United States v. Wallace, No. 05-1424 (2d Cir. 2008)

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05-1424-cr United States v. Wallace 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: April 22, 2008 Decided: July 8, 2008) Docket No. 05-1424-cr - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, - v.RICKY P. WALLACE, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, KEARSE and KATZMANN, Circuit Judges. Appeal from a judgment of conviction entered in the 30 United States District Court for the Western District of New 31 York (Siragusa, J.). 32 narcotics does not constitute drug distribution within the 33 meaning of 21 U.S.C. § 841(a), and that his conviction 34 therefore rests on insufficient evidence. 35 conviction; however, the case is remanded in accordance with 36 United States v. Regalado, 518 F.3d 143 (2d Cir. 2008). The defendant argues that sharing We affirm the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 BRUCE R. BRYAN, Syracuse, NY, for Appellant. BRETT A. HARVEY, Assistant United States Attorney (Terrance P. Flynn, United States Attorney for the Western District of New York, on the brief), United States Attorney s Office for the Western District of New York, Rochester, NY, for Appellee. DENNIS JACOBS, Chief Judge: Ricky P. Wallace appeals the judgment of conviction 16 entered against him on drug and gun offenses following a 17 jury trial in the United States District Court for the 18 Western District of New York (Siragusa, J.). 19 chiefly that his sharing of narcotics on a social basis does 20 not constitute drug distribution for purposes of 21 U.S.C. § 21 841(a). 22 stated in this opinion and in a separate summary order 23 issued today; but we remand to the district court for 24 reconsideration of Wallace s sentence pursuant to United 25 States v. Regalado, 518 F.3d 143 (2d Cir. 2008). Wallace argues We affirm Wallace s conviction for the reasons 26 27 28 29 BACKGROUND In May, 2003, a confidential informant made two controlled purchases of cocaine base at an apartment in 2 1 Rochester, New York. 2 went into a bedroom, and came back with one or two small 3 ziplock bags containing cocaine base. 4 Rochester police executed a search warrant at the apartment, 5 in which Wallace lived with his father. 6 Wallace advised the officers that he lived in the apartment, 7 that he was unemployed, and that he had a shotgun in his 8 bedroom. 9 bags containing a total of 1.5 grams of cocaine base, a Each time, the seller took the cash, A week later, During the search, From his bedroom, the police recovered ziplock 10 quantity of new unused ziplock bags, 91.22 grams of 11 marijuana, an AK-47 semi-automatic assault weapon and 12 ammunition compatible with it, and $460 in cash. 13 After his arrest, Wallace waived his Miranda rights and 14 made several statements to the police: that he had cocaine 15 base and marijuana to use and share with his friends, but 16 was not a drug dealer; that he used the ziplock bags to 17 store the drugs for his own use; that he kept the AK-47 to 18 protect himself and his bed-ridden father; and that he knew 19 the weapon was illegal, but made sure to keep it unloaded. 20 These statements were admitted at trial.1 1 No evidence of the confidential informant s controlled purchases was admitted at trial. 3 1 Wallace testified to the following at trial. He was 2 unemployed; however, his father received disability and 3 Social Security checks, which Wallace (who had power of 4 attorney) would cash to pay the monthly $400 rent and 5 utilities for the apartment. 6 belonged to him, while the gun belonged to his father. He 7 purchased $50 worth of cocaine base every month or so. He 8 had purchased about $600 worth of marijuana two or three 9 years earlier, the remains of which were seized by the The narcotics and ziplock bags 10 police. 11 occasion, to share with friends. 12 in bulk. 13 smaller pieces and place them in the ziplock bags so that 14 his visitors would not know how much he had and try to use 15 it all up. 16 got the AK-47 from a boss and brought it to the apartment. 17 Tr. 437. 18 for safety, keeping it under his mattress and putting the 19 ammunition in an empty baby wipes container. He had the drugs for his personal use and, on He purchased ziplock bags It was his practice to break the cocaine base into Tr. 433. Wallace s girlfriend and his father To prevent it from hurting anyone, he put it up Id. 20 On April 9, 2004, the jury convicted Wallace of 21 possession of cocaine base with intent to distribute, in 22 violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C), possession 4 1 of a firearm as a convicted felon, in violation of 18 U.S.C. 2 §§ 922(g)(1) and 924(a)(2), and possession of marijuana, in 3 violation of 21 U.S.C. § 844(a). 