United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2802
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern District
* of Arkansas.
Pierre Bell, *
*
Appellant. *
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Submitted: January 8, 2007
Filed: February 21, 2007
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Before WOLLMAN, BEAM, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Pierre Bell was charged with possession with intent to distribute crack cocaine
in violation of 21 U.S.C. § 841(a)(1); possession of a firearm after being convicted of
a felony in violation of 18 U.S.C. § 922(g)(1); and possession of a firearm during and
in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). Bell moved
to suppress statements he made to law enforcement officers, alleging his statements
were involuntary. The district court denied Bell’s motion, and the case proceeded to
trial. A jury found Bell guilty of all three offenses.
In determining the appropriate advisory Guidelines sentencing range for Bell,
the district court declined to group Bell’s felon in possession and drug trafficking
offenses, resulting in a one-level increase in his offense level. Bell was sentenced to
144 months of imprisonment for the drug offense and 120 months of imprisonment
for the felon in possession count, with these terms to be served concurrently. The
court sentenced Bell to a consecutive term of 60 months on the other firearm offense,
as required by § 924(c).
Bell raises three issues on appeal. First, Bell appeals the district court’s denial
of his motion to suppress. Second, Bell asserts there was insufficient evidence to
support the jury’s verdicts of guilty. Third, Bell challenges the district court’s failure
to group two of his three offenses in determining his advisory Guidelines range. For
the reasons stated below, we affirm the district court’s denial of Bell’s motion to
suppress and affirm the convictions. We remand, however, for resentencing in
accordance with this opinion.
I. Background
On November 4, 2004, members of the Pine Bluff Police Department and the
Tri-County Drug Task Force executed a search warrant at 309 East 21st Street in Pine
Bluff, Arkansas. Bell was present, as were the residence’s occupants: Reecie
Humphrey and her children. When officers entered the home, they found Bell and
Humphrey in bed. Officers located a revolver between the mattresses on Bell’s side
of the bed. A pair of pants lay on the bedroom floor. In the pants pocket officers
found a wallet containing Bell’s identification, approximately seven grams of crack
cocaine, a key ring with a key to the house, and over $300 in currency. In the same
room, officers found a small amount of marijuana and a pill bottle containing powder
cocaine. Officers arrested Bell and Humphrey; both Bell and Humphrey made
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statements to law enforcement officers. The instant federal charges against Bell
followed.
Bell moved to suppress his statement, alleging it was involuntary. At a
suppression hearing on January 12, 2006, the government and Bell presented
contrasting accounts of the execution of the search warrant. The government
presented testimony from officers involved in the search. The officers testified that
as they entered the bedroom occupied by Bell and Humphrey, they saw Bell slide to
the floor and reach towards the bed as though he was trying to retrieve something.
The revolver was discovered in the area where Bell had reached.
Bell and Humphrey were naked when the officers entered the bedroom; they
were allowed to don clothing. Officers arrested both Bell and Humphrey and seated
them in the living room. Eventually, Officer Oscar Bullard removed Humphrey to a
pantry-type room, where Humphrey provided a written statement. In her statement,
Humphrey said the drugs and the gun found during the search were Bell’s. She stated
Bell brought those items to her house early that morning.
After Humprey gave her statement, Officer William Roulhac interviewed Bell
in the kitchen. Officer Roulhac testified he provided Bell with his Miranda rights and
Bell agreed to speak with him. Bell admitted the seized crack cocaine belonged to
him. He also admitted the gun was his, providing a description of the firearm
consistent with its appearance. Bell began to write a statement, using his own words.
Bell wrote “the work that was in the girls house is mine.” When Officer Roulhac
asked about the meaning of “work,” Bell explained work is the equivalent of crack,
selling crack. Officer Roulhac felt future readers of the statement might not
understand the vernacular Bell used, so he stopped Bell from completing his statement
and began writing one for him. Officer Roulhac testified Bell agreed to allow Officer
Roulhac to write for him. Bell reviewed and signed the completed statement. Among
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other things, the statement acknowledges the gun and the crack found in the house
belong to Bell.
