Appeal from the United Stated District Court for the Middle District of Pennsylvania (D.C. Crim No. 92-cr-00172)
Before: Mansmann, Cowen, and Alito, Circuit Judges
The opinion of the court was delivered by: Alito, Circuit Judge.
This case requires us to decide whether the district court properly denied prisoner Ramos's 28 U.S.C. § 2255 motion alleging that the evidence presented at trial was insufficient to support his conviction under 18 U.S.C. § 924(c)(1) in light of the Supreme Court's interpretation of that provision in United States v. Bailey, 116 S. Ct. 501 (1995).1 We conclude that the evidence was sufficient, and we therefore affirm.
Ramos was indicted and tried before a jury for conspiracy to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1); distribution in excess of 100 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; distribution in excess of 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and using and carrying firearms during and in relation to drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2.
The evidence at trial showed that Ramos and his co- conspirators, including Roman Blanco and two men called "Chemono" and "Pappitto," participated in a conspiracy that sold drugs in a second-floor apartment at 227 South Queen Street in York, Pennsylvania. Ramos and Blanco rented the third-floor apartment of the same building to store the drugs being sold in the apartment below. Two firearms, a sawed-off shotgun and a .357 magnum revolver, were also stored in the third-floor apartment. Only Ramos and Blanco had access to the third-floor apartment.
At trial, two witnesses testified that at times they saw firearms in the second-floor apartment. Candida Valentin testified that she saw a firearm in that apartment on one occasion:
Q: When you went to the second floor apartment was
there ever any time when you saw any weapons?
Q: Do you recall when that would have been?
A: No, it's been a long time.
Q: What do you remember about seeing the weapons
A: Well, it was a weapon.
Q: A weapon. Can you describe it?
A: And it was a handgun and he told me he had bought it and I wanted to see it out of curiosity, "Tony," okay and he showed it to me. I had it in my hands and "Johnnie" didn't like the idea of me having it in my hands. He told him to take it away from me. That was the only time I seen it.
The second witness, Albert Lee King, Jr., testified that he saw firearms in the second-floor apartment while purchasing drugs there. He stated that he saw weapons (a large caliber silver handgun and a sawed-off shotgun) lying on the table when he went to the apartment. He also testified that he saw a man called "Tony" pick up a gun and that a "tall fellow had a shotgun in his hand one time."
Without objection, the district court instructed the jury in accordance with our court's interpretation of the concept of "use" under § 924(c)(1). See United States v.
Theodoropoulos, 866 F.2d 587, 597 (3d Cir. 1989). The district court stated:
It may be that a person used a firearm during and in relation to a drug trafficking crime if you find that the circumstances surrounding the presence of a firearm in a place where drugs are traded suggest that the firearm was located so as to be quickly and easily available for use during drug transactions.
The presence of a loaded firearm in a place where drugs are possessed with an intent to distribute may be sufficient to prove that a firearm was used during ...