Opinion
CRIMINAL ACTION NO. 99-093 SECTION "A"
October 10, 2000
Claude Kelly, Counsel for Defendant, Bourgeois.
ORDER AND REASONS
Before the Court is an application for relief pursuant to 28 U.S.C. § 2255 filed by the defendant, Keith Bourgeois ("Bourgeois") Defendant's contentions in his application for relief are that: (1) his conviction was obtained pursuant to a plea of guilty which was unlawfully induced and not made voluntarily or understandingly with full knowledge of the consequences of his plea; (2) petitioner did not "use" a firearm in connection with distribution of heroin and was unlawfully sentenced under § 2K2.1(b)(5); and (3) ineffective assistance on counsel based upon (a) his failure to explain, prior to entering the plea and at sentencing, that impact of 2K2.1(b)(5) as it related to the facts of his case and (b) defense counsel's failure to argue against the four (4) point enhancement since it was being imposed in contradiction of the facts.
Via formal reply, petitioner has advised the Court that this is the crux of Section 2255 claims.
The Government filed formal opposition to the defendant's section 2255 motion noting that the defendant admitted all of the elements of the crime and signed the factual basis, which is reiterated in the context of the Government's opposition. A copy of the factual basis which was signed and made part of the record of these proceedings is attached hereto. The Government submits that the rearraignment proceeding conducted by this Court evinces but one conclusion — that defendant's plea was lawful in that it was made knowingly, voluntarily and with full knowledge of the consequences of his plea based upon the facts as fully set forth in the factual basis, including the facts relevant to the seizure of the two firearms along with "a bundle and a half" (i.e., 79 papers) of heroin from the defendant's apartment.
The Government reminds the Court that the defendant was fully advised at both his arraignment and rearraignment of the maximum possible penalty, the elements of the offense, his constitutional rights, the quantity of heroin attributed to him, and the fact that he possessed a firearm as a previously convicted felon. The Government notes that the signed factual basis at page 2 makes it abundantly clear that the defendant's firearm and heroin were located together at the time of their seizure by the authorities. Such co-location of the firearm and the drugs in the defendant's apartment, clearly permit the imposition of a four-level enhancement pursuant to U.S.S.G. Section 2K2.1(b)(5).
Finally, the Government points out that the transcript of the sentencing hearing dated August 28, 1999, demonstrates that the defendant fully understood the guideline calculation and that there was no objection. The stipulated facts applicable to the offense conduct obviated any such objection. In summary, the Government concludes its argument by highlighting that the defendant fails to demonstrate either that defense counsel's performance fell below the objective standard of reasonableness or that defense counsel's performance prejudiced the defendant and resulted in an unreliable or fundamentally unfair outcome.
The focus of the defendant's formal reply is the 4-level enhancement pursuant to Section 2K2.1(b)(5) of the sentencing guidelines. Based upon the thoroughly documented record of these proceedings, there is no necessity for an oral hearing on the issues presented. For the reasons stated herein below, the defendant's application for relief pursuant to section 2255 is DENIED and his petition is DISMISSED with prejudice.
BACKGROUND:
On April 1, 1999, the defendant was charged in a two-count indictment with violations of the Federal Gun Control Act and the Federal Controlled Substances Act, to wit: (1) Count One of the indictment charges the defendant with on or about March 22, 1999 being a felon in possession of firearms (i.e., a Keltec CNC, Inc. pistol and a Smith and Wesson pistol) both having been shipped in interstate commerce, all in violation of Title 18, U.S.C. § 922(g)(1) and 924(a)(2); and (2) Count 2 of the indictment charges the defendant with on or about March 22, 1999, having knowingly possessed with the intent to distribute a quantities of heroin, a Schedule I controlled substance, in violation of Title 21, U.S.C. § 841(a)(1).
The signed factual basis explicitly notes that the defendant admitted that NOPD Officer Scanlan seized eight (8) "papers" of heroin in plain view in the driver's seat and the front console of the defendant's vehicle and that he also possessed a "bundle and a half" of heroin and two firearms in his apartment and that the weapons were located on a closet shelf in his apartment. The signed factual basis recapitulates that a total of eighty-seven (87) papers were seized from his apartment and his residence, weighing a combined total of 13.2 grams, inclusive of the heroin and the foil packaging.
At the time of the rearraignment hearing the Court advised the defendant of the maximum possible penalties, to wit: (1) Count One — Ten years imprisonment, and a fine of $250,000, or both and a mandatory term of supervised release of three years; (2) Count Two — Twenty years imprisonment, and fine of $250,000, or both, and a mandatory term of supervised release of up to five years; (3) For a Total Possible Sentence of Imprisonment for a term of Thirty years, and a fine of $500,000, or both, and a mandatory term of supervised release of up to five years following his release from confinement.
