United States v. Quincy Fuqua , 636 F. App'x 303 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0046n.06
Nos. 14-5099 and 15-5515
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 25, 2016
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
QUINCY MAURICE FUQUA, ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
)
Before: GRIFFIN and KETHLEDGE, Circuit Judges; and CLELAND, District Judge.*
KETHLEDGE, Circuit Judge. A federal jury convicted Quincy Maurice Fuqua of
possession with intent to distribute marijuana, possession of a firearm in furtherance of a drug-
trafficking crime, and being a felon in possession of a firearm. See 21 U.S.C. § 841(a)(1);
18 U.S.C. §§ 924(c), 922(g)(1). On appeal, he argues that the district court committed numerous
errors regarding his trial and sentence. We reject his arguments and affirm.
I.
In February 2010, the Nashville police searched the trash behind Fuqua’s house. They
found trace amounts of marijuana in numerous containers within the same trash bag, seven
smoked marijuana blunts, and a gun holster. They also found a receipt from the week before,
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District
of Michigan, sitting by designation.
Nos. 14-5099 and 15-5515, United States v. Fuqua
mail with Fuqua’s address on it, and paperwork with Fuqua’s Social Security Number on it. The
next day, Detective Matthew Grindstaff presented a magistrate judge with an affidavit detailing
the items found in the trash, explaining that the police had information that Fuqua’s phone
number was being used to deal drugs and that illegal drugs were being sold, packaged, or
consumed at Fuqua’s address. The affidavit added that the police had surveilled Fuqua’s house
and seen two cars parked out front, both of which were registered to Fuqua. The magistrate
judge issued a warrant authorizing the police to search Fuqua’s house for evidence of drug use
and distribution.
Around midnight that same night, a group of officers went to Fuqua’s house to execute
the search warrant. According to the officers’ testimony, an officer turned on the emergency
blue lights on a patrol car outside the house and used its PA system repeatedly to announce
“Metro Police, search warrant, do not resist.” Meanwhile, Detective Grindstaff knocked three
times on Fuqua’s door, each time announcing “Metro Police.” When no one promptly answered,
Detective Atif Williams broke down the door. Grindstaff stepped forward to enter and continued
to announce himself. While in the doorway, he heard a gunshot and saw one person on the
couch by the door with his arms up. Grindstaff moved toward the kitchen, where he saw Fuqua
and Victor Owens each holding guns. Fuqua and Owens ducked behind a wall; then someone
reached around and shot at Grindstaff. Grindstaff ducked and fired back, hitting Fuqua in the
stomach. Grindstaff and another officer secured Owens and searched Fuqua. They found around
$1,640 in cash in Fuqua’s pockets. The police called paramedics, who took Fuqua to a hospital.
When the officers searched Fuqua’s home, they found 19.5 grams of marijuana and two
ecstasy tablets inside a piece of a black plastic bag on the kitchen counter, a set of digital scales,
4.3 grams of marijuana in a clear plastic bag in a drawer in the kitchen, 4.0 grams of marijuana in
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Nos. 14-5099 and 15-5515, United States v. Fuqua
a plastic bag on the stereo in the living room, another 2.2 grams of marijuana in a newspaper
under the couch in the living room, a poster depicting different kinds of marijuana in the
basement, and three guns—including a .44 caliber revolver that Fuqua admitted was his. Fuqua
told police that he had fired the gun at the ceiling. But a crime-scene investigator testified that
there was no evidence of a bullet in the ceiling.
A federal grand jury later indicted Fuqua for possessing marijuana with intent to
distribute, possessing and discharging a firearm in furtherance of a drug-trafficking offense, and
being a felon in possession of a firearm. See 21 U.S.C. § 841(a)(1); 18 U.S.C. §§ 924(c),
922(g)(1).
Fuqua filed pretrial motions to suppress the evidence obtained pursuant to the search
warrant. He also moved to try the § 841(a) charge separately from the other charges. The
district court denied both motions.
