United States v. Kimberly Shea Tebrugge

134 F. App'x 291
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 17, 2005
Docket04-14726
StatusUnpublished
Cited by2 cases

This text of 134 F. App'x 291 (United States v. Kimberly Shea Tebrugge) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Kimberly Shea Tebrugge, 134 F. App'x 291 (11th Cir. 2005).

Opinions

PER CURIAM:

Kimberly Shea Tebrugge directly appeals her 12-month and 1-day sentence for knowingly concealing and possessing stolen firearms, in violation of 18 U.S.C. § 922(j) and 924(a)(2). Tebrugge argues on appeal that the district court (1) clearly erred in not adjusting her guideline offense level based on minor role, pursuant to U.S.S.G. § 3Bl.l(b); (2) violated her Fifth Amendment right not to incriminate herself at sentencing; and (3) violated her Sixth Amendment right to a jury trial in considering the federal guidelines in sentencing her, in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons set forth more fully below, we affirm Tebrugge’s sentence.

A federal grand jury returned an indictment, charging Tebrugge and her husband, Kevin R. Tebrugge, with the above-referenced offense and listing the firearms that the Tebrugges allegedly possessed and concealed. Kimberly Tebrugge subsequently entered into a plea agreement, whereby she agreed to plead guilty to this offense in exchange for the government agreeing to dismiss the remaining count in her indictment.

As part of this plea agreement, Tebrugge conceded that the government could prove the following facts beyond a reasonable doubt. In November 2002, Jack Neely, Sr., provided to the Tebrugges his furnished home in Tallahassee, Florida, which contained a locked gun safe. After Kimberly Tebrugge found the combination to this safe, she and Kevin Tebrugge opened it. In June 2003, the Tebrugges moved out of this home, at which time they stole the 22 firearms — the same firearms listed in their indictment — from the gun safe in the home. The Tebrugges then concealed these firearms in a storage facility in Tallahassee. Approximately five days later, the Tebrugges removed the firearms from the storage facility; transported them to Wilkes County, North Carolina; and left them with Alan Brown, one of Kevin Tebrugge’s former colleagues. All of these stolen firearms were manufactured outside the state of Florida and, thus, had been shipped or transported in interstate commerce before they were stolen.1

During Tebrugge’s plea colloquy, she verified that she had read and signed the plea agreement, and that the facts contained within it were true. She clarified, however, that (1) after she opened the safe, her husband was the one who had removed the firearms; and (2) she had committed the acts on her husband’s instruction because she had been scared of what, otherwise, would have happened. After Tebrugge pled guilty, the court found that (1) the facts were sufficient to support her plea, (2) Tebrugge was competent to plead guilty, and (3) her plea was knowing and voluntary. The court, therefore, accepted Tebrugge’s plea and adjudicated her guilty.

[294]*294Tebrugge’s presentence investigation report (“PSI”) calculated her base offense level as 12, pursuant to U.S.S.G. § 2K2.1(a)(7). The probation officer recommended a 4-level increase, pursuant to U.S.S.G. § 2K2.1(b)(l)(B), because the offense involved 22 firearms, and a 3-level downward adjustment, pursuant to U.S.S.G. § 3E1.1, for acceptance of responsibility. The officer, however, did not recommend an adjustment based on Tebrugge’s role in the offense. With an adjusted offense level of 13 and a criminal history category of I, Tebrugge had a resulting guideline range of 12 to 18 months’ imprisonment. The PSI also noted that the victim had reported a total loss of $7,000, based on two missing shotguns and damage to the recovered firearms.

Tebrugge objected to the PSI’s (1) statement that she removed the firearms from the safe and put them in a storage facility; (2) findings as to restitution; (3) failure to recommend a downward departure based on Tebrugge’s diminished capacity and the victim’s wrongful behavior; and (4) failure to recommend an adjustment for minor role, pursuant to U.S.S.G. § 3B1.2(b). In response to Tebrugge’s § 3B1.2(b) objection, the probation officer contended that Tebrugge’s involvement in the offense included (1) obtaining the combination to the safe in which the firearms were located; (2) opening the safe so that the firearms could be removed; and, (3) helping, at least passively, to transport these firearms first to a storage facility and later to another location in North Carolina. The officer also argued that Tebrugge was not charged in a conspiracy and only was being held accountable for her own acts.

At the first sentencing hearing, Tebrugge adopted her husband’s pretrial motion to declare the federal guidelines unconstitutional, in light of Blakely, and renewed her motion for a § 3B1.2(b) adjustment.2 When sentencing recommenced, Tebrugge testified that, during the time period of the offense, her husband, who suffered from bipolar disorder, had become irate and violent and had physically abused her, resulting in her having to contact the police. On the day that she opened the firearm safe, she had taken medication, had been instructed to open the safe, and had not see her husband remove the firearms. Tebrugge, however, later learned that her husband had removed these firearms and had placed them in a storage facility that she previously had rented to store valuables. When she and her husband had traveled to North Carolina, she had not seen firearms being unloaded and had not had any conversations with Brown, their colleague who was storing the firearms. After this trip, she had had two conversations with Brown, during which (1) Brown had told her that she and her husband should come back for the firearms, and (2) she had told Brown that her husband had suggested removing the firearms’ serial numbers.

On cross-examination, Tebrugge stated that (1) she had paid Neely, the owner of the stolen firearms, $900 a month; and (2) she had not known if this amount was for rent or to purchase the furniture inside the home. After she opened the safe with the firearms, she had gone to bed and, thus, had not known what had happened to the items in the safe. She also stated that she only had assumed that she and her husband were taking the firearms to North Carolina, and that she had slept during most of their trip.

[295]*295The prosecutor then asked Tebrugge if she had taken furniture from Neely’s home, to which Tebrugge answered affirmatively. Tebrugge, nevertheless, objected to this question, arguing that (1) she did not wish to incriminate herself because she had a pending state charge relating to her taking this furniture, and (2) the question was not within the proper scope of cross-examination. The court overruled this objection, concluding that Tebrugge’s knowledge about the stolen furniture was directly relevant to her knowledge about, and involvement with, the stolen firearms. Nevertheless, the court gave Tebrugge the option of either asserting her Fifth Amendment privilege and withdrawing her direct examination from the court’s consideration, or answering all the prosecutor’s questions that were within the scope of cross-examination.

When Tebrugge responded that she wished to proceed with her testimony, she replied that she had thought that she and her husband were going to pay for the furniture once her husband had his medical license reinstated.

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Bluebook (online)
134 F. App'x 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kimberly-shea-tebrugge-ca11-2005.