United States v. Cornwall ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5956
WINSTON GEORGE CORNWALL,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-95-25)
Submitted: September 17, 1996
Decided: October 24, 1996
Before MURNAGHAN, WILKINS, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Deborah C. Wyatt, WYATT & CARTER, Charlottesville, Virginia,
for Appellant. Robert P. Crouch, Jr., United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville, Virginia,
for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Winston George Cornwall pled guilty to one count of distribution
of crack cocaine, 21 U.S.C.A. § 841 (West 1981 & Supp. 1996). Pur-
suant to the terms of his plea agreement, the government dismissed
a second count which charged that Cornwall used or carried a firearm
during and in relation to a drug trafficking crime, 18 U.S.C.A.
§ 924(c) (West Supp. 1996). Cornwall appeals his 120-month manda-
tory minimum sentence, arguing that the penalties for crack offenses
are unconstitutional and contesting the enhancement he received for
possessing a firearm during the offense. United States Sentencing
Commission, Guidelines Manual § 2D1.1(b)(1) (Nov. 1995). In a
supplemental brief, Cornwall further argues that his case should be
remanded to determine whether he qualifies for a sentence below the
mandatory minimum under the safety valve provision. 18 U.S.C.A.
§ 3553(f) (West Supp. 1996); USSG § 5C1.2. We grant Cornwall's
motion to file the supplemental brief and affirm his sentence.
Cornwall and co-defendant Manuel Mendez were together in an
apartment when it was searched pursuant to a search warrant based
on reports of crack trafficking there. A shoebox containing 52.2
grams of crack was recovered from a bedroom. Cornwall was sitting
on a sofa in the living room; a handgun was concealed either directly
under him or under the sofa cushion.
As Cornwall acknowledges, this court has held already that the
statutory penalties for crack offenses do not violate equal protection,
United States v. D'Anjou, 16 F.3d 604, 612 (4th Cir.), cert. denied,
___ U.S. ___, 62 U.S.L.W. 3861 (U.S. June 27, 1994) (No. 93-9131),
and that the statute is not ambiguous. United States v. Fisher, 58 F.3d
96, 99-100 (4th Cir.), cert. denied, #6D 6D6D# U.S. ___, 64 U.S.L.W. 3270(U.S. Oct. 10, 1995) (No. 95-5923). While Cornwall urges reconsid-
eration of these decisions, a panel cannot overrule the decision of a
prior panel in this Circuit. Brubaker v. City of Richmond, 943 F.2d
1363, 1381-82 (4th Cir. 1991).
Because Cornwall was subject to the mandatory minimum ten-year
sentence, elimination of the recommended enhancement under USSG
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§ 2C1.1(b)(1) for possession of a firearm would not have reduced his
sentence.* In any case, Cornwall's argument was unsuccessful. The
district court found that Cornwall had possessed a firearm in connec-
tion with the drugs. We cannot say that this factual finding was
clearly erroneous because the guideline provides for the enhancement
if a firearm is present "unless it is clearly improbable that the weapon
was connected to the offense." USSG § 2D1.1, comment. (n.3). Corn-
wall presented no evidence to show that the firearm was unconnected
to the offense.
On appeal, Cornwall contends that there was insufficient evidence
that he possessed a firearm in connection with drug trafficking in light
of the Supreme Court's decision in Bailey v. United States, ___ U.S.
___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448/7492). We
disagree. Bailey held that a defendant must actively employ a firearm
before he may be convicted of "use" of a firearm during or in relation
to a drug trafficking offense under 18 U.S.C.A.§ 924(c) (West Supp.
1996). The Court specifically noted that the guideline provides an
enhancement for possession of a weapon during a drug trafficking
offense. See Bailey, 64 U.S.L.W. at 4043. Bailey did not interpret the
meaning of the phrase "in connection with." See United States v.
Castillo, 77 F.3d 1480, 1499 n.34 (5th Cir. 1996), petition for cert.
filed, ___ U.S. ___ (U.S. July 26, 1996) (No. 96-5357); United States
v. Pollard, 72 F.3d 66, 68-69 (7th Cir. 1995); see also United States
v. Gary, 74 F.3d 304, 317 n.11 (1st Cir.) (Bailey inapplicable to
USSG § 4B1.4(b)(3)(A) which provides enhancement for use or pos-
session of firearm in connection with specified offenses because
meaning of "in connection with" remains unchanged), cert. denied,
___ U.S. ___, 64 U.S.L.W. 3855 (U.S. June 24, 1996) (No. 95-9074).
Finally, Cornwall maintains in his supplemental brief that, because
Bailey changed the interpretation of the phrase "in connection with
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*Cornwall's offense level with the enhancement was 31 and he was in
criminal history category I. His guideline range of 108-135 months
became 120-135 months because, when the guideline range is less than
the statutorily required minimum sentence, the statutory minimum
becomes the guideline sentence. USSG § 5G1.2(b). Without the enhance-
ment for possession of the firearm, Cornwall's guideline range of 87-108
months would again be raised to 120 months.
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the offense" to make mere proximity of a firearm to drugs inadequate
to show a connection, he now meets all five criteria for a sentence
under USSG § 5C1.2, including the requirement that a defendant not
"possess a firearm . . . in connection with the offense." Again we note
that Bailey did not reinterpret the phrase"in connection with." There-
fore, Cornwall's argument is without merit. Mere possession of a fire-
arm in connection with the offense of conviction makes a defendant
ineligible for a sentence below the mandatory minimum. USSG
§ 5C1.2(2). Cornwall pled guilty to crack distribution and his sen-
tence was properly enhanced for possession of a firearm. He was not
eligible for a sentence below the mandatory minimum.
We therefore grant Cornwall's motion to file a supplemental brief
but affirm his sentence. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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