United States of America v. Corey Clay

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0352P (6th Cir.)
File Name: 03a0352p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
COREY CLAY,
Defendant-Appellant.
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No. 02-1362
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 01-90014—Marianne O. Battani, District Judge.
Argued: September 12, 2003
Decided and Filed: October 2, 2003
Before: MERRITT, MOORE, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: Natasha D. Thompson, FEDERAL PUBLIC
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.
Patricia C. Uetz, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Rita Chastang, FEDERAL PUBLIC
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.
2 United States v. Clay No. 02-1362
Patricia C. Uetz, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
_________________
OPINION
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RONALD LEE GILMAN, Circuit Judge. Corey Clay was
arrested as part of a drug investigation in Detroit, Michigan.
He was charged in a two-count indictment with possession of
a controlled substance and for being a felon in possession of
a firearm. During his trial, Clay twice moved to dismiss the
charges pursuant to Rule 29 of the Federal Rules of Criminal
Procedure. These motions were denied.
After Clay was convicted by a jury on both counts, the
district court sentenced him to 63 months of imprisonment
and two years of supervised release. Clay contends on appeal
that (1) the evidence was insufficient to establish his guilt,
(2) the district court erred in apprising the jury pool of his
prior drug conviction, and (3) he should not have received a
sentencing enhancement. For the reasons set forth below, we
AFFIRM the judgment of the district court.
I. BACKGROUND
On March 3, 2001, three police officers were investigating
the possibility of drug dealing at an uninhabited apartment in
Detroit, Michigan. They walked up to the open front door,
where they observed suspicious activity inside. The officers
noticed two individuals in the apartment. One of the
individuals, later identified as Clay, ran toward the back of
the apartment and tossed a plastic bag on the floor.
While one officer apprehended Clay, another officer
retrieved the bag, which contained an off-white lumpy
material that one of the officers later identified as crack
cocaine. The third officer searched Clay and found a firearm

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No. 02-1362 United States v. Clay 3
and $575 on his person. A laboratory report showed that the
material weighed 1.1 grams and contained cocaine.
Clay was indicted on one count of possession of “a
controlled substance, to wit: approximately 1.6 grams of a
mixture of substance containing crack cocaine, also known as
cocaine base,” in violation of 21 U.S.C. § 844(a), and on one
count of being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g). (No explanation is found in the record
regarding the discrepancy between the 1.1 grams stated in the
laboratory report and the 1.6 grams alleged in the indictment.)
The government soon thereafter formally notified Clay that,
upon conviction under § 844(a), it would rely upon a prior
conviction “as a basis for a sentence to increased punishment
under 21 U.S.C. § 841(b)(1)(A).” The reference to
§ 841(b)(1)(A) was apparently mistaken, however, because
the amount of illegal drugs allegedly possessed was less than
required to sustain a charge under that section. The prior
conviction identified in the information was later used as the
basis for an enhanced sentence in connection with the
§ 844(a) offense.
Clay’s trial commenced in November of 2001. Prior to jury
selection, the parties stipulated that he was a convicted felon
for purposes of the count relating to being a felon in
possession of a firearm. The district court therefore ruled that
it would not allow any reference to the previous conviction
during trial. Nonetheless, when the court read the
superseding indictment to the prospective jurors, it
inadvertently disclosed to the jury pool that Clay had been
previously convicted of a narcotics offense. Clay’s counsel
objected, but did not request a new jury pool. The district
court overruled the objection.
A jury was selected and the trial proceeded. At the end of
the government’s proof, Clay moved for the case to be
dismissed pursuant to Rule 29 of the Federal Rules of
Criminal Procedure. The district court denied the motion.
Clay made another Rule 29 motion at the close of his proof,
4 United States v. Clay No. 02-1362
which the court again denied. A guilty verdict was returned
on both counts.
The United States Probation Office calculated the
Sentencing Guidelines range to be 63 to 78 months. This
included a four-level increase in the base offense level
because Clay “possessed the firearm in connection with
another felony offense, namely, possession of cocaine base.”
Clay filed an objection to the Presentence Report and a
motion for reconsideration of his Rule 29 motion.
At the sentencing hearing, the district court denied the
motion for reconsideration and found that the four-level
enhancement was applicable. Clay was sentenced to
concurrent terms of imprisonment of 63 months on Count
One and 24 months on Count Two. The court also sentenced
Clay to two years of supervised release.
II. ANALYSIS
A. Rule 29 motions
“A Rule 29 motion is a challenge to the sufficiency of the
evidence. [W]hen the sufficiency of the evidence is
challenged on appeal, the standard of review is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime . . . .” United States v. Jones,
102 F.3d 804, 807 (6th Cir. 1996) (emphasis and alteration in
original) (internal quotation marks omitted). “[T]his court
may conclude a conviction is supported by sufficient evidence
even though the circumstantial evidence does not remove
every reasonable hypothesis except that of guilt.” Id. (internal
quotation marks omitted).
Clay argues that his Rule 29 motions should have been
granted because the government did not prove, as it alleged in
the indictment, that Clay possessed “1.6 grams of a mixture
or substance containing crack cocaine, also known as cocaine

