United States v. Bobby Webb (01-5682) and Preston Webb (01-5683)

335 F.3d 534, 2003 U.S. App. LEXIS 13900
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 11, 2003
Docket01-5682, 01-5683
StatusPublished
Cited by74 cases

This text of 335 F.3d 534 (United States v. Bobby Webb (01-5682) and Preston Webb (01-5683)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bobby Webb (01-5682) and Preston Webb (01-5683), 335 F.3d 534, 2003 U.S. App. LEXIS 13900 (6th Cir. 2003).

Opinion

OPINION

GILMAN, Circuit Judge.

Bobby Webb and his son, Preston Webb, pled guilty to both conspiring to possess and with actually possessing Dilaudid tablets, each with the intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1). On appeal, the Webbs argue that the district court improperly (1) enhanced their offense levels for possession of a firearm under United States Sentencing Guidelines § 2Dl.l(b)(l); (2) denied them a reduction for acceptance of responsibility under Sentencing Guidelines § 3E1.1; and (3) considered the full weight of the tablets in computing their offense levels. In addition, Preston Webb argues that the district court improperly enhanced his offense level for being a manager of the conspiracy. For the reasons set forth below, we AFFIRM the judgments of the district court.

I. BACKGROUND

A. Factual background

Bobby and Preston Webb conducted a fencing operation in Memphis, Tennessee by paying for stolen merchandise with Dilaudid pills, a synthetic heroin. Law enforcement officers began investigating the Webbs in February of 2000. On March 29, 2000, federal search and seizure warrants were served on the Webbs’ businesses and residences. At the business address where all of the undercover purchases of Dilaudid had been made, the officers recovered stolen merchandise, Dilaudid tablets, a Smith & Wesson .38-caliber revolver, and a disassembled 9mm submachine gun.

The officers also interviewed Preston Webb at the time of the search. He admitted that he and his father, Bobby, had been dealing in Dilaudid for approximately three months. Bobby Webb also spoke to the officers on the day of the search. Later that spring, local law enforcement officers received information that the Webbs were still dealing drugs. On June 15, 2000, the Webbs were arrested and a second search took place at their business. More Dilaudid tablets were seized at that time.

B. Procedural background

A superseding indictment on October 24, 2000 charged the Webbs both with conspiring to possess and with actually possessing Dilaudid, each with the intent to distribute. On February 8, 2001, both defendants pled guilty to all counts. The Webbs’ sentencing hearing took place in May of 2001. Although they did not object to the facts as presented in the Presen-tence Report, they filed four objections to the recommendations contained therein that mirror the arguments they make on appeal. The probation officer then filed an addendum to the Presentence Report, responding to the Webbs’ objections. After conducting a sentencing hearing, the district court adopted the Presentence Report as amended and sentenced both Bobby and Preston Webb to 235 months of imprisonment. This timely appeal followed.

II. ANALYSIS

A. Standard of review

In reviewing a district court’s application of the Sentencing Guidelines, we “accept the findings of fact of the district court unless they are clearly erroneous *537 and ... give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e). In light of Buford v. United States, 532 U.S. 59, 63-66, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001) (holding that the district court was entitled to deference in its application of § 4B1.2 of the Sentencing Guidelines in a case where the underlying facts were undisputed), this court has held that our standard of review of a district court’s application of provisions of the Sentencing Guidelines to the facts should be treated deferentially and should not be disturbed unless clearly erroneous. United States v. Jackson-Randolph, 282 F.3d 369, 389-90 (6th Cir.2002) (holding that the Supreme Court’s reasoning in Buford leads to the use of a deferential standard of review in the application of the Sentencing Guidelines under circumstances involving fact-bound determinations).

B. The district court did not err in enhancing the defendants’ offense levels for possession of a firearm under Sentencing Guidelines § 2Dl.l(b)(l)

The Webbs argue that the district court erred in enhancing their sentences for possession of a firearm because the government did not present evidence sufficient to establish that they were aware of the presence of the .38-caliber revolver in their store. In support of their contention, the Webbs point to the sentencing-hearing testimony of Joyce Webb, Bobby’s wife and Preston’s mother, to the effect that the gun belonged to her.

Under Sentencing Guidelines § 2Dl.l(b)(l), the offense level may be increased by two levels if a dangerous weapon was possessed during an offense involving drugs. The commentary provides that the enhancement “should be applied if the weapon was present, unless it was clearly improbable that the weapon was connected with the offense.” U.S. Sentencing Guidelines Manual § 2D1.1, cmt. n. 3 (2000). To start with, the government must prove by a preponderance of the evidence that the defendant actually or constructively possessed the weapon and that such possession was during the commission of an offense involving drugs. United States v. Dunlap, 209 F.3d 472, 477 (6th Cir.2000). The burden then shifts to the defendant to prove that any connection between the drug offense and the weapon is clearly improbable. Id.

At the sentencing hearing, the district court considered Joyce Webb’s testimony in its entirety, but found it unconvincing. She could not identify the type of gun found at the defendants’ place of business or even describe what the gun looked like. Although she claimed that she kept it for protection at her restaurant, the gun was found at the defendants’ adjacent business location where all of the undercover drug transactions had occurred. Further, there was ample evidence provided by the investigating officers of where the gun was located in relation to the Webbs’ drug dealing. The district court found that the government had met its burden and that the Webbs had not demonstrated that the gun’s connection with the offense was clearly improbable. Because they rely on essentially the same arguments and evidence on appeal, the Webbs have not demonstrated that the district court’s application of the enhancement was clearly erroneous.

C. The district court did not err in denying the defendants a reduction for acceptance of responsibility under Sentencing Guidelines § 3E1.1

As discussed in Part II.A. above, the Supreme Court in Buford applied a deferential standard of review to a district *538 court’s application of Sentencing Guidelines § 4B1.2 to the undisputed facts. Buford, 532 U.S. at 64-65, 121 S.Ct. 1276.

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Bluebook (online)
335 F.3d 534, 2003 U.S. App. LEXIS 13900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bobby-webb-01-5682-and-preston-webb-01-5683-ca6-2003.