Additionally, the defendant was advised of the following: (1) his right to counsel although defense counsel was present; (2) the charges against him including the forfeiture provision, even though the defendant waived the reading of the indictment; (3) his right not to incriminate himself and the fact that he was waiving that right by pleading guilty as charged; (4) the elements of the offenses charged in the indictment; (5) his right to be confronted by witnesses upon which the Government would rely to prove the charges against him; (6) his right to the presumption of innocence at trial until the Government established his guilt by competent evidence beyond a reasonable doubt; (7) his right to compulsory right to call witnesses; (8) his right to a jury trial or judge trial; (9) the fact that at a jury trial all 12 jurors must agree on his guilt before he could be found guilty. The defendant agreed that he was pleading guilty because he was in fact guilty to the crimes charged. When given the opportunity to withdraw his plea at the end of the rearraignment inquiry, with no strings attached, the defendant indicated his desire to plead guilty to Counts One and Two of the Indictment.
The defendant indicated to the Court that he had sufficient time to discuss his case with defense counsel, Claude Kelly. He further indicated that he was fully satisfied with the services and the advices of his attorney.
Defense counsel, Mr. Kelly testified that he had fully explained the charges to the defendant and was satisfied that the defendant understood the charges. At the rearraignment hearing when given the opportunity by the Court, the defendant did not dispute that defense counsel had fully advised him of the consequences of his plea. Moreover, defense counsel acknowledged that he was satisfied that the defendant was pleading guilty knowingly and voluntarily, understanding the consequences of his pleas of guilty.
The defendant agreed that the United States Attorney's statements as to the facts of the alleged offense behavior were correct. Upon specific questions addressed to the defendant by the Court, the defendant admitted: (1) his knowing possession with the intent to distribute 13.2 grams of heroin, inclusive of foil packaging; (2) being a felon in possession of several firearms; and (3) his admission to Officer Scanlan that he had firearms located on a closet shelf in his apartment.
There was no need for the Government to introduce any evidence at the rearraignment hearing or sentencing. The defendant signed the factual basis. All present, including the Court, being fully satisfied that the defendant was pleading guilty to the two-count indictment both knowingly and willingly, and with full knowledge of the consequences of his plea, this Court found the defendant guilty and ordered a presentence investigation report.
ANALYSIS
The Factual Basis and the Sentencing Transcript in this case is more than sufficient to support the defendant's convictions and the four-level enhancement pursuant to Section 2K2.1(b)(5) See e.g., United States v. Muscarello, 106 F.3d 636 (5th Cir. 1997), aff'd, 118 S.Ct. 1911 (1998).
In Muscarello, the defendant pled guilty to all counts, including Count 3 — i.e., knowingly using and carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). His plea to the indictment was pre-Bailey. Prior to his sentencing and post-Bailey, the defendant moved to quash the firearm count in light of the United States Supreme Court's decision in Bailey. The district court dismissed the firearm count and the Fifth Circuit Court of Appeal reversed, reinstated the dismissed count and conviction thereon, and remanded the case for resentencing. Id.
After holding a hearing on Muscarello's motion, the district court chose to no longer credit the factual basis presented by the Government and concurred in by Muscarello. The Fifth Circuit stated in no uncertain terms that "the district court erred in discrediting and disregarding the factual basis concurred in by Muscarello. . . ." Id. at 639.
Here as in Muscarello, the factual basis for the defendant's plea is both clear and unambiguous. Given the defendant's knowing and voluntary concurrence in that factual basis, disregard of such as the defendant urges would constitute legal error.
As to the sentencing enhancement issue, Section 2K2.1(b)(5) mandates the four-level enhancement if, among other things, the defendant used or possessed the firearms in connection with another felony offense. Bourgeois contends that the government failed to demonstrate his possession of two firearms in his apartment along with more heroin was "in connection with," i.e., in any way related to his commission of "another felony."
It is important to note at the outset that Section 2K2.1(b)(5) simply provides that where the possession of a weapon is "in connection with another felony offense" the four-level enhancement is appropriate. It is unlike Guideline provision 2K2.1(c)(1) — the required connection for § 2K2.1(c)(1) being with the commission of another offense. "Section 2K2.1(c)'s requirement that the firearm be possessed in connection with the commission of of another offense mandate[s] a closer relationship between the firearm and the other offense than that required for § 2K2.1(b)(5) purposes." See, United States v. Mitchell, 166 F.3d 748, 756 (5th Cir. 1999) (citing and distinguishing its decision inUnited States v. Condren, 18 F.3d 1190, 1197 (1994), which unlike theMitchell case, involved the application of Section 2K2.1(b)(5)).
