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United States v. Chapman

United States Court of Appeals, Fifth Circuit

March 10, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee Cross-Appellant
JERMAINE J. CHAPMAN, also known as Dump Truck, CHARLES BOYER, also known as Slim, Defendants-Appellants JEFFERY D. PERRY, Defendant-Appellant Cross-Appellee

         Appeals from the United States District Court for the Middle District of Louisiana

          Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.

          KING, Circuit Judge:

         Defendants Jeffery Perry, Jermaine Chapman, and Charles Boyer appeal their convictions for various offenses related to their participation in a drug trafficking conspiracy. The Government cross-appeals Perry's sentence as to his dual firearms convictions under 18 U.S.C. § 924(c), arguing that the district court erred in failing to apply the 25-year mandatory minimum sentence for second or subsequent § 924(c) convictions to one of Perry's convictions. Finding error only on the latter issue, we AFFIRM in part and VACATE and REMAND in part.


         A. Facts

         This case centers on a cocaine and crack dealing organization operated by Defendant Jeffery Perry and based in Baton Rouge, Louisiana. Perry's organization consisted of many operatives, including Defendants Jermaine Chapman (aka "Dump Truck") and Charles Boyer (aka "Slim"), who assisted Perry by purchasing drug-making supplies, weighing and bagging the drugs, retrieving drugs from storage locations, interacting with customers who were buying drugs, and disposing of kilogram wrappers. Over the years, Perry used various houses, referred to as "click houses, " in South Baton Rouge, which were largely owned by his family, as distribution centers and headquarters for the organization. Chapman and Boyer at various times resided in the click houses, along with other operatives in Perry's organization. Perry regularly used the kitchens of the click houses to cook crack. Customers who came to the click houses to purchase drugs sometimes used a gun as payment, and Perry stored some of the bartered guns in at least one of the click houses, 221 Evergreen Street. Perry had secret compartments for storing drugs installed over a doorway and under the kitchen sink of the Evergreen Street click house. Chapman knew about and used the secret compartments.

         Perry and his associates had several encounters with the Baton Rouge Police Department (BRPD) and Drug Enforcement Administration (DEA) over the years, including selling drugs to DEA confidential informants. BRPD also conducted periodic surveillance and executed multiple search warrants at the click houses, in sum seizing crack, cocaine, drug paraphernalia, large quantities of cash, and guns. In addition to selling drugs, Perry and his operatives also engaged in robbery, carjacking, and unlawful possession of guns. In September 2011, after a multi-year investigation by the DEA and the BRPD, Perry and Chapman were arrested while driving from Houston to Baton Rouge in two separate vehicles with two kilograms of cocaine in Chapman's vehicle. Boyer was later arrested in California and extradited to Louisiana for trial.

         B. Trial

         In July 2013, the grand jury returned a 19-count second superseding indictment against Perry, Chapman, Boyer, and five other associates.[1] They were charged with conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base and 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 846(a)(1). Perry and Boyer were charged with carjacking and use of a firearm in commission thereof. Perry and Chapman were each also charged with other drug possession and distribution crimes, along with several gun-related crimes. In relevant part, Count 6 of the indictment charged Perry with knowingly discharging a firearm during and in relation to drug trafficking activity-namely, the drug conspiracy (charged in Count 1) and a carjacking incident (charged in Count 5), in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and § 924(c)(2). And Count 10 of the indictment charged Perry and Chapman each with knowingly possessing a firearm in furtherance of drug trafficking activity-namely, the drug conspiracy (charged in Count 1) and possession with intent to distribute cocaine and 28 grams or more of cocaine base (charged in Count 9)-in violation of 18 U.S.C. § 924(c)(1)(A) and § 924(c)(2).

