United States v. Dexter Hubbard

463 F.3d 1218

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 7, 2006
• Docket: 03-11905
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 03-11905 SEPTEMBER 7, 2006 ________________________ THOMAS K. KAHN CLERK D. C. Docket No. 02-00045-CR-19-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NEYAUNTEU STALLINGS, a.k.a. "Coolio", MILTON LUCAS, RICHARD ALLEN HEPBURN, a.k.a. "Al", WALTER DEAN JOHNSON, a.k.a. "Walt",

Defendants-Appellants. ________________________

No. 03-12620 ________________________

D. C. Docket No. 02-00045-CR-11-1

EUSEBIO PHELPS, a.k.a. "Ebbie",

Defendant-Appellant. ________________________

No. 04-10882 ________________________

D. C. Docket No. 02-00045-CR-8-1

ALEX SESSION,

Appeals from the United States District Court for the Northern District of Georgia _________________________

(September 7, 2006)

2 Before ANDERSON, BARKETT and CUDAHY,* Circuit Judges.

CUDAHY, Circuit Judge:

This appeal stems from a complicated criminal drug conspiracy centered in

Atlanta, Georgia. In January 2002, a grand jury returned an indictment charging

more than twenty defendants in a conspiracy involving possession with intent to

distribute cocaine hydrochloride and heroin. Six defendants are before us on

appeal, including Walter Dean Johnson. These six defendants initially entered

pleas of not guilty; one later changed his plea. The district court sentenced all the

defendants to various prison sentences, which they timely appealed. We resolved

most of the claims raised in this appeal by way of a separate unpublished opinion.

United States v. Stallings et al., F.3d (11th Cir. 2006). H ere w e

consider only defendant Johnson’s argument that the district court erred in

enhancing his sentence for possession of a firearm under U.S.S.G. § 2D1.1(b)(1).

I. BACKGROUND

A jury convicted Johnson of distributing cocaine in violation of 21 U.S.C. §

841(a)(1) and (b)(1)(C) (Count 1). The district court sentenced him to 168 months,

* The Honorable Richard D. Cudahy, Circuit Court Judge for the United States Court of Appeals for the Seventh Circuit, sitting by designation.

3 which included an enhancement for firearms possession and for obstruction of

justice. The district imposed the firearms enhancement based upon the fact that the

police found three pistols in Johnson’s home, which they searched when they

arrested him for his role in the narcotics conspiracy. Johnson shared that home

with at least three other adults; the government introduced no evidence that

possession of the pistols was somehow unlawful. Additionally, the police found

no evidence of drug paraphernalia in Johnson’s home.

II. FIREARMS ENHANCEMENT

For sentencing purposes, possession of a firearm involves a factual finding,

which we review for clear error. United States v. Alred, 144 F.3d 1405, 1420 (11th

Cir. 1998); United States v. Geffrard, 87 F.3d 448, 452 (11th Cir. 1996). The

federal Sentencing Guidelines provide that, if a dangerous weapon (including a

firearm) was possessed during a drug-trafficking offense, then a defendant’s

offense level should be increased by two levels, unless it is clearly improbable that

the weapon was connected to the offense. United States v. Audain, 254 F.3d 1286,

1289 (11th Cir. 2001). To justify a firearms enhancement, the government must

either establish by a preponderance of the evidence that the firearm was present at

4 the site of the charged conduct or prove that the defendant possessed a firearm

during conduct associated with the offense of conviction. Id. If the government is

successful in meeting this initial burden, then the evidentiary burden shifts to the

defendant, who must demonstrate that a connection between the weapon and the

offense was “clearly improbable.” Id. (citing United States v. Hall, 46 F.3d 62, 63

(11th Cir. 1995).

In deciding whether the government satisfied its initial burden, relevant

conduct includes “acts ‘that were part of the same course of conduct or common

scheme or plan as the offense of conviction.’” United States v. Smith, 127 F.3d

1388, 1390 (11th Cir. 1997) (quoting U.S.S.G. § 1B1.3(a)(2)). More specifically,

the government must show that the firearm had “some purpose or effect with

respect to the drug trafficking crime; its presence or involvement cannot be the

result of accident or coincidence.” United States v. Timmons, 283 F.3d 1246, 1251

(11th Cir. 2002) (citing United States v. Smith, 508 U.S. 223, 238 (1993)).

Here, not one witness said anything about Johnson’s using or carrying a

firearm during any of the drug transactions for which he was convicted. Nor did

the government produce any evidence that Johnson possessed the firearms in

question here during conduct associated with drug-trafficking activities. The only

evidence that the government introduced was that the police found three handguns

5 in Johnson’s home—where no one suggested that any activities related to the

conspiracy ever took place.

Although “‘[e]xperience on the trial and appellate benches has taught that

substantial dealers in narcotics keep firearms on their premises as tools of the

trade,’” United States v. Alvarez, 755 F.2d 830, 849 (11th Cir. 1985) (citing

United States v. Perez, 648 F.2d 219, 224 (5th Cir. Unit B 1981)), the mere fact

that a drug offender possesses a firearm does not necessarily give rise to the

firearms enhancement. The government must show some nexus beyond mere

possession between the firearms and the drug crime. See, e.g., Timmons, 283 F.3d

at 1251 (noting that the “‘in relation to’ language ‘allay[s] explicitly the concern

that a person could be’ punished under § 924(c)(1) for committing a drug

trafficking offense ‘while in possession of a firearm’ even though the firearm’s

presence is coincidental or entirely ‘unrelated’ to the crime” (citing Smith v. United

States, 508 U.S. 223, 238 (1993))); United States v. Siebe, 58 F.3d 161, 162–63

(5th Cir. 1995) (concluding that a firearms enhancement was not justified because,

although police found ninety firearms in the defendant’s home, they found no

evidence there of drug paraphernalia or drug trafficking activities); United States v.

Salery, 119 F. Supp. 2d 1268, 1275 (M.D. Ala. 2000) (synthesizing cases and

concluding that the government must prove that the weapon was found in the same

6 location as the drugs or that the weapon was part of conduct involved in a drug

transaction).

Here, because the government provided no evidence connecting the pistols

found in Johnson’s home to his alleged drug activity and because the government

never addressed the possibility that the weapons belonged to any of the other adults

residing in his home, the government has failed to meet its burden. Applying the

firearms enhancement on these facts is therefore clearly erroneous.

III. CONCLUSION

Accordingly, the judgment of the district court is A FFIRMED in all respects but in

the application of the firearms enhancer in computing Johnson’s sentence, which is

vacated. Johnson’s case is remanded to the district court for resentencing

consistent with both this opinion and our related unpublished disposition.