The opinion of the court was delivered by: Marvin Katz, United States District Judge
On the night of September 21, 2001, Philadelphia police officers arrested defendants Kevin Davis, Reginal Scott, and Kevin Minnis following a high speed car chase. At trial, the government argued that the defendants were traveling in a black Honda with two other individuals when shots were fired from their automobile. Police Officers in both marked and unmarked vehicles pursued the defendants to the 2200 block of Moore Street. Philadelphia Police Officer Brook testified at trial that he observed Kevin Davis exit the vehicle and attempt to flee the scene. According to Officer Brook, he pursued Davis until Davis stopped and pointed his weapon at the Officer. Officer Brook then fired his gun striking the defendant in the leg. At the scene, the police recovered a Hi-Point .380 caliber pistol from the area where Davis fell, along with nineteen packets of cocaine base or crack and $116.00 from Davis' clothes. Philadelphia Police Officer Bucceroni testified at trial regarding the arrest of defendant Minnis. According to Officer Bucceroni,
At the time when [Minnis] was coming out, I was coming around the right rear corner of the black Honda Accord. He is coming out, his right foot is on the pavement or the street. His left is in the car. He is coming out, he is facing, I want to say toward the south side of Moore Street. He was not really looking at me. In his right hand, which is close to — had it up by his face was a black semiautomatic weapon.
Tr. at 59, Sept. 11, 2002. Two other officers also testified that they saw Minnis holding a firearm in his hand as he exited the Honda. The police recovered from defendant Minnis a Heckler & Koch USP 9mm semi-automatic pistol with laser sights, one magazine loaded with eleven live rounds of ammunition, as well as twelve packets containing cocaine base or crack. Neither defendant Davis nor Minnis testified at trial. After three days of testimony, the jury returned guilty verdicts on all counts.
18 U.S.C. § 924(c) provides that:
any person who, during and in relation to any crime of
violence or drug trafficking crime . . . for which the
person may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such
crime of violence or drug trafficking crime —
(i) be sentenced to a term of imprisonment of not
less than 5 years;
(ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to
a term of imprisonment of not less than 10 years.
When sentencing a defendant under 18 U.S.C. § 924(c)(1)(A), "[t]he statute regards brandishing and discharging as sentencing factors to be found by the judge, not offense elements to be found by the jury." United States v. Harris, 122 S.Ct. 2406, 2414 (2002). Therefore, even though the jury in this case found defendants Davis and Minnis guilty of "carrying" firearms in relation to drug trafficking crimes, the defendants may be sentenced to a minimum of seven years in prison for violating section 924(c) if the government shows that the defendants actually "brandished" their weapons.
Under the statute, brandishing is defined as "with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person." 18 U.S.C. § 924(c)(4). As to defendant Davis, the government has met its burden in showing that there is a preponderance of reliable evidence that Davis pointed his weapon at Officer Brook in order to intimidate the Officer.*fn2 Officer Brook testified at trial that defendant Davis exited the Honda and attempted to flee the scene. According to Officer Brook, defendant Davis pointed his weapon over his shoulder at the Officer. This court finds that this testimony is sufficient to show that defendant Davis displayed his firearm to ...