The phrase "in connection with" for purposes of Section 2K2.1(b)(5) is not defined by the Guidelines. The nexus requirement urged by Bourgeois is borrowed from 18 U.S.C. § 924(c) which proscribes the use and carrying of a firearm "during and in relation to any crime of violence or drug trafficking crime." The Court here notes that the Fifth Circuit has not adopted 924(c) as the controlling standard. Whereas § 924 expressly proscribes the use and carrying of a firearm during or in relation to a drug trafficking crime or crime of violence, in Guidelines Section 2K2.1(b)(5) mandates an enhancement even if the defendant only possesses a firearm in connection with any other felony.
The PSI relates that when arrested in possession with a total of 8 "papers" of heroin, Bourgeois informed the officer that he had "a bundle and a half" of heroin and two firearms in his apartment. Consent search of the apartment resulted in the seizure of an additional 79 "papers" of heroin along with two firearms: (1) a Keltic CNC pistol; and (2) a Smith Wesson pistol. Also, the PSI notes under acceptance of responsibility that "the defendant admits to having possessed heroin both in his vehicle and at his residence, along with firearms." Under the heading "Specific Offense Characteristics", the PSI again states that "the defendant possessed two firearms at his apartment along with heroin" — ergo, the Section 2K2.1(b)(5) four-level enhancement. These facts and conclusions based thereon were adopted by the Court without any objection from the defendant, who had ample opportunity to do so. The Court adopted the PSI finding because it was quite apparent based on the admitted facts that Bourgeois possessed not just one, but two, firearms in connection with his possession of heroin at his residence.
In United States v. Condren, 18 F.3d 1190 (5th Cir. 1994) cert. denied, 115 S.Ct. 161 (1994). the Fifth Circuit referred to Webster's Collegiate Dictionary to define the term "connection" as a "causal or logical relation or sequence. Id. at 1198. The factual basis and the PSI, which was adopted by the Court, without objection, leave no room to doubt that the possession of the weapons was in connection with the defendants possession of heroin.
The admitted facts are uncontroverted that Bourgeois possessed the firearms at issue at the same time he possessed controlled substances and both heroin and weapons were seized from the defendant's residence. Even giving Bourgeois' contentions a very liberal reading, he seems to assert that there was an absence of nexus because the weapons were in his closet. Such does not dispel the logical conclusion or connection, that the weapons were present in his residence in order "to protect" the bundle and half of heroin which was also located and seized from his residence. There was no factual basis presented to this Court that would support any conclusion to the effect that the defendant's possession of weapons in house served any purpose other than the protection of his heroin stash. Guidelines Section 2K2.1(b)(5) mandates enhancement even if the defendant only possesses a firearm, or in this case firearms, in connection with any other felony offense. Unlike § 2K2.1(c), possession of the weapon need not be connection with the commission of a felony offense. Whereas Section 2K2.1(c) prescribes a functional nexus, there is no such requirement with respect to Section 2K2.1(b)(5)
It cannot be seriously disputed that the defendant possessed weapons and drugs at his residence at the same time. The defendant's contentions that either the drug quantities were too small or that the source of the firearm was too unrelated to support enhancement finds no support and are given no credit. Bourgeois pleaded guilty to both possession of drugs and firearms.
Cf., United States v. Armstead, 114 F.3d 504, 511 (5th Cir. 1997) (citing Condren, 18 F.3d at 1198)) and reiterating: "As a result, we held that `[u]nder the ordinary and natural meaning of `in connection with' as found in § 2K2.1(b)(5), . . . we cannot credit either Condren's contention that the quantity of drugs involved was too small, or the possible contention that the source of the firearm was too unrelated, to support enhancement." Id.
For sentencing purposes, the "in connection with" prong must only be proved by a preponderance of the evidence. "Further, for purposes of enhancing a sentence under § 2K2.1(b)(5), a close relationship between the firearm and the other felony offense need not be shown."
Armstead, 114 F.3d at 511 (citing, United States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991)).
Armstead, 114 F.3d at 511 (citing, Condren, 18 F.3d at 1198).
Part K of Chapter 2 expressly refers to offenses "involving the public safety." Section 2K2.1(b)(5) was added in 1991 out of concern about crimes of violence, drug offenses, and the use or possession of firearms in connection with these offenses. Given its ordinary and natural meaning, the Court has no inclination to alter its conclusion that the four-level enhancement for possession of firearms in connection with drug possession is appropriate under the uncontroverted factual predicate.
The defendant's ineffective assistance claims similarly fail. In light of the record in this matter, the defendant cannot begin to meet his burden under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984).
Accordingly and for all of the foregoing reasons,
IT IS ORDERED that the defendant's Section 2255 claims are DENIED in their entirety and his application for relief is DISMISSED WITH PREJUDICE.
