United States v. Shults

68 F. App'x 648
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 26, 2003
DocketNos. 01-6532, 01-6533, 01-6534
StatusPublished
Cited by8 cases

This text of 68 F. App'x 648 (United States v. Shults) 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. Shults, 68 F. App'x 648 (6th Cir. 2003).

Opinion

OPINION

MOORE, Circuit Judge.

Defendants-Appellants Erwin Shane Stamper (“Stamper”), Jimmy Lynn Webb (“Webb”), and Bobby Lynn Shults (“Shults”) (collectively “Defendants”) appeal their two-level sentence enhancements under United States Sentencing Guidelines (“U.S.S.G.”) § 2Dl.l(b)(l) for possession of a firearm in connection with a drug offense. The Defendants were indicted for, among other things, using and carrying a firearm in relation to a drug-trafficking offense in violation of 18 U.S.C. § 924(c)(1) and conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846, and 841(b)(1)(B). Defendants pleaded guilty to that conspiracy count in the indictment, and all other charges were dismissed. The Defendants subsequently objected to the two-level enhancements in their presentence investigative reports (“PSR”), and the district court overruled these objections. The Defendants timely appealed. In addition, Shults filed two pro [650]*650se briefs challenging his conviction raising issues ranging from ineffective assistance of counsel to the involuntariness of his plea. We AFFIRM the two-level sentence enhancements as to all Defendants and Shults’s conviction.

I. BACKGROUND

On May 31, 2001, Webb and Shults received approximately two pounds of cocaine from Stamper that they arranged to sell to another individual. Unbeknownst to them,1 the buyers were undercover agents. Webb and Shults drove in one car to the Hillcrest Inn motel in White Pine, Tennessee, where the transaction was scheduled to take place. While en route, Webb told Shults that Stamper was armed and was following them in his white pickup truck in order to protect his interest in the transaction.

Once they arrived at the motel, Shults entered a room to consummate the transaction, while Webb waited outside the motel room door and Stamper waited in his vehicle parked at least thirty-five yards, or 105 feet, away.2 Stamper had backed his truck into a parking spot so that he was facing the doorway to the room. Within moments, the undercover agents arrested Webb outside of the motel. Stamper contends that from his vantage point, he could not tell that they were law enforcement because they were not wearing any clothing that identified them with the FBI.3 Once the agents descended on Webb, Stamper attempted to drive away, but officers blocked his vehicle with their own to prevent his escape. During Webb’s arrest. Stamper never tried to intercede and never displayed his pistol. After Webb was taken down, uniformed FBI agents arrested Stamper in his truck. The officers found a Beretta 9 mm semi-automatic pistol in the waistband of Stamper’s swimming trunks. Although there was no cartridge in the chamber, the pistol had a fully loaded magazine and an additional magazine of ammunition was recovered from Stamper’s truck.

The Defendants were indicted in a ten-count indictment charging them with conspiracy to possess with the intent to distribute and to distribute over 500 grams of cocaine and using and carrying a firearm in connection with drug trafficking. After unsuccessful attempts to suppress evidence and dismiss the indictment, the Defendants pleaded guilty to one count in the indictment, conspiracy to distribute more than 500 grams of cocaine. The plea agreements contained factual bases admitting to the conspiracy and to Stamper’s gun possession. Nonetheless, the Defendants filed objections to their PSRs because they contained sentence enhancements based on the gun found on Stamper. In their objections, Webb and Shults contended that they did not know that Stamper had a gun on him at the time. Stamper argued that he had the gun and ammunition because he intended to shoot targets later that day.4

On November 5, 2001, the district court held an evidentiary hearing to consider evidence on the sentence enhancement. [651]*651The government catalogued its relevant evidence: (1) the magistrate judge’s probable cause order determining that Stamper was acting as a lookout at the Hillcrest Inn motel; (2) Shults’s signed statement that while driving to the Hillcrest Inn, Webb told him that Stamper had a gun to protect his interest in the cocaine; (3) the agreed factual bases in the Defendants’ plea agreements;5 (4) the magistrate judge’s factual findings in his report and recommendation denying Stamper’s motion to suppress evidence of the gun; and (5) the fact that Stamper had been in possession of firearms and marijuana on two previous occasions in the few months preceding his arrest.

At the hearing, Stamper called Farrow as a witness hoping to elicit testimony that cocaine dealers trafficking large amounts of drugs would not ordinarily have weapons involved in their drug transactions. In addition, Stamper planned to show through Farrow’s testimony that the type of gun and ammunition and the lack of a cartridge in the chamber showed that he did not possess the weapon in furtherance of the drug crime. Indeed, Stamper was able to get Farrow to admit on the stand that had Stamper so desired he could have parked closer to the motel room. However, Farrow’s answers also aided the government because he noted that the Beretta 9 mm is the standard issued sidearm for this nation’s armed forces and he testified that the officers conducting the raid likely were dressed in attire emblazoned with law enforcement emblems.

The district court ultimately decided to overrule the objections and to accept the calculations contained in the PSRs. In its order, the district court noted Stamper’s attempt to show that it was “clearly improbable” that the 9 mm pistol was carried in connection with the drug deal because:

he always carried a gun; the gun was not particularly suitable for someone who was “riding shotgun” on the cocaine transaction; he did not use the gun or attempt to intervene when (arguably) unmarked officers moved in for the arrest; and, when he was arrested, there was no cartridge in the firing chamber of the (loaded) gun.

Joint Appendix (“J.A.”) at 101 (Dist Ct. Or.). Nonetheless, the district court determined that “it was by no means clearly improbable that Mr. Stamper’s presence at the motel was to provide armed protection for his co-conspirators’ transaction.” Id. With respect to Webb and Shults, the district court determined that because both men knew that an armed Stamper followed them and because both admitted to these facts in their agreed factual bases, “it was reasonably foreseeable to them that a weapon would be present at the transaction.” Id. The district court sentenced Stamper and Webb to sixty-three months in prison and four years of supervised release and Shults to one hundred months in prison and four years of supervised [652]*652release. The Defendants each timely appealed their sentences. Shults also appeals his conviction.

On appeal, Stamper’s primary argument is that the weapon was not connected with the drug transaction taking place at the motel.

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Bluebook (online)
68 F. App'x 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shults-ca6-2003.