Humphrey testified at the suppression hearing that her written statement was
false. She alleged a police officer told her to say all of the items were Bell’s and
threatened the removal of her children if she failed to cooperate. She testified officers
threatened and assaulted Bell. She stated the seized revolver was hers and she lied
about the ownership of the gun because she was afraid she would lose her housing-
assistance payments if she told the truth about the gun.
Bell also testified at the suppression hearing. He testified officers held a
machine gun to his head after they found him naked in bed. He claimed officers
assaulted him and threatened him with a taser gun. He stated he asked to talk to his
lawyer, but his request was ignored. He testified he scribbled his name on the
statement written by Officer Roulhac only after these alleged transgressions. He
denied the statement was true.
The district court credited the officers’ testimony “in all material particulars.”
The court found Bell was provided with a written Miranda warning. It concluded
Officer Roulhac read the written statement he drafted to Bell, Bell did not object to
the statement, and Bell signed the statement. “Based on the entire record,” the court
concluded Bell’s statement was voluntarily made after an intelligent and knowing
waiver of his Miranda rights. The court did not credit the testimony of Bell or
Humphrey.
Bell proceeded to trial. At trial, in addition to the evidence presented at the
suppression hearing, the government presented expert testimony regarding the drugs
seized and the relationship between drugs and guns. Arkansas State Police Sergeant
Don Sanders testified that the amount of crack cocaine found in Bell’s pants pocket
was consistent with sale or distribution, not personal use. He further testified drug
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dealers commonly possess firearms to protect themselves, their illegal goods, and their
illegal proceeds.
Humphrey testified for the defense. As at the suppression hearing, Humphrey
testified her prior statement, which was introduced into evidence during the
government’s case in chief, was false. Her testimony conflicted with that presented
by the government in many respects. For example, she testified Bell did not slide to
the floor as the officers entered the room. She claimed ownership of the gun and
denied Bell knew it was in the home. The jury found Bell guilty of all counts.
At sentencing, the parties did not contest the base offense levels applicable to
Bell’s counts of conviction: an offense level 26 for Bell’s conviction for possession
with intent to distribute and an offense level 20 for his felon in possession conviction.1
No offense characteristic enhancements were applied to either count.
Over Bell’s objections, the court declined to group the felon in possession and
possession with intent to distribute counts into a single group.2 Instead, the court
applied a multiple count adjustment. See U.S.S.G. § 3D1.4. The court added a one-
level increase to the highest offense level, 26, resulting in a total offense level of 27.
Bell qualified as a criminal history category VI, resulting in an advisory Guidelines
range of 130 to 162 months. Had the counts been grouped, the range would have been
120 to 150 months.
1
The Guidelines sentence for a § 924(c) conviction is the statutory
mandatory minimum of 60 months’ imprisonment. See U.S.S.G. § 2K2.4(b). Thus,
there is no offense level for that count.
2
The Guidelines grouping rules do not apply to convictions under 18 U.S.C.
§ 924(c). U.S.S.G. § 3D1.1(b)(1).
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The district court sentenced Bell to 144 months for the drug offense and 120
months for the felon in possession conviction, to be served concurrently. The court
imposed a consecutive term of 60 months’ imprisonment for the remaining count, for
a total of 204 months’ imprisonment.
II. Discussion
A. Motion to Suppress
“We review the district court’s factual determinations in support of its denial
of a motion to suppress for clear error and its legal conclusions de novo.” United
States v. Harper, 466 F.3d 634, 643 (8th Cir. 2006). We “will affirm the district
court’s denial of a motion to suppress evidence unless it is unsupported by substantial
evidence, based on an erroneous interpretation of applicable law, or, based on the
entire record, it is clear a mistake was made.” United States v. Annis, 446 F.3d 852,
855 (8th Cir. 2006) (internal quotation omitted).
Bell does not contest he was provided with his Miranda rights. He contends his
statements were involuntarily made – the result of threats and coercion – and therefore
should have been suppressed, despite the Miranda warnings. A defendant’s
statements after being advised of his Miranda rights may be used against him if he
knowingly and voluntarily waived his rights. See id. (citing, inter alia, Missouri v.
