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United States v. Abbott

July 28, 2009

UNITED STATES OF AMERICA,
v.
KEVIN ABBOTT, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 05-cr-00333) District Judge: Honorable Cynthia M. Rufe.

The opinion of the court was delivered by: Hardiman, Circuit Judge.

PRECEDENTIAL

Argued March 3, 2009

Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

Kevin Abbott appeals his conviction and sentence following a jury trial. Abbott seeks a new trial, claiming the District Court erred when it denied his motion to suppress evidence and granted the Government's motion in limine to admit his prior conviction into evidence. Abbott also claims the District Court erred by imposing consecutive mandatory minimum sentences of fifteen years pursuant to 18 U.S.C. § 924(e) and five years pursuant to 18 U.S.C. § 924(c). For the reasons that follow, we will affirm.

I.*fn1

Acting on a tip that a black male was selling illegal drugs on the 1700 block of Fontain Street, the Philadelphia Police Department arranged for a confidential informant to make controlled purchases of heroin. On September 21 and 22, 2004, the informant approached a man later identified as Michael Grant, who was standing in front of 1739 Fontain Street (the Premises), and offered cash to Grant in exchange for drugs. Grant then entered the Premises and returned with heroin.

Also on September 22, 2004, but before the controlled purchase that day, police obtained a warrant to search the Premises that authorized them to seize drugs, drug paraphernalia, money, and weapons. The warrant also authorized the search of "all persons present who may be concealing narcotics or other illegal contraband." In the affidavit of probable cause, a police officer described the controlled purchase on September 21 in detail and stated that in his experience, "defendants [] frequently sell and stash narcotics from inside a location."

Before police executed the warrant, they arranged a third controlled purchase for September 23, 2004. On that day, Grant said he had no heroin, so the informant requested crack cocaine, which Grant retrieved from an abandoned lot. Shortly after the exchange, police returned to execute the search warrant and they found Grant in front of the Premises. As Grant was being arrested, Appellant Abbott - who was standing in the doorway of the Premises as police approached - slammed the door when officers identified themselves. The police broke down the door, entered the house, and arrested Abbott as he was trying to escape through a kitchen window. At the time of his arrest, Abbott had $617 in cash (including $20 in prerecorded buy money) as well as a key to the front door of the Premises, a small bag of marijuana, and a false driver's license. In addition, ultraviolet light revealed residue from the marked bills on Abbott's hands.

A search of the Premises uncovered drugs, drug paraphernalia, and two handguns. Much of the contraband and tools of the drug trade were in plain view in a front room, including codeine syrup, empty bottles, a scale, and crack cocaine. The handguns were found hidden behind furniture and inside a closet.

II.

On June 14, 2005, a federal grand jury returned a four-count indictment against Abbott and Grant, charging them with:

(1) conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846; (2) possession of more than five grams of cocaine base with intent to distribute, and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (3) possession of a firearm in furtherance of a drug trafficking crime, and aiding and abetting, in violation of 18 U.S.C. §§ 924(c)(1) and (c)(2); and (4) possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g) and 924(e).

Grant pleaded guilty, but Abbott went to trial. Before the jury was empaneled, Abbott filed a motion to suppress evidence, arguing that the search was illegal because the "all persons" warrant was overbroad. For its part, the Government filed a motion in limine to admit Abbott's prior felony conviction into evidence under Federal Rule of Evidence 404(b). The District Court denied Abbott's motion to suppress and granted the Government's motion in limine.

At trial, the Government called Grant as a witness against Abbott. Grant testified that he and Abbott sold drugs together for several months, and that he had seen Abbott carry one of the handguns recovered from the house. In addition, the Government called a police officer who had arrested Abbott three years earlier for selling cocaine in front of the Premises as evidence of Abbott's knowledge or intent pursuant to Rule 404(b). The District Court issued a cautionary instruction to the jury before the officer testified in this regard. The jury convicted Abbott of all four charges.

The District Court sentenced Abbott to what it deemed the statutory mandatory minimum: a total of 240 months imprisonment, comprised of 180 months on Count 4 (possession of a firearm by a convicted felon in violation of §§ 922(g) and 924(e)); and 60 months on Count 3 (possession of a firearm in furtherance of a drug trafficking crime in violation of §§ 924(c)(1)(A) and (c)(2)).*fn2

Abbott did not dispute that his 180-month sentence on Count 4 was mandated by the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA), because he had three previous convictions for "violent felon[ies] or [] serious drug offense[s]." § 924(e)(1). The District Court found that Abbott faced an additional 60 months incarceration on Count 3 for possession of a firearm in furtherance of a drug trafficking crime pursuant to § 924(c)(1)(A), which must be imposed "in addition to the punishment . . . for [the] drug trafficking crime." Id. (emphasis added). As the District Court also noted, § 924(c) provides that "no term of imprisonment imposed on a person under [§ 924(c)] shall run concurrently with any other term of imprisonment imposed on the person." § 924(c)(1)(D)(ii).

Despite this language, Abbott objected to his sentence on the basis of § 924(c)'s prefatory clause, which begins: "Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law . . . ." § 924(c)(1)(A). Because ACCA subjected him to a 180-month minimum sentence, see § 924(e), Abbott argued that he was exempt from the consecutive minimum sentence imposed by § 924(c). The District Court rejected Abbott's argument, noting that several other courts of appeals have held that "the plain meaning of section 924(c) clearly states that a term of imprisonment imposed under section 924(c) cannot run concurrently with any other term of imprisonment imposed for any other crime, including a sentence under [ACCA]." United States v. Abbott, No. 05-333-1, 2008 WL 540737, at *2 n.8 (E.D. Pa. Feb. 27, 2008). Abbott filed this timely appeal and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

III.

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