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UNITED STATES v. NICHOLS

June 14, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
SHERMAN NICHOLS, Defendant



The opinion of the court was delivered by: HART

 WILLIAM T. HART, UNITED STATES DISTRICT JUDGE

 Initially, in a one-count indictment, the government charged Sherman Nichols with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At trial before a jury, two police officers testified that they saw Nichols standing in front of an apartment building with the butt of a gun protruding from the waistband of his pants. When the officers approached Nichols, he turned and ran up the stairs. The officers testified that they chased him up the stairs where he ran into an apartment with an open door and slammed the door behind him. One officer broke down the door and testified that he found Nichols in the kitchen with his arm sticking through the burglar bars of a doorway and he heard a thud. The officers apprehended Nichols. They further testified that they found a revolver on the back porch of the apartment and that they found on Nichols a waistpouch containing $ 605 in cash. At the first trial, the officers' proffered testimony that the pouch also had a plastic vial containing nine foil packets was excluded. Each foil packet consisted of a mixture containing cocaine. The total weight of the nine units of low purity cocaine was.83 grams. The officers testified that other persons were in the apartment that Nichols was found in; none of those persons testified at the trial. The officers testified that no one else saw them during the chase up the stairwell.

 Nichols presented the testimony of the woman who lives across the hallway from the apartment Nichols was found in. She testified that she opened her door to see a policeman at the closed door across the hall and that he told her to get back into her apartment. She also testified that she heard the sound of persons being locked out of the apartment and then breaking the door down. She also testified she saw a person taken out of the entrance to the building and into a squadrol. Her testimony was somewhat inconsistent with that of the officers. The only other witness presented by Nichols was a private investigator who was a former FBI agent. She testified as to the limitations of the lighting in front of the apartment building. This testimony was offered on the issue of whether the officers could have seen a firearm in Nichols's waistband at nighttime. Defendant's theory of the case was that any gun found on the porch was not his.

 The jury in this first trial could not reach a unanimous verdict and the court ultimately declared a mistrial. The foreperson reported in open court that the jury was split eleven to one in favor of finding Nichols guilty. A superseding indictment was brought which, in addition to charging possession of the firearm, charged possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and use of a firearm in drug trafficking in violation of 18 U.S.C. § 924(c).

 The question of an appropriate sentence is now before the court. Since the offenses were committed in March 1989, the Sentencing Guidelines apply.

 In 1975, while age 17, Nichols committed a residential burglary in violation of Illinois law. He pleaded guilty in 1976 and was sentenced to two years' felony probation. In 1980, Nichols committed a robbery in violation of Illinois law. He pleaded guilty in 1981, was sentenced to three years' imprisonment, and was imprisoned approximately 21 months before being paroled. In 1985, Nichols was found guilty of a 1984 auto theft that violated Illinois law. Nichols was sentenced to three years' imprisonment and was imprisoned approximately one year before being paroled. In 1987, Nichols was found guilty of a 1986 residential burglary in violation of Illinois law. He was sentenced to five years' imprisonment and imprisoned approximately 19 months before being paroled in January 1989. The present offenses were committed less than two months later while Nichols was still on parole.

 As further explained in the presentence report, the probation officer has calculated the guideline range as 360 months to life. As required by 18 U.S.C. § 924(c), the mandatory five-year sentence under that statute must be in addition to the sentence on the other two counts. Therefore, that offense is not part of the guidelines calculation. Unless the probation officer's calculation is incorrect or there is sufficient reason for departing from the guidelines, Nichols, who will be 32 in September, faces a minimum sentence of 35 years for possessing a gun while also possessing less than a gram of cocaine that he intended to distribute.

 Section 2D1.1 of the Guidelines applies to determining the base offense level for Count One, the cocaine distribution charge. *fn1" The base offense level for distribution of less than 25 grams of cocaine (in this case it was less than one gram of a weak mixture) is 12. U.S.S.G. § 2D1.1(c)(16). Under U.S.S.G. § 2K2.1(a) (1988), the base offense level for Count Three, firearms possession, is 9. Because both counts involve the same act and transaction, they are grouped together and the offense level is 12.

 Without consideration of the career offender guidelines, Nichols's criminal history category would be V based on three points each for three prior convictions, *fn2" two points for committing an offense while on parole, and one point for committing an offense less than two years after his release. The guideline range for an offense level of 12 and criminal history category of V is 27 to 33 months.

 Nichols, however, falls into the category of career offender. See U.S.S.G. § 4B1.1. He was over eighteen years old when the present offenses were committed; the present offenses include a controlled substance offense; and he has two prior convictions for a crime of violence, the robbery and the second residential burglary. *fn3" If the possible life term on the firearm possession offense is the "offense statutory maximum" to consider under § 4B1.1, then the offense level is 37. See id. § 4B1.1(A). If the maximum term on the distribution charge, which is 20 years (see 21 U.S.C. § 841(b)(1)(C)), is the "offense statutory maximum" to consider, then the offense level is 32. See U.S.S.G. § 4B1.1(C). A career offender's criminal history category is automatically VI. The guideline range for an offense level of 37 and a criminal history of VI is 360 months to life, which is what the probation officer calculated. The guideline range for an offense level of 32 and a criminal history of VI is 210 to 262 months.

 In United States v. Jackson, 835 F.2d 1195, 1197-98 (7th Cir.), cert. denied, 485 U.S. 969, 99 L. Ed. 2d 442, 108 S. Ct. 1244 (1988), the Seventh Circuit discussed, in dictum, the ambiguities contained in guideline § 4B1. First is the question of whether possession of a gun by a felon is a crime of violence. The Guidelines definition of a crime of violence that was in existence at the time Nichols committed his offense is applicable to this case. See United States v. McNeal, 900 F.2d 119 (7th Cir. 1990); United States v. Williams, 892 F.2d 296, 304 (3d Cir. 1989). As of March 1989, the Guidelines incorporated the definition of crime of violence contained in 18 U.S.C. § 16 which is:

 
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the ...

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