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United States v. Kelly

March 10, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
VERNELL KELLY, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 05 CR 269-Elaine E. Bucklo, Judge.

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

ARGUED APRIL 2, 2007

Before RIPPLE, ROVNER, and WOOD, Circuit Judges.

A jury convicted of Vernell Kelly of knowingly possessing a firearm following a felony conviction, in violation of 18 U.S.C. § 922(g)(1), and knowingly and intentionally possessing, with the intent to distribute, crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The district court ordered him to serve a prison term of 235 months. Kelly appeals, contending that the evidence was insufficient to establish his possession of both the firearm and the cocaine underlying one of the two narcotics charges against him, that the evidence did not adequately establish that the cocaine attributed to him took the form of crack cocaine, and that the district court improperly characterized him as a career offender for sentencing purposes. We affirm.

I.

A tip brought Chicago police officers to the corner of Homan and Carroll Streets on Chicago's west side, where the officers were told defendant-appellant Kelly was distributing crack cocaine. Shortly before midnight on the night of June 16, 2004, undercover officer Patrick Thelen observed what appeared to be a drug transaction. Kelly pulled up to the scene in a van and exited the vehicle. Another man approached Kelly, conversed with him briefly, and then handed him money. Kelly then removed a golf-ball sized object from a plastic bag in the back of his pants, handed the object to the other man, and put the plastic bag back into his pants. The other man walked away. Thelen radioed his fellow officers, who were parked a short distance away, to move in on Kelly. As Thelen himself began to approach Kelly, he saw Kelly remove the plastic bag from his pants and drop it to the ground. Officer Mireya Lipsey retrieved the bag and discovered that it contained another golf ball-sized object, which turned out to be twenty small packets each containing a white, chunk-like substance that she suspected was crack cocaine. The twenty bags had blue stars on them. Kelly was placed under arrest and advised of his rights. A search of his van produced no additional contraband.

A set of keys for a basement apartment at 3309 West Warren in Chicago was discovered on Kelly's person. According to the police, Kelly identified 3309 West Warren as his address. The police proceeded to that apartment to continue their investigation.

Shortly after midnight, the arresting officers called at 3309 West Warren. Betsy Washington answered the door to the basement apartment. Washington is the mother of Kelly's daughter. Washington and their daughter resided in the apartment along with Zippora Collins and her daughter. The police solicited and received Washington's written consent to search the apartment.

The apartment contained three bedrooms. Collins would later testify that she and her daughter occupied two of the bedrooms and that Washington and her daughter occupied the third. According to Collins, she saw Kelly at the apartment three to four times per week in June of 2004. She would only see Kelly in the mornings, because Collins typically arrived home at a late hour when everyone else in the apartment was asleep.

In the bedroom occupied by Washington and her daughter, Thelen discovered a .45-caliber semiautomatic Ruger firearm loaded with hollow-point ammunition. In the same room, Lipsey discovered three pieces of mail addressed to Kelly at the Warren Street address. Among them was a letter to Kelly from the Social Security Administration dated June 10, 2004-six days prior to Kelly's arrest.

In addition to the gun, the officers also retrieved cocaine from the apartment. In a utility closet, Officer Brian Spain discovered a large plastic bag containing nine smaller plastic bags, each of which in turn contained thirteen mini Ziploc bags, for a total of 117 bags. Each of the mini Ziploc bags contained a white, rock-like substance that appeared to be crack cocaine. Each of the mini bags was also marked with blue stars like those found on the bags that Kelly had dropped at Homan and Carroll.

Spain would later testify that mini Ziploc bags are commonly used by narcotics traffickers on Chicago's west side. He also indicated that he had seen a number of such bags with various types of markings (for example, blue devils and red boats) on them. However, he had never before seen bags marked with blue stars.

Their search of the Warren Street apartment complete, officers returned to the police station to question Kelly. Kelly was again advised of Miranda rights. When shown the gun and the cocaine that had been discovered in the apartment, Kelly remarked that "my baby's mama don't know nothing about my gun and the rocks," or words to that effect-although Thelen was certain that he used the term "rocks." R. 85-7 at 135-36, 213. Kelly indicated that he had obtained the gun from a friend and that he kept it for his protection.

A grand jury subsequently returned a three-count indictment against Kelly. Count One charged Kelly with knowingly possessing a firearm in or affecting interstate commerce following a conviction for a felony. See 18 U.S.C. ยง 922(g)(1). Counts Two and Three charged Kelly with possessing more than five grams of a substance containing cocaine base in violation of 21 U.S.C. 841(a)(1). Count Two involved the cocaine recovered at the scene of ...


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