Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 925 F.2d 1471 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Asencion BENITEZ-OSUNA, Defendant-Appellant.

No. 90-30207.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 8, 1991.* Decided Feb. 25, 1991.

Before WIGGINS, BRUNETTI and THOMAS G. NELSON, Circuit Judges.


MEMORANDUM** 

Defendant Asencion Benitez-Osuna appeals his conviction and sentence for possession of a firearm during distribution of a controlled substance in violation of 18 U.S.C. § 924(c) (1).

On December 5, 1989, Anchorage Police Department Officer David Cooper ("Agent Cooper"), while acting in an undercover capacity, sought to purchase one kilogram of cocaine from Asencion Benitez-Osuna ("Benitez"). On two prior occasions, Benitez had sold cocaine to Agent Cooper. After negotiating for the price, Benitez left Agent Cooper to retrieve the cocaine.

Approximately ninety (90) minutes after their initial meeting, Benitez returned in a van with the cocaine. Benitez motioned for Agent Cooper to enter the van, and when Agent Cooper did enter the van, Benitez directed Agent Cooper's attention to the console situated between the driver's and front passenger's seats. Among other items in the console were a one kilo package of cocaine and a .44 magnum revolver. Although Benitez never made a motion to touch the gun other than originally pointing to the console area, Agent Cooper testified that he felt threatened by the presence of the gun.

Benitez was immediately arrested, and a search and inventory of the van was performed. The gun was determined to be a loaded Ruger Blackhawk. Used target practice sheets were also found in the vehicle.

Benitez was charged with three (3) counts of distribution of a controlled substance in violation of 21 U.S.C. § 841(a) (1), and one (1) count of possession of a firearm during the distribution of a controlled substance in violation of 18 U.S.C. § 924(c) (1).1  Following a jury trial, Benitez was convicted on all counts. On appeal Benitez argues that his Sec. 924(c) (1) conviction must be set aside for the following reasons: (1) there was insufficient evidence to prove that the firearm was used "in relation to" the underlying crime; (2) he was denied effective assistance of counsel; and (3) he was incorrectly sentenced regarding the firearm violation. We consider each argument in turn.

There is sufficient evidence to support a criminal conviction if, reviewing the evidence in the light most favorable to the government, any rational trier of fact could have found each element of the crime beyond a reasonable doubt. United States v. Adler, 879 F.2d 473, 495 (9th Cir. 1988).

Benitez contends that the revolver in the console of the van was not used "in relation to" the crime of distribution, because it was not used or threatened to be used at any time. Further, Benitez contends that Agent Cooper had as much opportunity as Benitez to reach or use the gun, and that Agent Cooper had control of the console area in which the gun was located during the time when he was examining the cocaine.

A necessary element of Sec. 924(c) (1) is the use of a firearm "during and in relation to any ... drug trafficking crime." Although "the mere presence of a firearm does not trigger the statute," United States v. Phelps, 877 F.2d 28, 30 (9th Cir. 1989), a gun need not be brandished or displayed to cause a violation of the statute. See United States v. Mason, 658 F.2d 1263, 1270 (9th Cir. 1981) (pistol located on floor of car and holstered revolver on seat of car "used" in drug deal); see also United States v. Moore, 580 F.2d 360, 362 (9th Cir.), cert. denied 439 U.S. 970 (1978) (possession of gun by attempted bank robber "increased the likelihood of success," and thus was "used" in commission of crime).

In United States v. Stewart, 779 F.2d 538 (9th Cir. 1985), cert. denied 484 U.S. 867 (1987), we held that:

If the firearm is within the possession or control of a person who commits an underlying crime as defined by the statute, and the circumstances of the case show that the firearm facilitated or had a role in the crime, such as emboldening an actor who had the opportunity or ability to display or discharge the weapon to protect himself or intimidate others, whether or not such display or discharge in fact occurred, then there is a violation of the statute.

Id. at 540 (emphasis added) (citing United States v. La Guardia, 774 F.2d 317, 321 (8th Cir. 1985); Mason, 658 F.2d at 1270-71) (Uzi rifle in trunk of car parked outside defendant's residence "used" in operation of drug lab on business premises).

Although Benitez never brandished the revolver, a rational jury could have found beyond a reasonable doubt that the revolver "emboldened" him in the commission of the crime of cocaine distribution. Thus, there was sufficient evidence to support the conviction.

Benitez contends that he was denied effective assistance of counsel as the result of counsel's failure to have him testify. Benitez would have testified that the firearm was not used to facilitate the distribution of cocaine, but rather had been inadvertently left in the vehicle after having been used for recreational target practice.

The issue is not properly before this court. A claim of ineffective assistance of counsel is ordinarily not reviewable on direct appeal. See United States v. Rewald, 889 F.2d 836, 859 (9th Cir. 1989), cert. denied 111 S. Ct. 64 (1990) ("this Court has been chary of analyzing insufficiency of counsel claims on direct appeal") (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985); United States v. Pope, 841 F.2d 954, 958 (9th Cir. 1988). The proper method for raising this type of claim is through a Sec. 2255 habeas proceeding, so that the factual background of the claim can be fully developed. See Rewald, 889 F.2d at 859.

However, if a defendant's legal representation at trial was so inadequate as to deny him his constitutional right to counsel or his right to a fair trial, the trial court's failure to remedy the problem may constitute plain error which would be reviewable on direct appeal. See United States v. Wagner, 834 F.2d 1474, 1482 (9th Cir. 1987); United States v. Kazni, 576 F.2d 238, 242 (9th Cir. 1978). Such a case is not before us. We decline to rule on the issue of ineffective assistance of counsel.

Benitez argues that his sentence violates 18 U.S.C. § 3553(a) (6) because the use of a firearm could either have been charged as a separate substantive offense or used as a specific offense characteristic to enhance the sentence for the underlying offense.

This circuit has held that when a statute requires a sentence that is different than that required by the United States Sentencing Guidelines ("Guidelines"), the statute controls. United States v. Sharp, 883 F.2d 829, 831 (9th Cir. 1989); see also U.S.S.G. Sec. 5G1.1 commentary.

The Guidelines themselves seem to contemplate Benitez's argument: "If the defendant, whether or not convicted of another crime, was convicted under 18 U.S.C. § 924(c) ..., the term of imprisonment is that required by statute." U.S.S.G. Sec. 2K2.4. The commentary to this section reads as follows: "Where a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for the possession, use, or discharge of a firearm ... is not to be applied in respect to the guideline for the underlying offense."

The district court did not use the firearm possession to depart upward from the applicable Guideline range on the offense of distribution. The imposition of a separate sentence for possession of a firearm is authorized by statute, case law and the Guidelines; Benitez's argument that the sentence for possession violates 18 U.S.C. § 3553(a) is not supportable.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3

 1

In relevant part, 18 U.S.C. § 924(c) (1) reads:

Whoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime ... be sentenced to imprisonment for five years.