United States v. Cook

89 F. App'x 998
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 24, 2004
DocketNo. 02-5512
StatusPublished
Cited by2 cases

This text of 89 F. App'x 998 (United States v. Cook) 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. Cook, 89 F. App'x 998 (6th Cir. 2004).

Opinion

ROGERS, Circuit Judge.

The defendant, Kevin Cook, pled guilty to conspiring to distribute cocaine and marijuana. Cook objected to a two-level increase in his offense level for possessing a dangerous weapon in connection with his drug crimes pursuant to § 2Dl.l(b)(l) of the Sentencing Guidelines. The district court held that § 2Dl.l(b)(l) applied, and Cook appeals that decision. Because the district court’s finding that Cook possessed a pair of pistols in connection with his offenses was not clearly erroneous, we affirm the judgment of the district court.

STATEMENT OF FACTS

On October 24, 2000, law enforcement agents executed a search warrant at Cook’s residence, following an investigation of a drug trafficking ring between Laredo, Texas, and Nashville, Tennessee. During the search, the agents discovered a pair of firearms in the bedroom-speeifically, a .22 caliber Glock semi-automatic handgun near the headboard of the bed and a SIG SP 2340 semiautomatic handgun in a chest drawer. Both of the firearms were loaded. The agents also found “a user amount of marijuana” and $93 in cash [999]*999on top of the television in the bedroom, as well as $2,811 in cash in a gym bag in the living room.

On November 16, 2000, a grand jury sitting in the Middle District of Tennessee returned an indictment naming, among others, Cook. On February 22, 2001, the grand jury returned a superseding indictment charging Cook with conspiring to distribute over five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) & 846, and seeking forfeiture of the cash seized at Cook’s residence. On June 20, 2001, a grand jury sitting in the Southern District of Texas returned an indictment charging Cook, among others, with conspiring to distribute over 1000 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) & 846. The Texas case against Cook was later transferred to the Middle District of Tennessee. On September 14, 2001, pursuant to a plea agreement, Cook pled guilty to the charges in the Tennessee and Texas indictments.

At sentencing, the district court, over Cook’s objection, applied a two-level enhancement for possession of a dangerous weapon pursuant to § 2Dl.l(b)(l) of the Sentencing Guidelines. The district court held that a presumption that Cook possessed the weapons in connection with his drug offenses arose when Cook conceded that he possessed the weapons, and that Cook had not adduced sufficient evidence to overcome the presumption. The court sentenced Cook to a term of 121 months imprisonment for each offense, with the sentences to run concurrently. Cook timely appealed his sentence.

ANALYSIS

The Government contends that Cook’s challenge to the application of the § 2D1.1 enhancement is not properly before the court because Cook in his plea agreement waived any right to appeal his sentence. Cook argues that he is not bound by the waiver because the Government was allegedly in material breach of the plea agreement. We need not resolve the waiver issue because, in any event, the district court did not clearly err in applying the enhancement.

A district court’s finding that a defendant possessed a firearm during a drug crime is a factual finding subject to review for clear error. United States v. Darwich, 337 F.3d 645, 664 (6th Cir.2003). A district court makes a clearly erroneous finding of fact “when, although there may be some evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (internal quotation omitted).

Section 2Dl.l(b)(l) of the Sentencing Guidelines provides for a two-level increase “[i]f a dangerous weapon (including a firearm) was possessed” in connection with a drug offense. U.S.S.G. § 2Dl.l(b)(l) (2002). This enhancement “reflects the increased danger of violence when drug traffickers possess weapons.” Id. cmt. n. 1.

Enhancement analysis under § 2Dl.l(b)(l) has two parts. United States v. Solorio, 337 F.3d 580, 599 (6th Cir.2003). First, the Government bears the burden of showing by a preponderance of the evidence that the defendant actually or constructively possessed the weapon. Darwich, 337 F.3d at 665; Sobrio, 337 F.3d at 599. “Constructive possession of an item is the ownership, or dominion or control over the item itself, or dominion over the premises where the item is located.” Darwich, 337 F.3d at 665 (internal quotation omitted). Second, once the Government meets its burden of showing that the defendant possessed a weapon, a presumption arises that the weapon was connected to the offense. Id. The burden [1000]*1000then shifts to the defendant to demonstrate that “it was clearly improbable that the weapon was connected with the crime.” Id. (internal quotation omitted).

Several factors are relevant to the determination of whether a weapon was connected to the offense, although none is completely controlling: (1) the type of firearm involved; (2) the accessibility of the weapon to the defendant; (3) the presence of ammunition; (4) the proximity of the weapon to illicit drugs, proceeds, or paraphernalia; (5) the defendant’s evidence concerning the use of the weapon; and (6) whether the defendant was actually engaged in drug trafficking, rather than mere manufacturing or possession. United States v. Moses, 289 F.3d 847, 850 (6th Cir.2002); United States v. Edmonds, 9 Fed.Appx. 330, 331 (6th Cir.2001).

The district court held that, because Cook conceded that he owned or possessed the weapons during the period in which he was engaged in drug-trafficking activity, the presumption arose that the weapons were possessed in connection with the offense. The court further held that Cook had not shown that it was “clearly improbable” that the weapons were not connected with the offense. The court noted that Cook did not have any job other than drug trafficking and that a gym bag containing a large amount of cash was found in the apartment with the weapons.

On appeal, Cook concedes that he “possessed” the pistols, and instead concentrates on the second part of the enhancement analysis, arguing that it was clearly improbable that the guns were connected to his drug offenses. He notes that only a small amount of “personal use” marijuana was found with the guns, that agent Kennedy conceded on cross-examination that no witness specifically mentioned that Cook carried a weapon when he dealt drugs, and that there was no showing that drug-trafficking activity occurred at his residence.

The district court did not clearly err in finding that Cook possessed the weapons in connection with his drug crimes. Cook does not dispute that he “possessed” the pistols found at his residence, and a number of factors support the conclusion it was not clearly improbable that the pistols were connected to Cook’s drug-trafficking activities.1 Cook has not offered an innocent explanation, such as hunting, sport shooting, or collecting, for possessing these weapons. Compare United States v. Zimmer,

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Bluebook (online)
89 F. App'x 998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cook-ca6-2004.