Seibert, 542 U.S. 600, 608 n.1 (2004)). “A waiver is ‘knowing and intelligent’ where
it is made with full awareness of both the nature of the right being abandoned and the
consequences of abandoning the right, and a waiver is ‘voluntary’ where the court can
determine that the waiver was a product of the suspect’s free and deliberate choice,
and not the product of intimidation, coercion, or deception.” Thai v. Mapes, 412 F.3d
970, 977 (8th Cir. 2005). The totality of the circumstances inform whether a
“defendant’s will was overborne,” making his statement involuntary. Annis, 446 F.3d
at 855.
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The district court’s finding that Bell’s written statement was voluntarily made
was based upon the court’s credibility determination. Because the government and
the defense witnesses presented conflicting accounts of the conditions under which
Bell provided his statements, credibility was the determining factor. “[C]redibility is
a determination for the trier-of-fact, and its assessment is virtually unassailable on
appeal.” United States v. Rodriguez, 414 F.3d 837, 845 (8th Cir. 2005). After
presiding over the suppression hearing, observing the witnesses, and considering the
evidence, the district court credited the testimony of the law enforcement officers,
who denied abusing, assaulting, or threatening Bell, and concluded the contrary
testimony provided by Bell and Humphrey was not credible. This determination is
properly the province of the district court. See United States v. Mendoza-Gonzalez,
363 F.3d 788, 794 (8th Cir. 2004) (“The district court is in the best position to judge
the credibility of witnesses who testify before it . . . .”). We find the district court did
not clearly err in finding Bell’s statement to be voluntary. Thus, we affirm the district
court’s denial of Bell’s motion to suppress.
B. Sufficiency of the Evidence
Bell challenges the sufficiency of the evidence as to each count of conviction.
“Our standard of review concerning whether the evidence is sufficient to support a
conviction is strict.” United States v. Savatdy, 452 F.3d 974, 976 (8th Cir. 2006).
“We review the evidence in the light most favorable to the government, resolving
evidentiary conflicts in favor of the government, and accepting all reasonable
inferences drawn from the evidence that support the jury’s verdict.” United States v.
Spencer, 439 F.3d 905, 913 (8th Cir. 2006) (internal quotation omitted). We will
overturn Bell's convictions only if no reasonable jury could have found him guilty
beyond a reasonable doubt. See United States v. Stevens, 439 F.3d 983, 987 (8th Cir.
2006). Applying this standard, we conclude there was sufficient evidence to support
Bell’s convictions.
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As to his conviction for possession with intent to distribute crack cocaine, the
government presented evidence that approximately seven grams of crack cocaine was
located in a pants pocket that also contained a wallet with Bell’s identification. The
pants were located in the room where Bell was found naked. The government
presented a written statement in which Bell admitted the crack was his. Officers
experienced with drug trafficking testified seven grams is greater than the amount of
crack one would have for personal use. Also, officers testified that no indicia of
personal use of crack cocaine – such as pipes – were found during the search. In
addition, the jury could consider Bell’s explanation of his use of the term “work,” that
it meant selling crack cocaine, in finding Bell possessed the crack cocaine and had the
requisite intent to distribute it. This evidence provided sufficient grounds for a
reasonable jury to find Bell guilty of possession with intent to distribute crack cocaine.
Regarding his conviction for being a felon in possession of a firearm, Bell
challenges whether there was sufficient evidence to demonstrate he possessed the
firearm in question. Evidence consistent with his possession included the officers’
observation of his movement apparently toward the gun upon their entry into the
room, the location of the gun under Bell’s side of the bed, Humphrey’s initial
statement that the gun belonged to Bell, and Bell’s statement claiming ownership of
the gun. Considering this evidence, a reasonable jury could conclude that Bell, who
is not contesting he is a felon, possessed the revolver charged in the indictment.