4 5 6 DISCUSSION Wallace argues that the evidence was insufficient to 7 support his conviction for possession with the intent to 8 distribute cocaine because the government failed to prove 9 that he held (or shared) drugs with a commercial purpose. A 10 defendant challenging the sufficiency of the evidence bears 11 a heavy burden. 12 348 (2d Cir. 2002). 13 in the light most favorable to the government and all 14 permissible inferences drawn in its favor, but if the 15 evidence, thus construed, suffices to convince any rational 16 trier of fact of the defendant s guilt beyond a reasonable 17 doubt, the conviction must stand. 18 Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995) (internal 19 citations omitted). 20 United States v. Griffith, 284 F.3d 338, Not only must the evidence be viewed United States v. On the same legal theory, Wallace challenges the 21 district court s supplemental jury instruction that 22 [s]haring drugs with another constitutes distribution. 5 1 [W]e will not find reversible error unless a charge either 2 failed to inform the jury adequately of the law or misled 3 the jury as to the correct legal rule. 4 Alfisi, 308 F.3d 144, 148 (2d Cir. 2002). United States v. 5 6 I 7 This Circuit has not yet decided whether the social 8 sharing of a small quantity of drugs, without consideration, 9 constitutes the distribution of drugs within the meaning of 10 21 U.S.C. § 841(a). 11 353, 358 n.6 (2d Cir. 2001) ( Drugs intended for personal 12 use are not for distribution. 13 drugs held to be shared gratis with family and friends, 14 though not for personal use, are also not for 15 distribution, pursuant to 21 U.S.C. § 841. 16 we take no position whatsoever. ). 17 See United States v. Williams, 247 F.3d It may be, however, that On this point, Several of our sister circuits, however, have concluded 18 that distribution within the meaning of 21 U.S.C. § 841(a) 19 can take place without a sale. 20 Cormier, 468 F.3d 63, 70 n.3 (1st Cir. 2006) ( It is well 21 accepted that drugs may be distributed by giving them away 22 for free; 21 U.S.C. § 841(a)(1) imposes no requirement that 6 See, e.g., United States v. 1 a sale take place. ); United States v. Fregoso, 60 F.3d 2 1314, 1325 (8th Cir. 1995) ( No sale is required to 3 violate the statute. ); United States v. Vincent, 20 F.3d 4 229, 233 (6th Cir. 1994) ( In order to establish the knowing 5 or intentional distribution of a controlled substance, the 6 government needed only to show that defendant knowingly or 7 intentionally delivered a controlled substance. 8 irrelevant for the government to also show that defendant 9 was paid for the delivery. (internal citation omitted)); It was 10 United States v. Washington, 41 F.3d 917, 919 (4th Cir. 11 1994) (holding that the defendant s intent to share the 12 cocaine with others is sufficient for a court to find that 13 he possessed drugs with intent to distribute ); United 14 States Ramirez, 608 F.2d 1261, 1264 (9th Cir. 1979) 15 ( [T]here is direct evidence that appellant engaged in the 16 distribution of cocaine; although apparently no commercial 17 scheme is involved, his sharing the cocaine . . . 18 constitutes distribution for purposes of 21 U.S.C. § 19 841(a)(1). ). 20 We now join this sound majority and hold that the 21 sharing of drugs, without a sale, constitutes distribution 22 for purposes of 21 U.S.C. § 841(a), which makes it illegal 7 1 to possess with intent to manufacture, distribute, or 2 dispense, a controlled substance. 3 The word distribute means to deliver, id. § 802(11); and 4 deliver means the actual, constructive, or attempted 5 transfer of a controlled substance, id. § 802(8). 6 definitions, which take no account of consideration, bespeak 7 a congressional intent to proscribe a range of conduct 8 broader than the mere sale of narcotics. 9 F.3d at 919. 10 21 U.S.C. § 841(a)(1). These Washington, 41 This reading respects the line between possession and 11 distribution. 12 U.S.C. § 844, refers to possession for one s own use, 13 United States v. Dovalina, 525 F.2d 952, 958 (5th Cir. 1976) 14 (internal quotation marks and citation omitted), whereas 15 distribution, in violation of 21 U.S.C. § 841(a), can only 16 be ultimately accomplished by delivery to a distributee, 17 United States v. Binkley, 903 F.2d 1130, 1138 (7th Cir. 18 1990). 19 personal use is in possession; one who delivers or transfers 20 narcotics to another--for consideration or gratis--is 21 distributing. 22 Simple possession, in violation of 21 Thus a defendant who holds narcotics solely for Wallace testified that he purchased cocaine base and 8 1 marijuana for his own personal use, and also shared the 2 drugs with friends. 