2d 230 (2d Cir. 1991), we reversed a conviction on
6 sufficiency grounds where “the quantity of cocaine at issue,
7 5.31 grams (.19 oz.), was not inconsistent with personal
8 use.” Id. at 234. But in that case, and other similar
9 cases, it mattered that defendant had none of the tools of
10 the trade. Thus there was no proof that Boissoneault had
11 “scales, beepers, and other devices,” or the “materials
12 needed to process cocaine or to package it in druggist
13 folds,” or “a gun or other weapon, which would have helped
14 sustain an inference that he was engaged in the dangerous
15 business of drug trafficking.” Id.
16 This is not the Boissoneault case. When the Rochester
17 police searched Wallace’s bedroom, they found (among other
18 things) 1.5 grams of cocaine base parceled out in more than
19 a dozen small ziplock bags; a dinner plate holding numerous
20 new and unused small ziplock bags; a ziplock bag containing
21 numerous new and unused small ziplock bags bearing green
22 dollar signs; a dresser drawer full of empty and unused
13 1 glassine ziplock bags; and a semi-automatic assault weapon
2 and ammunition for it. Viewed in the light most favorable
3 to the government, this evidence supports the inference that
4 Wallace had the intent to distribute narcotics. See United
5 States v. Gamble, 388 F.3d 74, 77 (2d Cir. 2004) (affirming
6 finding of intent to distribute where “[l]aw enforcement
7 officers found 1.7 grams of cocaine base (with a purity of
8 79 percent), packaged in twenty-six zip-lock bags, . . .
9 along with hundreds of empty zip-lock bags,” and evidence
10 showed “an unusually high volume of pedestrian traffic at
11 [the defendant’s] apartment in the weeks preceding the
12 search”); United States v. Martinez, 54 F.3d 1040, 1043 (2d
13 Cir. 1995) (“[P]articularly in light of [the defendant’s]
14 admission that he was not a user, his physical possession of
15 a scale, cut, and a loaded firearm supported the jury’s
16 rejection of his personal-use defense.”); United States v.
17 White, 969 F.2d 681, 684 (8th Cir. 1992) (“Because a gun is
18 generally considered a tool of the trade for drug dealers,
19 [it] is also evidence of intent to distribute.” (internal
20 citation and punctuation omitted)); United States v.
21 Garrett, 903 F.2d 1105, 1113 (7th Cir. 1990) (“Intent to
22 distribute has been inferred in cases where small amounts of
14 1 drugs have been packaged in a manner consistent with
2 distribution or have been possessed in conjunction with
3 other indicia of drug distribution, such as a weapon.”
4 (footnote omitted)).
5 Also seized was $460 in cash. Wallace testified that
6 he was unemployed, and that he relied on his father’s
7 disability checks to pay the $400 monthly rent, the utility
8 bills and medical expenses. These facts made it permissible
9 to infer that Wallace lacked any legitimate income to
10 purchase the cocaine base for his personal use and for
11 sharing with friends.
13 III
14 In a letter to the panel pursuant to Federal Rule of
15 Appellate Procedure 28(j), Wallace argues that remand to the
16 district court is warranted in light of the Supreme Court’s
17 decision in Kimbrough v. United States, 128 S. Ct. 558
18 (2007). We agree.
19 Because Wallace did not challenge this aspect of
20 sentencing below, we review the district court’s decision
21 for plain error. United States v. Regalado, 518 F.3d 143,
22 147 (2d Cir. 2008). We cannot be certain from the record
15 1 whether the district court would have imposed a lower
2 sentence “had it been aware that ‘the cocaine Guidelines,
3 like all other Guidelines, are advisory only,’ and that it
4 therefore had discretion to deviate from the Guidelines
5 where necessary to serve the objectives of sentencing under
6 18 U.S.C. § 3553(a).” Id. at 145 (quoting Kimbrough, 128 S.
7 Ct. at 564, 575). The proper course is therefore to remand
8 to give the district court “an opportunity to indicate
9 whether it would have imposed a non-Guidelines sentence
10 knowing that it had discretion to deviate from the
11 Guidelines to serve those objectives.” Regalado, 518 F.3d
12 at 149.
14 CONCLUSION
15 For the reasons stated in this opinion (and the
16 accompanying summary order), the judgment is AFFIRMED as to
17 the conviction and the case is REMANDED to the district
18 court for consideration of resentencing.