The jury convicted Fuqua on all counts. After his conviction, Fuqua filed a motion for
acquittal notwithstanding the verdict, but the district court denied his motion.
Over several objections, the court sentenced Fuqua to 248 months in prison. Fuqua later
moved for a new trial or alternatively a new sentencing hearing. In support, Fuqua claimed to
have new evidence that Owens rather than Fuqua fired the second shot, which was the shot fired
at Grindstaff as he walked toward the kitchen. The district court denied his motion. Fuqua
appealed.
II.
Fuqua challenges his conviction and his sentence on numerous grounds. We take each in
turn.
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A.
Fuqua argues that the police lacked probable cause to search his house. Probable cause
means a “fair probability that contraband or evidence of a crime will be found in a particular
place.” United States v. Thomas, 605 F.3d 300, 307 (6th Cir. 2010) (internal quotation marks
omitted).
Here, Grindstaff’s affidavit recited that several containers in Fuqua’s trash had been in
contact with marijuana, that the trash had been put out within the previous week, and that the
trash belonged to Fuqua. That information created a fair probability that the police would find
evidence of a crime in Fuqua’s house, and thus the district court properly denied his motion to
suppress. See United States v. Lawrence, 308 F.3d 623, 626-27 (6th Cir. 2002).
B.
Fuqua argues that the district court should have tried his § 841(a) charge (for possession
with intent to distribute marijuana) separately from the other two charges. “[W]e review a
refusal to bifurcate for [an] abuse of discretion.” United States v. Moore, 376 F.3d 570, 573 (6th
Cir. 2004).
Several facts support the district court’s denial of Fuqua’s motion: the court gave a
limiting instruction to the jury about Fuqua’s prior felony conviction; the parties stipulated to
Fuqua’s prior conviction so that its details were not revealed to the jury; and the court instructed
the jury to consider each charge separately. Moreover, the guns were relevant to the question
whether Fuqua was distributing drugs, so proof that he fired his gun would likely have been
presented in support of the distribution charge in any event. The district court’s denial of
Fuqua’s motion was not an abuse of discretion.
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Nos. 14-5099 and 15-5515, United States v. Fuqua
C.
Fuqua argues that Detective Grindstaff should not have been allowed to testify as both a
fact and opinion witness. On the second day of Fuqua’s trial, Grindstaff testified as a fact
witness about the searches of the house and trash. The next day, over Fuqua’s objection,
Grindstaff testified again—this time as an opinion witness—about whether the evidence found in
Fuqua’s trash and house was consistent with street-level drug trafficking.
Fuqua argues that, as the government’s “victim,” Grindstaff’s opinion testimony was
necessarily unreliable. We review a district court’s admission of expert testimony for an abuse
of discretion. United States v. Collins, 799 F.3d 554, 574 (6th Cir. 2015). We have allowed “an
officer’s dual testimony as a fact and expert witness when [the court gives] an adequate
cautionary jury instruction” and there is a clear delineation between the officer’s fact and opinion
testimony. United States v. Lopez-Medina, 461 F.3d 724, 743-44 (6th Cir. 2006).
Here the district court properly instructed the jury about the difference between fact and
opinion testimony before Grindstaff’s opinion testimony and at the conclusion of trial. And
Fuqua’s attorney had the opportunity to challenge Grindstaff’s credibility and possible biases on
cross-examination. Meanwhile, Fuqua cites no precedent to show that allowing a “victim” to
testify as an expert is in any way improper. Fuqua’s criticisms are grounds for cross-
examination, not for excluding Grindstaff’s opinion testimony. The district court did not abuse
its discretion.