The evidence was sufficient to support Bell's conviction for possessing a
firearm in furtherance of a drug trafficking crime, as well. “To secure a conviction
under § 924(c)(1)(A), the government must present evidence from which a reasonable
juror could find a ‘nexus’ between the defendant’s possession of the charged firearm
and the drug crime, such that this possession had the effect of furthering, advancing
or helping forward the drug crime.” United States v. Sanchez-Garcia, 461 F.3d 939,
946 (8th Cir. 2006) (internal quotation omitted). Simply possessing drugs and a
firearm at the same time is insufficient to support a conviction under § 924(c). See
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Spencer, 439 F.3d at 914. However, evidence sufficient for convictions for both
possessing with intent to distribute cocaine base and possessing a firearm as a
prohibited person can be sufficient for a § 924(c) conviction, as well. See United
States v. Johnson, No. 05-3660, 2007 WL 313590, at *5 (8th Cir. Feb. 5, 2007) (“In
light of our determination there was sufficient evidence [the defendant] knowingly
possessed the firearm, and given [the defendant’s] conviction for possession with
intent to distribute cocaine base, we conclude sufficient evidence supports the jury’s
verdict on [the § 924(c)] count as well.”).
Based on the evidence presented at trial, a reasonable jury could find Bell
possessed the revolver in furtherance of his drug trafficking crime. Officers observed
Bell apparently reaching for the revolver when they entered the bedroom. The gun
was proximately located to the stash of crack cocaine in Bell’s pants pocket. In
addition, Sergeant Sanders testified that drug dealers often possess firearms to protect
themselves and their drugs. These facts, while not overwhelming, support an
inference that Bell possessed the revolver in furtherance of his possession with intent
to distribute the crack cocaine. See, e.g., Stevens, 439 F.3d at 989-90 (finding
evidence sufficient to support defendant’s § 924(c) conviction where, among other
things, the weapon was within close proximity to the dealer and the drugs and a
government witness testified to the common use of firearms to protect drugs, drug
dealers, and drug proceeds). Taking, as we must, these facts in the light most
favorable to the verdict, we conclude a reasonable jury could have found Bell guilty
of possessing a firearm in furtherance of a drug trafficking offense beyond a
reasonable doubt.
A defendant challenging the sufficiency of the evidence “confronts a high
hurdle.” Spencer, 439 F.3d at 913 (internal quotation omitted). Bell has failed to
surmount that hurdle. We find there was sufficient evidence supporting each count
of conviction.
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C. Sentencing
“We review de novo a district court’s determination on the grouping of
offenses.” United States v. Rugh, 968 F.2d 750, 755 (8th Cir. 1992). The Guidelines
provide for the grouping of certain offenses to “prevent multiple punishment for
substantially identical offense conduct.” U.S.S.G. Ch. 3, pt. D, introductory cmt. As
such, “[c]onvictions on multiple counts do not result in a sentence enhancement unless
they represent additional conduct that is not otherwise accounted for by the
guidelines.” Id.
Section 3D1.2 outlines when multiple counts shall be treated as a single group.
The overarching principle embodied in § 3D1.2 is that “counts involving substantially
the same harm shall be grouped together into a single Group.” U.S.S.G. § 3D1.2.
One instance where multiple counts are considered to involve the same harm is when
“one of the counts embodies conduct that is treated as a specific offense characteristic
in, or other adjustment to, the guideline applicable to another of the counts.” U.S.S.G.
§ 3D1.2(c). Each of the relevant offenses includes conduct that is treated as specific
offense characteristics in the other offense. Section 2D1.1, the guideline applicable
to the crack offense, calls for a two-level increase in offense level “[i]f a dangerous
weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). Here, Bell
possessed a revolver and it was not “clearly improbable that the [revolver] was
connected with the [crack cocaine] offense.” U.S.S.G. § 2D1.1 cmt. n.3. The
guideline utilized for the felon in possession conviction, § 2K2.1, provides for four-
level increase “[i]f the defendant used or possessed any firearm or ammunition in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5). As demonstrated
by Bell’s conviction for possessing the revolver in furtherance of his crack cocaine
offense, this enhancement is applicable to his offense conduct. Thus, both counts
“embod[y] conduct that is treated as a specific offense characteristic in, or other
adjustment to, the guideline applicable to” the other count and are properly grouped.
U.S.S.G. § 3D1.2(c).
