United States v. Jerry Donald Stewart

926 F.2d 899, 91 Cal. Daily Op. Serv. 1371, 91 Daily Journal DAR 2193, 1991 U.S. App. LEXIS 2783, 1991 WL 20075
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 25, 1991
Docket90-30016
StatusPublished
Cited by66 cases

This text of 926 F.2d 899 (United States v. Jerry Donald Stewart) 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. Jerry Donald Stewart, 926 F.2d 899, 91 Cal. Daily Op. Serv. 1371, 91 Daily Journal DAR 2193, 1991 U.S. App. LEXIS 2783, 1991 WL 20075 (9th Cir. 1991).

Opinion

D.W. NELSON, Circuit Judge.

Appellant Jerry Donald Stewart appeals his sentence pursuant to the United States Sentencing Guidelines, claiming that the district court should not have enhanced his sentence by two levels for possession of a weapon during a drug offense. We affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

On May 17,1989, a three-count superseding indictment was filed charging Stewart with conspiracy to manufacture, possess, and distribute methamphetamine; manufacture of methamphetamine; and unlawful possession of a machine gun. After several months of plea negotiations, he pleaded guilty to conspiracy limited to the month of February 1988. This count charged him with conspiracy to manufacture, to possess with intent to distribute, and to distribute methamphetamine. The overt act of distribution in furtherance of the conspiracy took place at 8240 McKenzie Highway in Springfield, Oregon, the home of a codefendant. As part of the plea agreement, Stewart admitted possessing a machine gun during the time of the February 1988 conspiracy at Stewart’s home at 88843 Ross Lane in Springfield, but not at 8240 McKenzie Highway. These two sites are approximately 15 miles apart.

Section 2D 1.1(b)(1) of the Sentencing Guidelines provides that the basic offense level should be increased by two levels if “a firearm or other dangerous weapon was possessed during the commission of the [drug] offense.” Id. At the sentencing hearing, the district court stated, “I’m satisfied that the guns that were found at his residence should be included. I can not conclude that in fact they were not used in connection with the drug distribution, manufacture, and sale.” Using § 2D1.1(b)(1), the district court then increased Stewart’s total offense level by two. Stewart appeals.

II.STANDARD OF REVIEW

The application of the Sentencing Guidelines is reviewed de novo. United States v. Diego Restrepo, 884 F.2d 1294, 1295 (9th Cir.1989). We review the district court’s finding that the defendant possessed a firearm during the commission of a narcotics offense for clear error. United States v. Garcia, 909 F.2d 1346 (9th Cir.1990); United States v. Gillock, 886 F.2d 220, 222 (9th Cir.1989).

III.ANALYSIS

According to the Sentencing Guidelines, the trial court must increase the base offense level by two if “a firearm or other dangerous weapon was possessed during commission of the [drug] offense.” § 2D1.1(b)(1). This “reflects the increased danger of violence when drug traffickers possess weapons.” § 2D1.1, comment, (n. 3). This circuit has held that “in applying § 2D 1.1(b)(1), 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.” United States v. Diego Restrepo, 884 F.2d 1294, 1296 (9th Cir.1989) (emphasis original). The Guidelines, however, create an exception. The two-level enhancement should not be applied if it is “clearly improbable that the weapon was connected with the offense.” § 2D1.1, comment, (n. 3) (emphasis added).

Stewart’s first argument is that the Guidelines presume that a weapon is connected to an offense upon proof of mere possession. The burden is then shifted to the defendant to show that the weapon was not connected with the offense. He argues that such presumption and burden shifting violate due process. We have already addressed this argument and held it untenable. Diego Restrepo held that

*901 the language of the Guidelines does not require that a connection be shown. Rather, it requires only that the weapon be possessed during commission of the offense. The Commentary, therefore, creates an exception to the terms of the Guideline, not a presumption that a connection existed. The Due Process Clause does not require that the government prove the absence of every possible exception or mitigating circumstance.

884 F.2d at 1296 (emphasis original). This is consistent with the reasoning of McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). The Supreme Court there held that enhancement of sentences based on sentencing factors which came into play only after a defendant has been found guilty do not violate due process. Since here, as in all Guidelines adjustments, the gun enhancement occurred after the defendant was found guilty of conspiracy, there is no due process viola.tion.

Having disposed of this preliminary challenge, we now must decide if the weapon was “possessed” during the offense, and if so, whether it was “clearly improbable” that it was connected with the offense. Stewart argues that he pleaded guilty to the conspiracy count concerning activity in February 1988 at McKenzie Highway. Though he admits possessing a weapon in February 1988, he argues that the plea agreement expressly states that the weapon was possessed at his home at Ross Lane, 15 miles away.

Our circuit has gradually enlarged the geographical idea of “possession.” In United States v. Heldberg, 907 F.2d 91 (9th Cir.1990), the court affirmed an enhancement where an unloaded firearm was locked in a briefcase in the trunk of a car, in which the defendant was arrested for the importation of controlled substances found in his pockets. Similarly, United States v. Garcia, 909 F.2d 1346 (9th Cir.1990), determined that the defendant possessed a loaded handgun found under the front floormat, though he was in the backseat. In addition, Diego Restregó upheld possession where a loaded automatic pistol was discovered between the mattress and box spring of the defendant’s bed in a room from which drugs were dealt.

Yet, as Stewart correctly observes, these cases are different from his. A 15-mile gap between drugs and a gun is a far cry from bedrooms in the same house or different parts of the same car. Stewart relies on a Fifth Circuit case for facts more closely aligned with his. In United States v. Vasquez, 874 F.2d 250 (5th Cir.1989), a loaded pistol was found in the defendant’s bedroom, which was several miles away from the scene of a drug sale. The court there said it would be a “strained interpretation” of § 2D1.1(b)(1) to conclude that the defendant possessed the weapon during the offense. Id. at 251.

While Stewart may believe that Vasquez

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926 F.2d 899, 91 Cal. Daily Op. Serv. 1371, 91 Daily Journal DAR 2193, 1991 U.S. App. LEXIS 2783, 1991 WL 20075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jerry-donald-stewart-ca9-1991.