Fuqua separately argues that Grindstaff was not qualified to offer opinion testimony
regarding the practices of drug dealers. Opinion witnesses “must be qualified by knowledge,
skill, experience, training, or education.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529
(6th Cir. 2008) (internal quotation marks omitted); Fed. R. Evid. 702. We routinely allow police
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officers to testify that evidence points to drug distribution rather than to personal use. United
States v. Swafford, 385 F.3d 1026, 1030 (6th Cir. 2004). That is the kind of testimony that
Grindstaff offered here. Moreover, when Grindstaff testified, he had been a police officer for six
years. Two of those years were with the “North Crime Suppression Unit,” where he
“investigate[d] street-level narcotics dealers,” and at least one more year was with the
“Specialized Investigations Division,” where he investigated “people . . . trafficking drugs into
the Nashville area.” The district court did not abuse its discretion when it determined that
Grindstaff could assist the jury in determining whether the evidence found at Fuqua’s house was
consistent with drug trafficking.
D.
Fuqua argues that the district court improperly admitted the government’s Exhibit 8E.
That exhibit was a piece of a black plastic bag with multiple ziploc bags inside it. In slight
contrast, at Fuqua’s home, the piece of black plastic contained multiple pieces of torn and tied
plastic with marijuana inside each of them. Agents at the crime lab replaced those torn pieces of
plastic with the ziploc bags after they analyzed the marijuana inside.
Fuqua failed to object to introduction of this evidence at trial, so we review only for plain
error. See United States v. Deitz, 577 F.3d 672, 688 (6th Cir. 2009). We “may correct the
claimed mistake only if there is (1) an error (2) that is plain, (3) that affected the party’s
substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of
judicial proceedings.” United States v. Henry, 797 F.3d 371, 374 (6th Cir. 2015) (internal
quotation marks omitted).
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Nos. 14-5099 and 15-5515, United States v. Fuqua
The ziploc bags did not have a significant effect on Fuqua’s trial. As noted above, so far
as the record shows here, agents at the crime lab merely replaced the torn and tied pieces of
plastic inside the black bag with ziploc bags that more securely held the same contents. That the
agents swapped torn and tied “bags” for ziploc bags did not affect Fuqua’s substantial rights.
E.
Fuqua argues that the government failed to prove that he intended to distribute the
marijuana found in his home. We view the evidence in the light most favorable to the jury’s
verdict, and ask only whether any rational jury “could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Castano, 543 F.3d 826, 837 (6th Cir. 2008).
Here, in Fuqua’s house, the police found about 30 grams of marijuana in several different
containers and locations, a digital scale next to one of the bags of marijuana, a poster showing
different types of marijuana, and three guns. The government also presented evidence that
Fuqua had $1,640 in cash in his pocket at the time of the search warrant. Detective Grindstaff
testified that the evidence collected at Fuqua’s house was consistent with street-level drug
trafficking. This evidence and testimony was sufficient to support Fuqua’s conviction under
§ 841(a).
Relatedly, Fuqua argues that, as a matter of law, possession of 30 grams of marijuana
without proof of “remuneration” is not a drug-trafficking crime as required for conviction of
discharge of a firearm in furtherance of a drug-trafficking crime. See 21 U.S.C. § 841(b)(4).
The short answer to this argument is that the $1,640 in cash in Fuqua’s pocket was proof enough
of remuneration. We reject Fuqua’s argument.
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Nos. 14-5099 and 15-5515, United States v. Fuqua
F.
Fuqua argues that the district court erred by increasing the mandatory maximum of his
§ 841(a)(1) sentence based on a prior felony-drug conviction. Section 841(b)(1)(D) provides that
a defendant who is convicted of possession with intent to distribute less than 50 kilograms of
marijuana may be sentenced to a maximum of five years’ imprisonment if he does not have a
prior felony-drug conviction, and ten years if he has such a conviction. 21 U.S.C.
§ 841(b)(1)(D). Meanwhile, 21 U.S.C. § 851 provides that
[n]o person who stands convicted of an offense under this part
shall be sentenced to increased punishment by reason of one or
more prior convictions, unless before trial . . . the United States
attorney files an information with the court (and serves a copy of
such information on the person or counsel for the person) stating in
writing the previous convictions to be relied upon.