FACTUAL BASIS
Should the captioned case proceed to trial the government would prove the following through competent evidence beyond a reasonable doubt:On March 22, 1999, a New Orleans Police Department (NOPD) cooperating individual (CI) ordered a quantity of heroin over the telephone from the defendant KEITH BOURGEOIS. This was a controlled narcotics investigation buy under the supervision of NOPD officers who had opened an investigation targeting the defendant as a distributor of heroin. After this monitored telephone conversation between the cooperating individual and the defendant KEITH BOURGEOIS, the defendant was observed by NOPD surveillance officers leaving his residence at 7740 North Coronet Court, Apartment B, New Orleans and traveling in his car to an Exxon gas station near the intersection of Claiborne and Toledano, New Orleans.
NOPD Officer Daniel Scanlan approached the defendant KEITH BOURGEOIS while the defendant was putting gas in his vehicle. When the defendant KEITH BOURGEOIS noticed the NOPD officer approach, the defendant threw an object on the seat of the vehicle he was driving. NOPD Officer Scanlan saw what the defendant threw in his car, in plain view from his vantage point, standing outside the defendant's vehicle. NOPD Officer Scanlan identified it, based on his extensive law enforcement experience in narcotics trafficking, as three (3) "papers" of heroin. NOPD Officer Scanlan seized this heroin in plain view and while seizing it from the defendant's vehicle he also observed and seized five (5) additional "papers" of heroin which were also in plain view between the driver's seat and the front console of the defendant's vehicle. These eight (8) "papers" of heroin were subject to forensic testing and found to be heroin, a Schedule I drug controlled substance.
The defendant was immediately arrested at the Exxon gas station by NOPD Officer Scanlan and fully advised of all his Miranda rights. The defendant KEITH BOURGEOIS knowingly and intelligently waived those rights and agreed to answer the officer's questions. The defendant admitted that NOPD Officer Scanlan had just seized a total of eight (8) "papers" of heroin in plain view from his vehicle and that he also possessed a "bundle and a half" of heroin as well as two firearms in his apartment. The defendant advised the arresting officer that these weapons were located on a closet shelf in his apartment.
NOPD Seventh District police officers were then dispatched to the defendant's residence at 7740 North Coronet Court, Apartment B, New Orleans, Louisiana. The officers knocked on the residence door and the defendant's girlfriend opened the door and knowingly and voluntarily consented to a search of the entire apartment. The defendant's girlfriend lived at this apartment at the time of the search, had full access to all parts of the apartment and consented to the search and seizure of all the evidence described herein. During the consent search the NOPD officers seized a Keltec CNC, Inc., pistol, serial number 36791 and a Smith and Wesson pistol, serial number TZF0228. Both of these firearms were knowingly and intentionally possessed by the defendant KEITH BOURGEOIS after having been convicted of a crime punishable by imprisonment for a term exceeding one year, a felony conviction. Research by the Bureau of Alcohol Tobacco and Firearms (BATF) experts determined that both of these firearms had been shipped in interstate commerce and that they both operate as firearms. NOPD officers also seized seventy-nine (79) "paper" of heroin from the defendant's apartment. These seventy-nine (79) "papers" were subject to forensic testing and found to be heroin, a Schedule I drug controlled substance.
The total weight of the eight (8) "papers" seized from the defendant's vehicle and the seventy-nine (79) additional "papers" of heroin seized from the defendant's residence were subject to forensic testing for weight and were found to weigh a total of 13.2 grams, inclusive of the heroin and the foil packaging. The defendant KEITH BOURGEOIS knowingly and intentionally possessed this quantity of heroin, seized from his vehicle and residence, with the intent to distribute it.
A criminal records search of the defendant KEITH BOURGEOIS determined that he has been convicted of a crime punishable by imprisonment for a term exceeding one year, namely, a felony conviction on February 8, 1993, in Orleans Parish Criminal District Court, Case No. 360-403, for possession of cocaine.
Should this case proceed to trial the two counts in this indictment would be proven beyond a reasonable doubt through the testimony of the NOPD cooperating individual who arranged to purchase heroin from the defendant, NOPD Officer Scanlan who seized heroin in the defendant's car, NOPD Seventh District police officers who conducted the consent search of the defendant's residence, and BATF firearms experts who would identify the seized firearms and testify that they both operate as firearms and that they both had been shipped in interstate commerce. A forensic chemist would testify that the total of the eighty-seven (87) "papers" seized from the defendant's vehicle and residence have been subject to forensic testing and found to be heroin, a Schedule I drug controlled substance, weighing a combined total of 13.2 grams, inclusive of the heroin and the foil packaging. Finally, a custodian of records for the Orleans Parish Criminal District Court would testify that the defendant has a prior qualifying felony conviction that has not been expunged or reversed on any appeal and that he was disqualified to possess any firearms at the time they were seized from his residence where he possessed them.
JOHN F. MURPHY Assistant U.S. Attorney