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Because “[f]irearms are the tools of the drug trade providing protection and
intimidation,” United States v. Linson, 276 F.3d 1017, 1019 (8th Cir. 2002), firearm
and drug trafficking offenses are frequently interrelated and result in reciprocal
offense characteristic enhancements. These counts therefore are grouped together
pursuant to § 3D1.2, often without note. See, e.g., Annis, 446 F.3d at 857 n.3
(implying grouping of defendant’s firearm and drug offenses); United States v. Pierce,
388 F.3d 1136, 1137 (8th Cir. 2004) (per curiam) (noting the parties agreed to the
grouping of defendant’s felon in possession and drug trafficking convictions); United
States v. Hellbusch, 234 F.3d 1050, 1052 (8th Cir. 2000) (commenting that dismissed
counts charging methamphetamine distribution and possessing a firearm as a felon
would have been grouped pursuant to § 3D1.2). Other circuits have specifically
recognized the propriety of grouping offenses treated under §§ 2D1.1 and 2K2.1. See,
e.g., United States v. King, No. 06-11696, 2006 WL 3006699, at *2 (11th Cir. Oct.
23, 2006) (unpublished) (upholding the grouping of drug trafficking offenses with a
felon in possession conviction because the gun count “embodies conduct that is
treated as a specific offense characteristic” of the drug counts); United States v.
Versey, 16 Fed. Appx. 500, 502 (7th Cir. 2001) (unpublished) (“Because the felon-in-
possession count embodied conduct (possession of a firearm) treated as a specific
offense characteristic in the guideline applicable to the distribution count, the court
grouped the two counts and adopted the higher offense level . . . .”) (internal citations
omitted).
Grouping of the felon in possession count and the drug count is proper even
though the applicable enhancements are not utilized. The Guidelines prohibit adding
gun-related offense characteristic enhancements for an offense underlying a § 924(c)
conviction (here the drug trafficking offense) because the § 924(c) conviction already
carries statutorily required incremental punishment – a mandatory consecutive 60
month term of imprisonment. See 18 U.S.C. § 924(c); U.S.S.G.§ 2K2.4 cmt. n.4 (“If
a sentence under this guideline is imposed in conjunction with a sentence for an
underlying offense, do not apply any specific offense characteristic for possession,
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brandishing, use, or discharge of [a] . . . firearm when determining the sentence for the
underlying offense.”). Likewise, the offense characteristic enhancement based upon
a related drug trafficking felony is unavailable for a felon in possession conviction
when there is also a § 924(c) conviction. U.S.S.G.§ 2K2.4 cmt. n.4 (noting that a
§ 2K2.1(b)(5) enhancement is not applied because “of the relatedness of [the conduct
justifying the enhancement] to the conduct that forms the basis for the conviction
under . . . § 924(c)”). Nonetheless, each count includes conduct that is “treated as a
specific offense characteristic in” the other offense, and therefore the counts should
be grouped. U.S.S.G. § 3D1.2(c); see, e.g., King, 2006 WL 3006699 at *2 (approving
of the grouping of a felon in possession count with drug trafficking offenses when
there was also a § 924(c) conviction). That the conduct is addressed elsewhere in the
Guidelines does not diminish the linkage between the offenses. The conduct is
“otherwise accounted for by the guidelines” and therefore additional incremental
punishment is unwarranted. U.S.S.G. Ch. 3, pt. D, introductory cmt.
Bell was convicted of three “closely intertwined” but separate offenses arising
from the same conduct. U.S.S.G. Ch. 3, pt. D, introductory cmt. The firearm he was
found guilty of possessing as a felon was the same firearm he was found guilty of
possessing in furtherance of a drug trafficking crime; and he was convicted of the drug
trafficking crime – possession with intent to distribute crack cocaine. While the three
offenses have distinct elements, they do not “represent additional conduct that is not
otherwise accounted for by the guidelines.” Id. Thus, the felon in possession count
and the crack cocaine count should have been grouped together for sentencing
purposes, resulting in an offense level 26.
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III. Conclusion
For the reasons stated herein, we affirm the district court’s denial of the motion
to suppress and affirm Bell’s conviction. The case is remanded for resentencing
consistent with this opinion.
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