United States v. Frederick William Heldberg

907 F.2d 91, 1990 U.S. App. LEXIS 9840, 1990 WL 82182
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 20, 1990
Docket89-50587
StatusPublished
Cited by48 cases

This text of 907 F.2d 91 (United States v. Frederick William Heldberg) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Frederick William Heldberg, 907 F.2d 91, 1990 U.S. App. LEXIS 9840, 1990 WL 82182 (9th Cir. 1990).

Opinion

ALARCON, Circuit Judge:

Frederick Heldberg appeals from the district court's imposition of a 16-month prison sentence. He seeks reversal on the ground that it was improper for the district court to add two points to his offense level for the possession of a firearm during the importation of controlled substances.

We must determine whether it is clearly improbable that an unloaded firearm, locked in a briefcase in the trunk of a car, was connected to the importation of controlled substances found in the defendant’s pockets at the time of his arrest in the vehicle at a border port of entry. We affirm because we conclude that connection of the firearm to the importation of controlled substances was not, under these circumstances, clearly improbable.

I.

The presentence report discloses the following facts: On May 8, 1989, Heldberg entered the United States from Mexico at the port of entry at San Ysidro, California. He was driving a Pontiac Fiero. He was accompanied by a woman. Heldberg and his passenger declared to a custom’s agent that they were not importing any items from Mexico. They were referred to a secondary inspection area.

After conducting a pat-down search, Customs Inspector Shatto ordered Heldberg to empty his pockets. Heldberg produced a plastic baggie from his right-front pant’s pocket containing 4.31 grams of marijuana. A search of the same pocket disclosed .2 grams of cocaine and 5.5 grams of methamphetamine packaged in five separate baggies.

Customs Agents found a briefcase in the trunk of the Pontiac Fiero. The briefcase contained an unloaded .25 caliber semi-automatic handgun, two ammunition clips, a box of ammunition, Heldberg’s wallet, his Texas driver’s license, a set of scales, a mirror, and a pipe. The scales, the mirror, and the pipe had narcotics residue on them.

Heldberg was arrested and advised of his constitutional rights. Heldberg signed a written waiver of his Miranda rights. He admitted ownership and possession of the controlled substances. He stated that he purchased them in Mexico. Heldberg told the arresting officers that he had obtained the handgun from a friend. Heldberg was indicted on May 17, 1989. On August 1, 1989, he entered a plea of guilty to one count of importation of a controlled substance in violation of 21 U.S.C. §§ 952 and 960.

The probation officer computed the Base Offense Level as 12. He added two points because Heldberg was in possession of a firearm during the commission of the crime of importation of controlled substances. A downward adjustment of two points was calculated because Heldberg accepted responsibility. The Criminal History Level was computed at 1, the total offense level at 12, and a sentence of 16 months was recommended.

Heldberg filed an objection to the presen-tence report on September 26, 1989. He argued that it was improper to add two points for the possession of the firearm found in the locked trunk compartment of the Pontiac Fiero.

At the sentencing hearing, Heldberg testified that the handgun belonged to a person named Scott. Heldberg was owed $45.00 by Scott for services performed in repairing his car. Heldberg testified that he took possession of Scott’s handgun until he was paid. Heldberg had placed the handgun in his briefcase on May 8 because Scott was supposed to pay him on that date.

The district court concluded that Held-berg’s testimony was “not particularly credible.” The court also stated “it just doesn’t make sense to me.”

II.

The district court found that Heldberg possessed the .25 caliber handgun during the importation of controlled substances from Mexico. The district court increased the offense level by 2 levels, pursuant to section 2Dl.l(b)(l) of the Sentencing Guide *93 lines. Section 2D1.1(b)(1) provides in pertinent part as follows: “If a dangerous weapon (including a firearm) was possessed during commission of the offense [of importation of controlled substances], increase by 2 levels.” United States Sentencing Comm’n, Guidelines Manual § 2D1.1(b)(1) (1989) (hereinafter U.S.S.G. § -)•

III.

Heldberg contends that the evidence presented in the presentence report shows that it is clearly improbable that the handgun was connected to the importation of a controlled substance. He asserts that the fact that the firearm was unloaded, and not on his person, demonstrates a clear improbability that it was possessed in connection with the importation of controlled substances. He argues further that because he imported only a user’s quantity of controlled substances, it was improper to enhance his sentence based on the court’s finding that he was a street dealer of drugs. We review a district court’s application of the Sentencing Guidelines de novo. United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir.1989). We review a district court’s conclusion that a defendant possessed a firearm during the commission of an offense for clear error. Id. at 1296.

Heldberg relies on our decision in United States v. Restrepo and the Fifth Circuit’s opinion in United States v. Vasquez, 874 F.2d 250 (5th Cir.1989), in support of his contentions. His reliance is misplaced. In Restrepo, we held that “in applying § 2Dl.l(b)(l), the court need not find a connection between the firearm and the offense. If it finds that the defendant possessed the weapon during the commission of the offense, the enhancement is appropriate.” Id. at 1296 (emphasis in original). The district court in Restrepo applied section 2Dl.l(b)(l) because the arresting officers found a loaded .32 caliber automatic pistol hidden between the box spring and the mattress of defendant’s bed. Id. at 1295. Restrepo was convicted of distribution of a controlled substance. Id. The evidence showed that some of the sales were made at Restrepo’s residence. Id. The commentary to the sentencing guidelines contains the following discussion:

The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.

U.S.S.G. § 2D1.1(b)(1) at commentary n. 3.

Restrepo argued that the “clearly improbable” connection exception contained in the commentary quoted above was applicable to the facts in his ease. In rejecting his contention, we explained:

Restrepo argued for the application of the exception at his sentencing hearing. The court distinguished this case from an example in the Guidelines Commentary.

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Cite This Page — Counsel Stack

Bluebook (online)
907 F.2d 91, 1990 U.S. App. LEXIS 9840, 1990 WL 82182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-frederick-william-heldberg-ca9-1990.