United States v. Clinton Lemont Pettaway ( 2009 )

  •                                                                 [DO NOT PUBLISH]
                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                     No. 08-14142                      JUNE 30, 2009
                                 Non-Argument Calendar               THOMAS K. KAHN
                               ________________________                  CLERK
                           D. C. Docket No. 07-00182-CR-WS
                       Appeal from the United States District Court
                          for the Southern District of Alabama
                                      (June 30, 2009)
    Before BLACK, BARKETT and MARCUS, Circuit Judges.
          Clinton   Lemont Pettaway      appeals   his   sentence    resulting   from   an
    enhancement, pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), for brandishing a firearm
    that he used or carried during and in relation to, or possessed in furtherance of, a
    drug trafficking crime, here, possessing with intent to distribute cocaine base, in
    violation of 21 U.S.C. § 841(a)(1). On appeal, Pettaway argues that he brandished
    the firearm while attempting to buy cocaine base, not while selling cocaine, and,
    accordingly, did not brandish the firearm “in relation to” the underlying drug
    trafficking offense. After careful review, we affirm.
          The interpretation of a criminal statute is a question of law that we review de
    novo. United States v. Murrell, 
    368 F.3d 1283
    , 1285 (11th Cir. 2004).
          Section 924 provides:
          [A]ny person who, during and in relation to any . . . drug trafficking
          crime . . . , 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;
          (ii) if the firearm is brandished, be sentenced to a term of
          imprisonment of not less than 7 years;
          (iii) if the firearm is discharged, be sentenced to a term of
          imprisonment of not less than 10 years.
    18 U.S.C. § 924(c)(1)(A). Section 924(c)(1)(A) defines a single criminal offense
    for using or carrying a firearm during a crime of violence, while the “brandished”
    and “discharged” subsections are sentencing factors. See United States v. Gray,
    260 F.3d 1267
    , 1281-82 (11th Cir. 2001).
          To satisfy the possession-in-furtherance-of prong of the offense, the
    government must show that there was a nexus between the possession and the
    underlying offense, such that the defendant’s possession of the firearm “helped,
    furthered, promoted, or advanced the drug trafficking.” United States v. Timmons,
    283 F.3d 1246
    , 1252 (11th Cir. 2002). The nexus:
          can be established by the type of drug activity that is being conducted,
          accessibility of the firearm, the type of the weapon, whether the
          weapon is stolen, the status of the possession (legitimate or illegal),
          whether the gun is loaded, proximity to the drugs or drug profits, and
          the time and circumstances under which the gun is found.
    Id. at 1253 (quotation omitted).       The Supreme Court, in holding that the
    “discharge” sentencing-factor enhancement requires no separate proof of intent,
    recently rejected the construction of § 924(c)(1)(A) as applying the “in relation to”
    and “in furtherance” phrases to the sentencing-factor subsections. See Dean v.
    United States, 
    129 S. Ct. 1849
    , 1854, 1856 (2009).            Finally, a firearm is
    “brandished” if the defendant displays all or part of the firearm, or otherwise
    makes its presence known to another person, in order to intimidate that person. 18
    U.S.C. § 924(c)(4).
          As applied here, the Supreme Court’s recent construction of § 924(c)(1)(A)
    indicates that the government did not need to prove that Pettaway brandished the
    firearm “in relation to” or “in furtherance of” the drug trafficking crime. See Dean,
    129 S. Ct. at 1854. Rather, the government needed to establish only that Pettaway:
    (1) used or carried the firearm in relation to, or possessed the firearm in furtherance
    of, the drug trafficking offense, i.e., that he committed the elements of an offense
    under § 924(c)(1)(A); and (2) brandished the firearm at that time.
          The first part was established by Pettaway’s conviction on Count Two,
    which he does not challenge. Indeed, the trial testimony and PSI readily supported
    the inferences that the firearm, which Pettaway possessed illegally as a convicted
    felon, was on his person (as was the crack cocaine), was loaded, had an obliterated
    serial number, and was used to beat another man during a fight arising out of some
    type of drug deal. Accordingly, the nexus between the gun and his possession with
    intent to distribute crack cocaine was established by the accessibility of the gun, its
    proximity to the drugs, the likelihood that the weapon was stolen, the fact that he
    possessed it illegally, and the time and circumstances under which it was found.
    See Timmons, 283 F.3d at 1253.
          The government clearly satisfied the brandishing prong as well, by
    demonstrating that Pettaway displayed the firearm or made its presence known in
    order to intimidate another, as the evidence at trial plainly demonstrated that
    Pettaway pistol-whipped the other man during a fight. See 18 U.S.C. § 924(c)(4).
    In addition, the sentencing enhancement was proper because the brandishing was
    done in the course of the underlying offense -- possessing the firearm in
    furtherance of possessing with intent to distribute crack cocaine. Cf. Dean, 129 S.
    Ct. at 1854, 1856.     In short, the district court did not err in applying the