Here, the government filed a proper “information” detailing Fuqua’s prior felony drug
conviction in the State of Tennessee. Based on that prior conviction the district court held that
Fuqua’s maximum sentence for his possession-with-intent-to-distribute conviction was ten years.
Fuqua contends that the district court’s use of his prior conviction to increase his statutory-
maximum sentence violated his Sixth Amendment Rights. We review “a constitutional
challenge to a defendant’s sentence de novo wherever the defendant preserves the claim for
appellate review.” United States v. Churn, 800 F.3d 768, 780 (6th Cir. 2015).
Fuqua’s argument is meritless. In Almendarez-Torres v. United States, 523 U.S. 224,
228, 247 (1998), the Supreme Court held that the Sixth Amendment permits judges rather than a
jury to find the fact of a defendant’s prior conviction. That holding binds us here. Hence this
argument is meritless.
Fuqua also suggests that the government’s use of § 851 in this case was vindictive. The
district court rejected that argument, explaining as follows:
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Nos. 14-5099 and 15-5515, United States v. Fuqua
The Court finds that there is not evidence of either abuse of
discretion in filing the 851 enhancement or a vindictive motive.
The U.S. Government simply followed the process for filing an
enhancement before trial which is done in many trials of this sort,
and there was nothing irregular about that process that’s in the
record.
We have no basis to set aside that finding here. Fuqua’s argument is meritless.
G.
Fuqua argues that the district court erred by enhancing his sentence under U.S.S.G.
§ 3A1.2(c)(1). That section increases a defendant’s offense guideline by six levels if, “in a
manner creating a substantial risk of serious bodily injury, the defendant . . . knowing or having
reasonable cause to believe that a person was a law enforcement officer, assaulted such officer
during the course of the offense[.]” U.S.S.G. § 3A1.2(c)(1). “We review de novo a district
court’s application of the Sentencing Guidelines when that application involves mixed questions
of law and fact and we review for clear error a district court’s findings of fact in connection with
sentencing.” United States v. Stafford, 721 F.3d 380, 400 (6th Cir. 2013).
Fuqua contends that he did not know that he was shooting at a police officer when he
fired his weapon. Per the testimony at trial, however, the police knocked and announced
themselves three times before they entered; the officers activated blue emergency lights on a
vehicle outside the home; Grindstaff heard people running inside the home; the officers
announced “Metro Police, search warrant, do not resist” as they entered the home; all of the
officers wore clearly marked uniforms; and Grindstaff saw Fuqua backpedal and fire more-or-
less directly at Grindstaff. This evidence supports the district court’s finding that Fuqua knew
that Grindstaff was a police officer when Fuqua shot his gun.
Fuqua also contends that this finding too should have been made by a jury rather than a
judge. In support, he cites Alleyne v. United States, 133 S. Ct. 2151 (2013). But we have already
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held that “Alleyne dealt with judge-found facts that raised the mandatory minimum sentence
under a statute, not judge-found facts that trigger an increased guidelines range[.]” United States
v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014). And the § 3A1.2(c)(1) enhancement only
increased Fuqua’s guidelines range here. Hence this argument too is meritless.
H.
Fuqua challenges the district court’s use of U.S.S.G. § 2K2.1(c)(1) in determining the
base-offense level for Fuqua’s felon-in-possession conviction. Section 2K2.1(c)(1) provides
that, “[i]f the defendant used or possessed any firearm . . . cited in the offense of conviction with
knowledge or intent that it would be used or possessed in connection with another offense,” and
the base-offense level of that other offense is higher than the base-offense level specified in
§ 2K2.1(a), then the court should use the base-offense level for the other offense. U.S.S.G.
§ 2K2.1(c)(1).
Here, the district court found that Fuqua used his gun in connection with attempted
murder when he shot at Grindstaff as he entered Fuqua’s home. Per § 2K2.1(c)(1), therefore, the
district court used the base-offense level for attempted second-degree murder (27) in determining
the guidelines range for Fuqua’s felon-in-possession conviction. See U.S.S.G. § 2A2.1(a).