3 it by myself . . . but if a lady friend come by we use it 4 together, you know, have some and relax . . . . ). 5 testimony is direct evidence that Wallace engaged in the 6 distribution of cocaine base. 7 See Tr. 432 ( Most of the time I used This Accordingly, we reject Wallace s sufficiency challenge. 8 We likewise reject his challenge to the supplemental jury 9 charge that [s]haring drugs with another constitutes 10 distribution --the charge is sound. 11 12 13 II Wallace relies chiefly on Lopez v. Gonzales, 549 U.S. 14 47, 127 S. Ct. 625 (2006), to support the idea that proof of 15 commercial dealing is required for a conviction under 21 16 U.S.C. § 841(a). 17 Immigration and Nationality Act ( INA ) providing for the 18 deportation of aggravated felon[s]. 19 definition of aggravated felony is the illicit 20 trafficking in a controlled substance . . . including a drug 21 trafficking crime. 22 U.S.C. § 1101(a)(43)(B)). Lopez addressed a provision of the Included in the Lopez, 127 S. Ct. at 627-28 (quoting 8 The INA defines a drug 9 1 trafficking crime as any felony punishable under the 2 Controlled Substances Act. 3 (quoting 18 U.S.C. § 924(c)(2)). 4 was helping another possess narcotics, which is punishable 5 under the Controlled Substances Act as a misdemeanor, but 6 as a felony under state law. 7 presented was whether such an offense was a drug 8 trafficking crime. 9 Lopez, 127 S. Ct. at 628 The petitioner s offense See id. at 629. The question The government in Lopez argued that the INA requires 10 only that the offense be punishable, not that it be 11 punishable as a federal felony, a position that the Court 12 considered incoheren[t] with any commonsense conception of 13 illicit trafficking. 14 Court looked to the everyday understanding of 15 trafficking, noted that [c]ommerce . . . was no part of 16 the offense (helping another possess narcotics), and decided 17 that that militated against the government s interpretation 18 of the INA: to read the INA as the government did would 19 often turn simple possession into trafficking, just what the 20 English language tells us not to expect. 21 22 Lopez, 127 S. Ct. at 629. Id. at 630. Lopez is distinguishable on several levels. Lopez consulted the everyday understanding of 10 The First, 1 trafficking because there, the statutes in play do not 2 define the term, and so remit us to regular usage to see 3 what Congress probably meant. 4 define terms; and the definitions (as discussed supra) 5 describe distribution without regard to sale or traffic. 6 Second, Lopez interpreted another statute, the aggravated 7 felony provision of the INA; that statute uses the phrase 8 illicit trafficking ; the word traffic means commerce and 9 trade; and no form of that word is used in the statute that Id. But Title 21 does 10 proscribes Wallace s offense. 11 (making it illegal to possess with intent to manufacture, 12 distribute, or dispense, a controlled substance ). See 21 U.S.C. § 841(a) 13 Wallace further contends that United States v. 14 Swiderski, 548 F.2d 445 (2d Cir. 1977), indicates that a 15 felony drug offense must be commercial in nature. 16 held that where two individuals simultaneously and jointly 17 acquire possession of a drug for their own use, intending 18 only to share it together, their only crime is personal drug 19 abuse--simple joint possession, without any intent to 20 distribute the drug further. 21 one of the joint possessors serves as a link in the chain 22 of distribution, we concluded that simple joint possession Id. at 450. 11 Swiderski Since neither 1 does not pose any of the evils which Congress sought to 2 deter and punish through the more severe penalties provided 3 for those engaged in a continuing criminal enterprise or 4 in drug distribution. 5 Id. Wallace never testified that he shared his drugs with 6 anyone as joint possessors within the meaning of 7 Swiderski. 8 limited to the passing of a drug between joint possessors 9 who simultaneously acquired possession at the outset for The rule announced in Swiderski is expressly 10 their own use. 11 would not apply where the evidence showed that the defendant 12 handed over a small amount of marijuana . . . for smoking 13 purposes to another individual without proof that the other 14 individual had jointly and simultaneously acquired 15 possession of the drug at the outset. 16 United States v. Branch, 483 F.2d 955 (9th Cir. 1973)). 17 Rather, since sole possession in such a case would rest 18 with the defendant, his transfer of the drug to a third 19 person, friend or not, would violate the prohibition on 20 drug distribution. 21 sole possession of the drugs, even if he handed over a 22 small amount to his occasional visitor. Id. at 450-51. We advised that the rule Id. at 450 (citing Swiderski, 548 F.2d at 450. 