          Prior to trial, Boyer moved to sever his trial from that of his co-defendants. Boyer noted that he was charged with only three counts of the indictment, was mentioned in only four of the 36 paragraphs supporting the conspiracy charge, and did not participate in the conspiracy for its duration because he moved to California and left the conspiracy in 2010, the year before the indictment was returned. Given his relatively minor role, Boyer argued that he would be unfairly prejudiced by being jointly tried alongside the other defendants. The district court denied the motion, noting the "well-recognized preference . . . for joint trials of defendants who are indicted together." The district court concluded that any possible prejudice to Boyer would be sufficiently mitigated through jury instructions and the court's continued monitoring of the case as it progressed to trial.

         The trial commenced in September 2014. After five days of trial, the presiding district judge became ill, and Judge Shelly Dick replaced him as the judge presiding over the trial after certifying that she was familiar with the record. See Fed. R. Crim. P. 25(a)(2). After testimony from over 40 witnesses, including testimony from six co-defendants who had pleaded guilty pursuant to plea agreements, and the introduction of voluminous amounts of evidence, the trial concluded on September 22, 2014.[2] The district judge instructed the jury to separately consider each defendant and count, as well as the evidence as it pertained to each defendant and count. The judge also instructed the jury on Pinkerton liability, see Pinkerton v. United States, 328 U.S. 640 (1946), explaining: "A conspirator is responsible for offenses committed by other conspirators if the conspirator was a member of the conspiracy when the offense was committed, and if the offense was committed in furtherance of, or as a foreseeable consequence of, the conspiracy." The jury returned its verdict on September 23. In relevant part, the jury found Perry, Chapman, and Boyer each guilty of conspiracy (Count 1), found Perry guilty of two firearms offenses (Counts 6 and 10, which both charged violations of 18 U.S.C. § 924(c)), and found Chapman guilty of one firearms offense (Count 10).[3] And Boyer was found not guilty of the other two counts with which he was charged, both related to carjacking.

         C. Motions for New Trials

         On October 7, Boyer moved for a post-trial judgment of acquittal or, in the alternative, a new trial. He argued that the evidence did not support his conviction for conspiracy and that he was unfairly prejudiced by being tried alongside his more culpable co-defendants. The district court denied the motion, concluding that substantial evidence supported Boyer's conspiracy conviction and there were "no extraordinary circumstances" that would justify a new trial.

         On March 10, 2015, Perry filed a "Motion for Evidentiary Hearing and New Trial." Perry claimed that, after the trial concluded, he discovered new evidence related to one of the counts under which he was convicted-Count 10-for possession of two firearms in furtherance of drug trafficking activity. This charge related to guns found in 2010 in the secret compartment under the kitchen sink of the Evergreen Street click house. In support of his motion, Perry attached an undated declaration by his counsel stating that a man arrested at the click house at the time the police discovered the guns, John West, had revealed to counsel that he owned the guns and stored them at the Evergreen click house "without . . . Perry's knowledge" and with the intent to sell them. Based on this allegedly new evidence, Perry requested an evidentiary hearing and a new trial. Chapman, who was also convicted on Count 10, successfully moved to adopt Perry's motion as filed on his own behalf. The district court denied the joint motion without a hearing, concluding that the allegedly new evidence was not likely to result in either defendant's acquittal on Count 10. The court found that, contrary to indicating Perry's and Chapman's innocence, this evidence "strongly support[ed] the notion that West was a co-conspirator . . . [i]n which case, even if Perry and Chapman did not own the gun and were ignorant of its presence, they would still be criminally liable under the Pinkerton doctrine."

