United States v. Williams

176 F.3d 301, 1999 WL 155947
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 23, 1999
DocketNos. 96-3546, 96-3558, 96-3704, 96-3928, 96-3998 and 96-4021
StatusPublished
Cited by67 cases

This text of 176 F.3d 301 (United States v. Williams) 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. Williams, 176 F.3d 301, 1999 WL 155947 (6th Cir. 1999).

Opinion

[306]*306OPINION

MOORE, Circuit Judge.

On March 23, 1995, a federal grand jury in Columbus, Ohio, returned a 185-count indictment against forty-one defendants. The six defendants-appellants named here all pleaded guilty to Count One of the indictment — conspiracy “to possess with the intent to distribute and to distribute cocaine and more than five grams of cocaine base, commonly referred to as crack” — and several of the defendants pleaded guilty to at least one additional count, detailed below. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Each defendant makes several claims of error regarding his plea and/or his sentencing. For the following reasons, however, we AFFIRM the district court.

I

The government alleges that the conspiracy began in 1989, when defendant Mays and other residents of the “Short North” area of Columbus, Ohio, began selling crack cocaine. Following a shooting of one of the group, Mays decided the original group needed to organize for its own protection, and dubbed the new group the “Short North Posse.” By 1993, local police had begun to investigate the group and undercover detectives had started to make buys of crack cocaine in the Short North area. There are instances of purchases from some of the defendants to this case in April, May, June, July, and September 1993. There were two more undercover buys in April 1994.

By May 1994, federal agents became involved in the investigation. The federal agents posed as West Side dealers and allegedly made purchases from the defendants named above in May, July, September, October, and November 1994. Two search warrants were executed in 1994, one in April and one in November, but neither deterred continued drug sales. Another undercover agent made a purchase from Giles on March 8, 1995. Two weeks later a majority of the group was indicted.

The federal grand jury sitting in Columbus, Ohio, returned a 185-count indictment against forty-one defendants on March 23, 1995, the lynchpin of the indictment being a conspiracy to possess with the intent to distribute cocaine base and the distribution of cocaine base. Each of these six defendants was charged with Count One, the conspiracy count, and at least three other counts. Each defendant herein entered a plea of guilty on various dates in 1995 in the weeks leading up to the trial for the remaining defendants: Reginald Crenshaw on August 23 to the conspiracy count; Paul Crump on September 11 to the conspiracy count and two counts of money laundering; Marshon Mays on September 15 'to the conspiracy count and distribution of crack; Maurice Williams on September 17 to the conspiracy count and one count of use of a firearm during a drug trafficking crime; Wesley Moore on September 26 to the conspiracy count and one count of use of a firearm during a drug trafficking crime; and Sherman Giles on September 26 to the conspiracy count and one count of use of a firearm during a drug trafficking crime.

The trial of eight alleged co-conspirators began on September 27, 1995, and lasted several weeks. In 1996, each of the defendants named here was sentenced: Maurice Williams on April 29 to 121 months on the conspiracy count (by this time the firearm count had been dropped pursuant to the Supreme Court decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)); Marshon Mays on April 30 to 109 months on the conspiracy count and distribution of crack; Reginald Crenshaw on' June 13 to 130 months on the conspiracy count; Sherman Giles on August 22 to 300 months on the conspiracy count (the Bailey count was dropped); Paul Crump on August 29 to 156 months on the conspiracy count and two counts of money laundering; and Wesley Moore on [307]*307September 3 to 186 months on the conspiracy count (the Bailey count was dropped). Each defendant filed a timely notice of appeal.

II

Each defendant makes two or three arguments about his individual plea agreement and/or sentence. We will address each defendant’s arguments in turn.

A

Defendant Maurice Williams first argues that the two-level enhancement under the guidelines for possession of a firearm pursuant to U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2Dl.l(b)(l) (1995) was erroneous, based substantially on the fact that his 18 U.S.C. § 924(c) gun count was dismissed in the wake of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). A district court’s finding that the defendant possessed the firearm during the drug crime is a factual finding subject to review for clear error. United States v. Elder, 90 F.3d 1110, 1133 (6th Cir.1996), cert. denied, 519 U.S. 1131, 117 S.Ct. 993, 136 L.Ed.2d 873 (1997).

Bailey clarified the term “use” in 18 U.S.C. § 924(c)(1) in the phrase “uses or carries.” The guideline enhancement, however, specifically refers only to “possession” (construed as actual or constructive possession). This court has held that acquittal under 18 U.S.C. § 924(c)(1) “does not necessarily preclude a sentencing enhancement for possession of a firearm under U.S.S.G. § 2Dl.l(b)” not only because of the different terminology but also in part because the burden of proof at sentencing is preponderance of the evidence and not beyond a reasonable doubt, as at trial. United States v. McCall, 85 F.3d 1193, 1198 (6th Cir.1996); see also Elder, 90 F.3d at 1133; United States v. Duncan, 918 F.2d 647, 652 (6th Cir.1990), cert. denied, 500 U.S. 933, 111 S.Ct. 2055, 114 L.Ed.2d 461 (1991). In other words, Bailey has little to say about the appropriateness of a guidelines enhancement for possession.

Application Note 3 to U.S.S.G. § 2D1.1 states in part:

The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.

U.S.S.G. § 2D1.1 commentary, applic. note 3; see also United States v. Moreno, 899 F.2d 465, 470 (6th Cir.1990), cert. denied, 503 U.S. 948, 112 S.Ct. 1504, 117 L.Ed.2d 643 (1992); United States v. Cochran, 14 F.3d 1128, 1132 (6th Cir.1994). In order for the enhancement to apply, the government must establish that (1) the defendant actually or constructively possessed the weapon, and (2) such possession was during the commission of the offense. United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.), cert. denied, 519 U.S. 858, 117 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Durbin v. Cargor
E.D. Michigan, 2025
United States v. Gross
E.D. Kentucky, 2023
United States v. Eric Powell
847 F.3d 760 (Sixth Circuit, 2017)
United States v. Clisby
636 F. App'x 243 (Sixth Circuit, 2016)
United States v. Donald Reynolds, Jr.
534 F. App'x 347 (Sixth Circuit, 2013)
United States v. Thomas Parenteau
529 F. App'x 532 (Sixth Circuit, 2013)
United States v. Sherry Washington
715 F.3d 975 (Sixth Circuit, 2013)
Claude Varney v. Raymond Booker
506 F. App'x 362 (Sixth Circuit, 2012)
Darron Howard v. United States
485 F. App'x 125 (Sixth Circuit, 2012)
United States v. Marrero
651 F.3d 453 (Sixth Circuit, 2011)
United States v. Rodney Davis
422 F. App'x 445 (Sixth Circuit, 2011)
Suzanne Conti v. American Axle & Manufacturing
326 F. App'x 900 (Sixth Circuit, 2009)
United States v. Smith
Sixth Circuit, 2007
Phillips v. United States
238 F. App'x 89 (Sixth Circuit, 2007)
United States v. Perry D. McCreary
475 F.3d 718 (Sixth Circuit, 2007)
United States v. Johnson
Sixth Circuit, 2006
United States v. Ricardo McKoy
452 F.3d 234 (Third Circuit, 2006)
United States v. Timothy Chambers
441 F.3d 438 (Sixth Circuit, 2006)
United States v. Cole
Sixth Circuit, 2005

Cite This Page — Counsel Stack

Bluebook (online)
176 F.3d 301, 1999 WL 155947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-williams-ca6-1999.