Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
7-14-2006
USA v. Greene
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2717
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Greene" (2006). 2006 Decisions. Paper 746.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/746
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2717
UNITED STATES OF AMERICA
v.
SHAFEEQ GREENE,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 02-cr-00685-1)
District Judge: Hon. Jerome B. Simandle
Submitted Under Third Circuit LAR 34.1(a)
July 10, 2006
Before: SLOVITER, McKEE and RENDELL, Circuit Judges
(Filed: July 14, 2006)
OPINION
SLOVITER, Circuit Judge.
Shafeeq Greene appeals from his conviction for knowing possession of a firearm
by a formerly convicted felon and from his sentence. As we write primarily for the
parties, who are familiar with the record, our recitation of the facts will be limited to those
necessary to our determination.
I.
On June 21, 2002, Patrolman Sheehan of the Berlin Township, New Jersey, Police
Department pulled Greene over for driving a car in excess of the posted speed limit.
After discovering that Greene’s driver’s license and vehicle registration had been
suspended, Patrolman Sheehan told Greene the car would be impounded. Greene asked
the police to retrieve documents from the vehicle’s glove compartment. A back-up
officer opened the glove compartment and saw inside it, in plain view, a clear plastic bag
with nine red plastic bags in turn containing a white, rock-like substance. Suspecting that
the substance was an illegal drug, the officers placed Greene under arrest.1 A police dog
alerted the officers to the scent of drugs both in the car’s center console and on cash taken
from Greene’s pocket. From the center console, the police seized a loaded .45-caliber
Glock semi-automatic pistol with its serial number scratched off, $3000 in cash, several
cellular telephones, and mail addressed to Greene.
Thereafter, Greene pled guilty in the District Court to a one-count indictment
1
A forensic examination later confirmed that the substance
was cocaine.
2
charging a violation of 18 U.S.C. § 922(g)(1) – knowing possession of a firearm by a
formerly convicted felon. In a written plea agreement (“Agreement”), Greene stipulated
that the applicable Sentencing Guideline for his knowing and willful possession of the
gun was U.S.S.G. § 2K2.1(a)(4)(A), under which the base offense level was at least 20
due to his prior conviction for a controlled-substance offense. Further, Greene stipulated
in the Agreement that the gun’s serial number had been obliterated, subjecting him to a
two-level sentencing enhancement pursuant to U.S.S.G. § 2K2.1(b)(4), and that he was
entitled to a reduction of three sentencing levels for acceptance of responsibility (pursuant
to U.S.S.G. § 3E1.1).
The Pre-Sentence Investigation Report (“PSR”) adopted each of the Agreement’s
stipulations. The PSR also determined that Greene was subject to a four-level
enhancement for possession of a firearm “in connection with another felony offense”
pursuant to U.S.S.G. § 2K2.1(b)(5), and calculated a Total Offense Level of 23. Greene
both objected to this enhancement and moved for a downward departure under U.S.S.G. §
5K2.0 based upon claimed post-offense rehabilitation.
The District Court conducted a sentencing hearing on June 3, 2004. At the
conclusion of the hearing, it issued an oral opinion stating that the Government had
satisfied its burden of proving by a preponderance of the evidence that Greene was
engaged in the felony of drug distribution when he was arrested on June 21, 2002 and
possessed the .45 caliber pistol in connection with that felony. The Court found that
Greene’s Total Offense Level was 23 and, based upon an uncontested Criminal History
3
Category of III, found that the applicable Guidelines range was 57 to 71 months.
At the sentencing hearing, the District Court also heard argument regarding
Greene’s downward departure motion. The Court concluded that it had authority to grant
Greene’s requested departure. Nevertheless, it denied the departure, and instead
determined that Greene’s effort at rehabilitation after his arrest “warrants a sentence in
the low end of the Guideline range,” App. at 96. The court imposed a sentence of 57
months with a three-year term of supervised release.
Greene timely filed the present appeal. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
II.
Greene makes three arguments on appeal: (1) that, under United States v. Booker,
543 U.S. 220 (2005), the District Court plainly erred by sentencing him pursuant to an
unconstitutional sentencing scheme, (2) that the District Court clearly erred by finding
that Greene possessed a firearm in connection with the uncharged felony offense of drug
distribution, and (3) that the District Court plainly erred by relying at sentencing upon the
Judge’s personal experience with drug distribution cases.
The Supreme Court in Booker held that the then-prevailing sentence scheme which
mandated that sentencing judges apply the Sentencing Guidelines was unconstitutional. It
is undisputed that the District Court, in sentencing Greene six months before the Booker
decision, treated the Sentencing Guidelines as mandatory rather than advisory. Greene is
therefore entitled to resentencing. United States v. Davis, 407 F.3d 162, 165 (3d Cir.
4
2005) (en banc).
On remand, the District Court will have the opportunity to address Greene’s
challenge to the finding of the connection between the firearm and drug distribution, a
connection this court has previously recognized. See, e.g., United States v. Russell, 134
F.3d 171, 183 (3d Cir. 1998) (“[G]uns are a tool of the drug trade.”); United States v.
Adams, 759 F.2d 1099, 1108 (3d Cir. 1985) (equating the gun with “the most commonly
recognized narcotics paraphernalia”); see also, e.g., United States v. Perez, 280 F.3d 318,
342 (3d Cir. 2002) (concluding that expert testimony discussing drug traffickers’ use of
cell phones and pagers to evade location by police investigators was properly admitted by
the district court); United States v. Ten Thousand Seven Hundred Dollars & No Cents in
United States Currency, 258 F.3d 215, 232 (3d Cir. 2001) (observing “that the amount of
money in claimants’ possession . . . constitute[s] probative circumstantial evidence that
the currency itself is connected to illicit narcotics transactions”). The evidence in this
case, the nine bags containing drugs in the glove compartment and $3,000 in cash
alongside several cellular telephones in the center console, appears to fall within those
precedents.
Accordingly, we will vacate Greene’s sentence and remand this matter for
resentencing consistent with Booker. See generally United States v. Cooper, 437 F.3d
324 (3d Cir. 2006) (discussing standards for post-Booker sentencing).2
2
The Government argues that “[t]o the extent that Greene
seeks review of the District Court’s discretionary denial of
5
Greene’s motion for a downward departure pursuant to U.S.S.G. §
5K2.0, this Court is without jurisdiction to consider that claim.”
Appellee’s Br. at 1 (citing 18 U.S.C. § 3742(a)). In Cooper, we
reaffirmed our pre-Booker precedent barring appellate review of
district courts’ “discretionary decisions to deny departure, unless
for allegation of legal error.” Cooper, 437 F.3d at 332 (citing,
inter alia, United States v. Ruiz, 536 U.S. 622, 626-28 (2002)).
Our vacation and remand of Greene’s sentence affords him the
opportunity to seek downward departure anew. We express no
opinion on this issue.
6