         D. Sentencing

         Perry's sentencing was held on August 19, 2015. At issue, in relevant part, were the sentences for his dual firearms convictions in violation of 18 U.S.C. § 924(c)-Count 6 (discharge of a firearm during and in relation to the drug conspiracy and a carjacking incident) and Count 10 (knowingly possessing a firearm in furtherance of the drug conspiracy and possession with intent to distribute). The pre-sentence report stated that the mandatory minimum terms for these convictions were ten and five years, respectively. The Government objected, arguing that Count 10 constituted a second conviction under 18 U.S.C. § 924(c) and therefore the mandatory minimum for Count 10 should be 25 years. See 18 U.S.C. § 924(c)(1)(C)(i) ("In the case of a second or subsequent conviction under [18 U.S.C. § 924], the person shall . . . be sentenced to a term of imprisonment of not less than 25 years . . . ."); Deal v. United States, 508 U.S. 129, 131-33 (1993) (holding that § 924(c)'s enhanced penalty for a second or subsequent conviction applies when the defendant is convicted of multiple § 924(c) counts in a single proceeding). The probation officer agreed with these objections. The district court, however, declined to impose the 25-year mandatory minimum sentence on Count 10, instead imposing the five-year sentence originally recommended in the pre-sentence report (plus the ten-year sentence on Count 6). The court reasoned that it could not impose the 25-year mandatory minimum because it was unable to determine "which [§ 924(c)] conviction the jury concluded first because of the secrecy of the jury deliberations, " and thus the court did not know to which conviction, Count 6 or Count 10, the 25-year mandatory minimum should be applied. Perry was ultimately sentenced to life imprisonment plus 15 years. Chapman was sentenced to a 45-year term of imprisonment and Boyer to a 10-year term of imprisonment.

         II. PERRY'S SENTENCE UNDER 18 U.S.C. § 924(c)

         The Government cross-appeals the district court's calculation of the mandatory minimum sentence on one of Perry's two convictions under 18 U.S.C. § 924(c), arguing that the district court erred in failing to impose the 25-year mandatory minimum. We review the district court's interpretation and application of § 924(c) de novo. United States v. Kaluza, 780 F.3d 647, 653 (5th Cir. 2015).

         Perry was convicted of two counts under 18 U.S.C. § 924(c). Section 924(c) provides additional penalties for "any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A). Ordinarily, the mandatory minimum sentence for a first conviction under § 924(c) is five years.[4] Id. § 924(c)(1)(A)(i). The mandatory minimum for a "second or subsequent conviction" under § 924(c) is 25 years.[5]Id. § 924(c)(1)(C)(i). The Supreme Court, in Deal v. United States, held that this 25-year mandatory minimum applies when a defendant is convicted of multiple § 924(c) counts in a single proceeding. 508 U.S. at 131-33. It explained that "conviction" as used in § 924(c)(1) means "the finding of guilt by a judge or jury" rather than "the entry of a final judgment on that finding." Id. at 131-32. If "conviction" had this latter meaning, it would render the statute incoherent because a judgment of conviction necessarily includes an already imposed sentence, and an already imposed sentence cannot be enhanced. Id. at 132. The Court further reasoned that "findings of guilt on several counts are necessarily arrived at successively in time, " and thus, the 25-year enhanced penalty could be applied to a second § 924(c) conviction within the same proceeding. Id. at 132-33 & n.1.

         At Perry's sentencing, the district court recognized Deal's holding, but explained that Deal "did not address whether . . . when there are two convictions in the same charging instrument[, ] how the court is to consider which conviction came first and which conviction came second." This issue was relevant for Perry's sentencing because one of his § 924(c) convictions (Count 10) carried a mandatory minimum of five years since it was for mere possession of a firearm, while his other § 924(c) conviction (Count 6) carried a mandatory minimum of ten years since it was for discharge of a firearm. The district court explained that, due to the secrecy of jury deliberations, it had no way of determining which of the two convictions the jury arrived at first, and thus, it could not determine to which of these convictions the 25-year enhanced penalty should apply. Accordingly, the district applied the rule of lenity and "decline[d]" to apply the enhanced penalty to either of Perry's two § 924(c) convictions.

         The district court erred in declining to apply the 25-year enhanced penalty to Perry's second conviction under § 924(c). Under Deal's reasoning, Perry's two convictions under § 924(c) necessarily included a first § 924(c) conviction and a second § 924(c) conviction. See Deal, 508 U.S. at 133 n.1 ("[F]indings of guilt on several counts are necessarily arrived at successively in time."). It is true that ยง 924(c) is silent on how multiple convictions should be ...

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