United States of America v. Gaylord Sparrow

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3571
UNITED STATES OF AMERICA
v.
GAYLORD SPARROW,
Appellant
On Appeal from the
United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal Action No. 99-cr-00290
(Honorable Harvey Bartle, III)
Submitted Under Third Circuit LAR
34.1(a)
March 23, 2004
Before: ROTH, AMBRO, and
CHERTOFF, Circuit Judges
(Opinion filed June 15, 2004 )
Stephen J. Binhak, Esq.
3103 Philmont Avenue
Huntingdon Valley, PA 19006
Attorney for Appellant
Patrick L. Meehan
United States Attorney
Laurie Magid
Deputy United States Attorney
Emily McKillip
Assistant United States Attorney
Judy Goldstein Smith
Assistant United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT
AM BRO, Circuit Judge
Gaylord Sparrow seeks a writ of
habeas corpus in regard to his conviction
and sentence under 18 U.S.C. § 924(c) —
possession of a firearm in furtherance of a
drug trafficking crime. He argues that the
facts of the case do not support his
conviction. We disagree and affirm the
District Court’s decision to deny his
habeas petition.
I. Factual and Procedural Background
Sparrow sold marijuana out of a
convenience store on Chew Avenue in
Philadelphia. Acting on complaints from
citizens, the Philadelphia police conducted
surveillance on the store. A search
warrant was obtained and executed in
March 1999. During the search, police
found a concealed compartment under the
floor tiles behind the counter. The
compartment contained nine large Ziploc
bags of marijuana, $140 in cash and a

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loaded Jennings .22 caliber pistol.1 In
addition, a key to the store was found in
Sparrow’s pocket, and he was the only
tenant on the lease. Sparrow admitted
possession of the gun. He now alleges,
however, that the police had to pry the
floor tiles up with a crowbar to gain access
to this compartment.
After spending ten months as a
fugitive, Sparro w u ltim a te ly w as
apprehended and pled guilty to: (1) one
count of distribution of marijuana and one
count of possession with intent to
distribute marijuana, both in violation of
21 U.S.C. § 841(a)(1); (2) two counts of
being a felon in possession of a firearm, 18
U.S.C. § 922(g); and (3) possession of a
firearm in furtherance of a drug trafficking
crime, 18 U.S.C. § 924(c). The District
Court imposed a sentence of sixty months
imprisonment for the distribution and felon
in possession counts and a consecutive
sixty-month sentence for the § 924(c)
count. Sparrow appealed his sentence (on
an issue unrelated to his current petition)
and we affirmed the judgment of the
District Court in July 2001.
Sparrow then filed a petition for a
writ of habeas corpus pursuant to
28 U.S.C. § 2255, alleging ineffective
assistance of counsel. He argues that the
facts established in the plea agreement and
hearing were insufficient to sustain his §
924(c) conviction. Therefore, he contends
it was error for counsel to permit him to
plead guilty to this count. The District
Court denied Sparrow’s petition and his
request for a certificate of appealability.
We granted the request for a certificate of
appealability on “whether the facts of the
case support a conviction for possession of
a gun in furtherance of a drug trafficking
crime.”2
II. Standard of Review
To the extent this case turns on
statutory interpretation, such as the legal
requirements for proving a § 924(c)
conviction, we exercise plenary review.
United States v. Cepero, 224 F.3d 256, 258
(3d Cir. 2000) (en banc); see also United
States v. Mackey, 265 F.3d 457, 460 (6th
Cir. 2001) (discussing § 924(c)). Whether
Sparrow’s possession of a firearm was in
furtherance of his drug trafficking
activities, however, is a sufficiency of the
evidence question. United States v.
Lomax, 293 F.3d 701, 705 (4th Cir. 2002),
cert. denied, 537 U.S. 1031 (2002); United
States v. Ceballos-Torres, 218 F.3d 409,
411 (5th Cir. 2000). Therefore, we
examine the “totality of the evidence, both
direct and circumstantial,” and must credit
“all available inferences in favor of the
government.” United States v. Gambone,
1 While not relevant to the resolution of
this case, the search also uncovered the
following: (1) two large bags of marijuana
and forty dollars on the store counter-top,
and (2) thirty-one large bags of marijuana,
fifty-seven small packets of marijuana and
a scale above the steps leading to the
cellar.
2 We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253.