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No. 02-1362 United States v. Clay 5
base . . . .” Instead, Clay points out that the City of Detroit’s
laboratory report, which was stipulated to by Clay and the
government and was entered into evidence, concluded that
“[t]he material weighed 1.10 grams and contained
COCAINE.” (Emphasis in the original.) The government
responds by arguing that the evidence adduced at trial
reflected the fact that the bag contained crack cocaine and
that, in any event, the penalty imposed was no greater than the
maximum allowable period of incarceration for the possession
of 1.1 grams of powder cocaine. It also notes that the City of
Detroit’s laboratory reports do not distinguish between
powder cocaine and crack cocaine, calling both simply
“cocaine.”
No distinction is made between crack and powder cocaine
in 21 U.S.C. § 844(a) either. Instead, this section states that
“[i]t shall be unlawful for any person knowingly or
intentionally to possess a controlled substance . . . .” Thus,
whether Clay possessed crack or powder cocaine, we
conclude that there was sufficient evidence for a rational trier
of fact to find that Clay violated 21 U.S.C. § 844(a). The
district court, therefore, did not err in denying Clay’s Rule 29
motions.
B. Reading of indictment to jury pool
Clay also contends that the panel should reverse his
conviction because the district court read the entire indictment
to the jury pool, which included a reference to his prior drug
conviction. According to Clay, this constituted a “structural
error” warranting reversal. See United States v. Monger, 185
F.3d 574, 578 (6th Cir. 1999) (stating that “structural errors,
. . . [which] infect[] the entire trial process, and necessarily
render[] a trial fundamentally unfair . . . require [the court] to
reverse” a criminal conviction regardless of the strength of the
evidence against the defendant). Monger held that “the
district court’s failure to instruct the jury on the lesser
included offense of simple possession was an intrinsically
harmful structural error which requires us to reverse.” Id.
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(noting that such an error “does not warrant the use of the
harmless-error rule”). Although the government admits that
the district court in the present case erred in reading the entire
indictment, it denies that the error was “structural” and
instead maintains that it was harmless.
This court has applied a harmless-error analysis in similar
situations. See Myers v. United States, 198 F.3d 615, 619 (6th
Cir. 1999) (holding that the district court’s reading to the jury
the nature of the defendant’s prior offenses was harmless
error); United States v. McFerren, No. 96-5458, 1998 WL
180514, at *3-4 (6th Cir. Apr. 8, 1998) (per curiam) (applying
the harmless-error standard to the defendant’s claim that the
district court erred when it read to the jury the indictment that
contained references to his prior convictions); see also United
States v. Turner, 565 F.2d 539, 541 (8th Cir. 1977) (per
curiam) (“[O]nce the trial court had been informed of the
stipulation of counsel, he should have read the indictment to
the jury without reference to the nature of the felony
conviction. However, we do not feel that this error was
unduly prejudicial in light of the substantial evidence of
Turner’s guilt.”).
We conclude that Myers is more applicable to the present
case than Monger. The district court’s inadvertent mistake in
disclosing the nature of Clay’s prior conviction to the jury
pool was not an error of the same magnitude as failing to
instruct the jury on a lesser included offense. In addition, the
evidence against Clay was so overwhelming that it is more
probable than not that the error did not materially affect the
verdict. See United States v. Daniel, 134 F.3d 1259, 1262
(6th Cir. 1998) (“[I]t is well settled that an error which is not
of constitutional dimension is harmless unless it is more
probable than not that the error materially affected the
verdict.”) (internal quotation marks omitted). Clay was
apprehended in an uninhabited apartment under suspicious
circumstances. When the officers entered, he ran to the back
of the apartment and threw a plastic bag containing cocaine
on the floor. A large sum of cash and a firearm were found