Fuqua challenges that “cross-reference” on three grounds. First he says the cross-
reference is contrary to the Supreme Court’s holding in Alleyne. But again the cross-reference
only increased Fuqua’s guidelines range, so that contention is meritless.
Second, Fuqua contends that insufficient evidence supports the district court’s finding
that Fuqua shot his gun at Grindstaff. Grindstaff’s own testimony, however, supports the court’s
finding.
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Nos. 14-5099 and 15-5515, United States v. Fuqua
Third, Fuqua contends that the cross-reference was unlawful because he already had a
conviction under § 924(c). Fuqua overlooks, however, that the cross-reference here elevated his
base-offense level for his felon-in-possession conviction, not his drug-trafficking conviction.
The rule that Fuqua seeks to apply bars only enhancement of a drug conviction when a defendant
already has a § 924(c) conviction in connection with that drug conviction. See U.S. Sentencing
Commission, Office of General Counsel, Firearms Primer, 32 (March 2013) (“If the court
imposes a sentence for a drug offense along with a consecutive sentence under 18 U.S.C.
§ 924(c) based on that drug offense, it simply cannot enhance the sentence for the drug offense
for possession of any firearm.” (emphasis added)). Thus this contention too is meritless. The
district court properly applied the cross-reference.
I.
Fuqua challenges the district court’s denial of his Rule 33 motion for a new trial, or in the
alternative, a new sentencing hearing. Fuqua first argues that he is entitled to a new trial because
he has new evidence that shows he did not fire the shot at Grindstaff. We review the court’s
denial of a new trial for an abuse of discretion. United States v. Jones, 399 F.3d 640, 647 (6th
Cir. 2005).
A district court may grant a new trial if: “(1) the new evidence was discovered after the
trial; (2) the evidence could not have been discovered earlier with due diligence; (3) the evidence
is material and not merely cumulative or impeaching; and (4) the evidence would likely produce
an acquittal.” United States v. Heriot, 496 F.3d 601, 604 (6th Cir. 2007).
Here, Fuqua presented as new evidence two written statements by Owens, who again was
the other man who was in possession of a gun when the police executed their search warrant at
Fuqua’s house. Owens signed these statements in 2014, after the district court had sentenced
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Nos. 14-5099 and 15-5515, United States v. Fuqua
Fuqua. In these statements Owens says that he, not Fuqua, fired the shot at Grindstaff as
Grindstaff moved towards the kitchen. The district court held that these statements did not
entitle Fuqua to a new trial. The court reasoned as follows:
the most recent statements of Mr. Owens . . . do not rebut any
element of the crimes for which the Defendant was convicted—
possession of a firearm by a felon; possession and discharge of a
firearm in furtherance of a drug trafficking crime; and possession
of marijuana with intent to distribute it. To the extent the
Defendant argues that the statements would call into question the
testimony of Detective Grindstaff, the Court concludes that the
statements are merely impeaching, rather than material to
Defendant’s convictions, and would not likely produce an acquittal
had the statements been available at trial.
United States v. Fuqua, No. 3:10-00065, (M.D. Tenn. May 5, 2015). This decision was not an
abuse of discretion.
Fuqua similarly argues that he is entitled to a new sentencing hearing because, he says, he
did not fire the second shot at Detective Grindstaff. In seeking that hearing, however, Fuqua
filed a motion for a new trial under Federal Rule of Criminal Procedure 33. And that Rule
makes no provision for a new sentencing hearing. See Fed. R. Crim. P. 33. Fuqua has not cited
any case law that shows otherwise. Hence this argument also fails.
J.
Finally, Fuqua makes some other arguments without citing any case law to support them.
But “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” Gradisher v. City of Akron, 794 F.3d 574, 586 (6th Cir.
2015) (internal quotation marks omitted). Thus we do not address these arguments.
* * *
The district court’s decisions in this case were both correct and thoroughly explained. Its
judgment is affirmed.
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