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314 F.3d 163, 170 (3d Cir. 2003) (citations
omitted), cert. denied, 124 S. Ct. 67
(2003).
III. Analysis
Sparrow argues that possession of
the loaded pistol was not in furtherance of
his drug trafficking crimes because an
insufficient factual nexus exists between
the two. Although our Court has not
decided this issue in a precedential
opinion3, the facts of this case and a
review of relevant case law satisfy us that
the e vi de nc e s up p or ts Sp ar ro w ’s
conviction.
Under § 924(c), the “mere
presence” of a gun is not enough. “What
is instead required is evidence more
specific to the particular defendant,
showing that his or her possession actually
furthered the drug trafficking offense.”
Ceballos-Torres, 218 F.3d at 414; see also
Mackey, 265 F.3d at 462 (stating “that the
possession of a firearm on the same
premises as a drug transaction would not,
without a showing of connection between
the two, sustain a § 924(c) conviction”).
Put another way, the evidence must
demonstrate that possession of the firearm
advanced or helped forward a drug
trafficking crime. Lomax, 293 F.3d at
705; Ceballos-Torres, 218 F.3d at 414. In
making this determination, the following
nonexclusive factors are relevant:
the type of drug activity that
i s b e i n g c o n d u c t e d ,
accessibility of the firearm,
the type of the weapon,
whether the weapon is
stolen, the status of the
possession (legitimate or
illegal), whether the gun is
loaded, proximity to drugs
or drug profits, and the time
and circumstances under
which the gun is found.
Id. at 414-15; see also Lomax, 293 F.3d at
705; United States v. Timmons, 283 F.3d
1246, 1253 (11th Cir. 2002), cert. denied,
537 U.S. 1004 (2002); Mackey, 265 F.3d
at 462.
Sparrow’s argument is premised on
the fact that the pistol was found
underneath the floor tiles. Because
(according to Sparrow) the police needed
a crowbar to gain access to the secret
compartment, the firearm could not have
been in furtherance of his drug trafficking
activities. See Mackey, 265 F.3d at 462
(stating “the firearm must be strategically
located so that it is quickly and easily
available for use” (citation omitted));
United States v. Lawrence, 308 F.3d 623,
630 (6th Cir. 2002) (reversing § 924(c)
conviction when firearm was found
unloaded, in a cupboard and “wrapped in
the same newspaper in which it was
covered at the time of delivery”); United
States v. Iiland, 254 F.3d 1264, 1274 (10th
Cir. 2001) (reversing conviction because
the Government produced “no evidence
that the gun and drugs were ever kept in
the same place or that [the defendant] ever
3 We did address it, however, in a not
precedential opinion–United States v.
Morgan, 33 Fed. Appx. 603 (3d Cir.
2002).

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kept the gun accessible when conducting
drug transactions”).
While the location of a firearm is
a d m i t t e d l y r e l e v a n t , im m e d i a t e
accessibility at the time of search or arrest
is not a legal requirement for a § 924(c)
conviction. The only court to state or
imply this is Mackey, but its statement
must be analyzed in context. See 265 F.3d
at 462 (stating that accessibility and the
Ceballos-Torres factors merely help “to
distinguish possession in furtherance of a
crime from innocent possession of a
wall-mounted antique or an unloaded
hunting rifle locked in a cupboard”). Even
the Sixth Circuit does not interpret its
Mackey decision as requiring immediate
accessibility. United States v. Nance, 40
Fed. Appx. 59, 66 (6th Cir. 2002) (“One
way to demonstrate ‘possession in
furtherance’ is by showing the guns were
strategically located for quick and easy
use. The Mackey court also recognized as
helpful the [Ceballos-Torres] factors . . . .”
(emphasis added) (citations omitted)), cert.
denied, 537 U.S. 989 (2002).
In fact, a number of courts have
upheld § 924(c) convictions when the
firearm in question was not easily or
immediately accessible. See United States
v. Garner, 338 F.3d 78, 80-81 (1st Cir.
2003) (affirming conviction when firearms
and drugs were found in a hole in a wall of
a building’s common basement and the
defendant was selling drugs out of an
apartment in the building), cert. denied,
124 S. Ct. 948 (2003); United States v.
Luciano, 329 F.3d 1, 3-6 (1st Cir. 2003)
(affirming conviction when a firearm and
drugs were found in a ceiling crawlspace,
requiring the agent to stand on a chair and
climb into the crawlspace); Morgan, 33
Fed. Appx. at 605-606 (affirming
conviction when firearms and drugs were
found together in a drop ceiling while the
defendant was away from his apartment);
Bressi v. United States, No. Civ. A. 01-
407, 2001 WL 395289 (E.D. Pa. Apr. 5,
2001) (denying a habeas petition when a
firearm and drugs were found in a locked
safe).
Examining the facts of the case,
many of the Ceballos-Torres factors are
satisfied. As a prior felon, Sparrow may
not legally possess a firearm. In addition,
the firearm in question was loaded, found
in a public store and kept in the same floor
compartment as nine large Ziploc bags of
marijuana and $140 in cash. Even
assuming (as Sparrow claims) the firearm
was not easily accessible, it was
strategically located. The gun was placed
so that it would be immediately available
for Sparrow’s protection whenever he
retrieved drugs or money from the floor
compartment. Therefore, it is reasonable
to assume the firearm was placed in the
floor compartment for that purpose and
was possessed in furtherance of Sparrow’s
drug activities.
* * * * *
In this context, sufficient evidence
exists to support Sparrow’s § 924(c)
conviction. As such, his attorney’s advice
to plead guilty does not constitute
ineffective assistance of counsel. His
petition for a writ of habeas corpus is

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denied and the District Court’s decision is
affirmed.

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