12 Id. Wallace had 1 Nor can Wallace find refuge in cases in which 2 convictions under 21 U.S.C. § 841(a) were reversed for want 3 of evidence that the possession of narcotics was with the 4 intent to distribute. 5 F.2d 230 (2d Cir. 1991), we reversed a conviction on 6 sufficiency grounds where the quantity of cocaine at issue, 7 5.31 grams (.19 oz.), was not inconsistent with personal 8 use. 9 cases, it mattered that defendant had none of the tools of Id. at 234. In United States v. Boissoneault, 926 But in that case, and other similar 10 the trade. 11 scales, beepers, and other devices, or the materials 12 needed to process cocaine or to package it in druggist 13 folds, or a gun or other weapon, which would have helped 14 sustain an inference that he was engaged in the dangerous 15 business of drug trafficking. 16 Thus there was no proof that Boissoneault had Id. This is not the Boissoneault case. When the Rochester 17 police searched Wallace s bedroom, they found (among other 18 things) 1.5 grams of cocaine base parceled out in more than 19 a dozen small ziplock bags; a dinner plate holding numerous 20 new and unused small ziplock bags; a ziplock bag containing 21 numerous new and unused small ziplock bags bearing green 22 dollar signs; a dresser drawer full of empty and unused 13 1 glassine ziplock bags; and a semi-automatic assault weapon 2 and ammunition for it. 3 to the government, this evidence supports the inference that 4 Wallace had the intent to distribute narcotics. 5 States v. Gamble, 388 F.3d 74, 77 (2d Cir. 2004) (affirming 6 finding of intent to distribute where [l]aw enforcement 7 officers found 1.7 grams of cocaine base (with a purity of 8 79 percent), packaged in twenty-six zip-lock bags, . . . 9 along with hundreds of empty zip-lock bags, and evidence 10 showed an unusually high volume of pedestrian traffic at 11 [the defendant s] apartment in the weeks preceding the 12 search ); United States v. Martinez, 54 F.3d 1040, 1043 (2d 13 Cir. 1995) ( [P]articularly in light of [the defendant s] 14 admission that he was not a user, his physical possession of 15 a scale, cut, and a loaded firearm supported the jury s 16 rejection of his personal-use defense. ); United States v. 17 White, 969 F.2d 681, 684 (8th Cir. 1992) ( Because a gun is 18 generally considered a tool of the trade for drug dealers, 19 [it] is also evidence of intent to distribute. (internal 20 citation and punctuation omitted)); United States v. 21 Garrett, 903 F.2d 1105, 1113 (7th Cir. 1990) ( Intent to 22 distribute has been inferred in cases where small amounts of Viewed in the light most favorable 14 See United 1 drugs have been packaged in a manner consistent with 2 distribution or have been possessed in conjunction with 3 other indicia of drug distribution, such as a weapon. 4 (footnote omitted)). 5 Also seized was $460 in cash. Wallace testified that 6 he was unemployed, and that he relied on his father s 7 disability checks to pay the $400 monthly rent, the utility 8 bills and medical expenses. 9 to infer that Wallace lacked any legitimate income to 10 purchase the cocaine base for his personal use and for 11 sharing with friends. These facts made it permissible 12 13 14 III In a letter to the panel pursuant to Federal Rule of 15 Appellate Procedure 28(j), Wallace argues that remand to the 16 district court is warranted in light of the Supreme Court s 17 decision in Kimbrough v. United States, 128 S. Ct. 558 18 (2007). We agree. 19 Because Wallace did not challenge this aspect of 20 sentencing below, we review the district court s decision 21 for plain error. 22 147 (2d Cir. 2008). United States v. Regalado, 518 F.3d 143, We cannot be certain from the record 15 1 whether the district court would have imposed a lower 2 sentence had it been aware that the cocaine Guidelines, 3 like all other Guidelines, are advisory only, and that it 4 therefore had discretion to deviate from the Guidelines 5 where necessary to serve the objectives of sentencing under 6 18 U.S.C. § 3553(a). 7 Ct. at 564, 575). 8 to give the district court an opportunity to indicate 9 whether it would have imposed a non-Guidelines sentence Id. at 145 (quoting Kimbrough, 128 S. The proper course is therefore to remand 10 knowing that it had discretion to deviate from the 11 Guidelines to serve those objectives. 12 at 149. Regalado, 518 F.3d 13 14 15 CONCLUSION For the reasons stated in this opinion (and the 16 accompanying summary order), the judgment is AFFIRMED as to 17 the conviction and the case is REMANDED to the district 18 court for consideration of resentencing. 16

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