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No. 02-1362 United States v. Clay 7
on his person. In light of this evidence, the district court’s
error in mistakenly reading the nature of Clay’s prior drug
conviction to the jury pool was harmless.
C. Sentencing enhancement
Clay’s final contention is that the district court erred when
it enhanced his sentence pursuant to the Sentencing
Guidelines for possessing a firearm during the commission of
a felony drug offense. “[The] district court’s finding that a
defendant possessed a firearm during a drug crime is a factual
finding subject to the clearly erroneous standard of review.”
United States v. Darwich, 337 F.3d 645, 664 (6th Cir. 2003)
(internal quotation marks omitted). “A finding of fact will
only be clearly erroneous when, although there may be some
evidence to support the finding, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed. . . . Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” Id. (internal
quotation marks omitted).
We first note that the government’s superceding
information mistakenly references 18 U.S.C. § 841(b)(1)(A),
under which Clay was never charged. This calls into question
the government’s compliance with the formal notice
requirement of 21 U.S.C. § 851, which states:
No person who stands convicted of an offense under this
part shall be sentenced to increased punishment by
reason of one or more prior convictions, unless before
trial, or before entry of a plea of guilty, the United States
attorney files an information with the court (and serves
a copy of such information on the person or counsel for
such person) stating in writing the previous convictions
to be relied upon . . . .
Clay, however, failed to raise this issue either in the district
court or on appeal. He has therefore forfeited any claim of
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governmental error. See United States v. Dodson, 288 F.3d
153, 162 (5th Cir. 2002) (holding that, by failing to object, the
defendant forfeited his right to complain of the government’s
failure to inform him of its intent to seek an enhanced
sentence upon conviction of a § 844 offense).
“[B]efore an appellate court can correct an error not raised
at trial, there must be (1) error, (2) that is plain, and (3) that
affect[s] substantial rights. If all three conditions are met, an
appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affect[s] the
fairness, integrity, or public reputation of judicial
proceedings.” Johnson v. United States, 520 U.S. 461, 466-
67 (1997) (internal quotation marks omitted). Although the
government’s notice erroneously cited to § 841(b)(1)(A), it
did so immediately after indicating that the sentence
enhancement would be sought in connection with“the charge
in Count Two of the Indictment in this case,” which specifies
a § 844(a) offense. Additionally, the superceding information
correctly identified the prior conviction upon which the
government would rely in seeking the enhancement in
connection with the § 844(a) offense, and Clay stipulated to
the validity of that conviction. We conclude, therefore, that
the erroneous citation to § 841(b)(1)(A) did not seriously
affect the fairness of Clay’s trial, and we proceed to address
the merits of his argument concerning the sentencing
enhancement.
United States Sentencing Guidelines § 2K2.1(b)(5)
provides that a defendant’s base offense level should be
increased by four levels “[i]f the defendant used or possessed
any firearm or ammunition in connection with another felony
offense.” “This section can only apply if the Government
establishes by a preponderance of the evidence that the
defendant possessed or used a gun in connection with another
felony.” United States v. Hardin, 248 F.3d 489, 495 (6th Cir.
2001).

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No. 02-1362 United States v. Clay 9
Under the Controlled Substances Act, a drug-related
offense punishable by a term of imprisonment greater than
one year under any federal law is a felony offense. 21 U.S.C.
§ 802(44). Conviction for simple possession under § 844(a)
of the Controlled Substances Act that follows “a prior
conviction for any drug, narcotic, or chemical[] offense
chargeable under the law of any State” is punishable by a
maximum term of imprisonment of two years. Because Clay
had a prior conviction for a narcotics offense under Michigan
law, his violation of § 844(a) qualified as a felony.
The government maintains that the evidentiary burden
shifts to the defendant once the government shows that the
defendant possessed or used a gun in connection with another
felony. Citing United States v. McGhee, 882 F.2d 1095 (6th
Cir. 1989), the government contends that once it makes this
showing, the defendant must “prove that it was clearly
improbable that the firearm was connected to the other
offense.” McGhee, however, involved a sentencing
enhancement pursuant to § 2D1.1(b) of the Sentencing
Guidelines, which makes it inapposite to the present case.
Rather than seek the two-level enhancement provided for in
§ 2D1.1(b), the government sought to apply the four-level
enhancement under § 2K2.1(b)(5). This case is therefore
controlled by Hardin, not McGhee. In Hardin, this court
stated that the “clearly improbable” requirement does not
apply in a case where the defendant’s sentence was enhanced
pursuant to § 2K2.1(b)(5), noting that “§ 2D1.1 applies a
burden-shifting component that is not present in
§ 2K2.1(b)(5).” 248 F.3d at 496. The full burden of proof on
the particular enhancement sought therefore remained with
the government.
Keeping in mind that “the presence of drugs in a home
under a firearm conviction does not ipso facto support
application of a § 2K2.1(b)(5) enhancement,” id. at 501, the
district court must examine the specific facts of the case
before it to determine if the government established by a
preponderance of the evidence that the defendant possessed
10 United States v. Clay No. 02-1362
or used a gun in connection with another felony. Although
the “possession of firearms that is merely coincidental to the
underlying felony offense is insufficient to support the
application of § 2K2.1,” this court has expressly adopted the
“fortress theory, which concludes that a sufficient connection
is established if it reasonably appears that the firearms found
. . . are to be used to protect the drugs or otherwise facilitate
a drug transaction.” United States v. Ennenga, 263 F.3d 499,
503 (6th Cir. 2001) (internal quotation marks omitted).
Clay was apprehended in an uninhabited apartment late at
night with a bag of cocaine and a large amount of cash on his
person. He testified that he was in the apartment to have his
hair braided by a woman whom he had met “on the streets,”
although the alleged hairstylist was not in the building.
Finally, Clay was carrying a firearm. See Hardin, 248 F.3d
at 499 (noting that firearms “are ‘tools of the trade’ in drug
transactions”). Based upon this set of facts, the district court
did not clearly err when it found that the government had
proven by a preponderance of the evidence that Sentencing
Guidelines § 2K2.1(b)(5) was satisfied.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.

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