United States v. Steven R. Hollander

287 F. App'x 74
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 23, 2008
Docket07-15453
StatusUnpublished
Cited by1 cases

This text of 287 F. App'x 74 (United States v. Steven R. Hollander) 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. Steven R. Hollander, 287 F. App'x 74 (11th Cir. 2008).

Opinion

*75 PER CURIAM:

Steven R. Hollander appeals his sentence of 46 months’ imprisonment for conspiracy to possess with intent to distribute Schedule III and IV controlled substances, under 21 U.S.C. §§ 841(b)(1)(D), 846, and 18 U.S.C. § 2. Hollander raises several arguments on appeal. For the reasons set forth below, we affirm.

I.

Hollander first argues that the government should not have been permitted to argue at sentencing that his sentence could be enhanced based on guns that his coconspirators possessed. His reasoning is that the government waived the argument because it did not object to the PSI’s exclusive reliance on the gun that Hollander surrendered to probation as the basis for the gun enhancement. In support of his argument, Hollander notes that Fed. R.Crim. P 32(f) requires parties to object to the PSI within 14 days of receiving it.

“We review the district court’s findings of fact under U.S.S.G. § 2Dl.l(b)(l) for clear error, and the application of the Sentencing Guidelines to those facts de novo.” United States v. Pham, 463 F.3d 1239, 1245 (11th Cir.2006) (per curiam) (internal quotation marks omitted).

We reject Hollander’s waiver argument because district courts are not bound to apply the Guidelines in the manner proposed in the PSI. United States v. Jones, 899 F.2d 1097, 1102 (11th Cir.1990) (explaining that the PSI addendum does not limit the objections cognizable on appeal because, inter alia, the district court is not bound by the factual findings or Guidelines application contained in the PSI), overruled in part on other grounds, United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (per curiam). Additionally, while district courts are not required to consider the merits of objections to the PSI or motions for downward departure that were not timely raised, United States v. Quintana, 300 F.3d 1227, 1230 (11th Cir.2002), they are not precluded from doing so by any statute or precedent. Furthermore, the factual basis for the enhancement, i.e. the co-conspirators’ gun possession, was included in the PSI. Accordingly, because the district court was free to apply the Guidelines based on the undisputed facts in the PSI, there was no error, and Hollander’s waiver argument fails.

II.

Hollander further argues that the possession of guns by his co-conspirators was unforeseeable to him because there was no evidence that (1) he had ever been in Florida or had knowledge of the manner in which the drugs were distributed; (2) he had ever met Julio Jelves; or (3) there were conversations involving guns or protection. Additionally, Hollander argues the conspiracy was not a typical drug conspiracy because it did not involve the transportation or storage of large quantities of street drugs.

“The § 2Dl.l(b)(l) enhancement may be applied when the firearm is possessed by a co-conspirator.” Pham, 463 F.3d at 1245. “The enhancement applies to a co-conspirator when the government establishes by a preponderance of the evidence that (1) the possessor of the firearm was a co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the defendant was a member of the conspiracy at the time of possession, and (4) the co-conspirator possession was reasonably foreseeable by the defendant.” Id. (internal quotation marks omitted). Hollander does not challenge the district court’s finding with respect to the first three elements. Hollander is arguing that, given the nature of the conspir *76 acy, possession of guns by his co-conspirators was not foreseeable.

“This court has held that ‘protestations that [the defendants] were in fact unaware of the firearm possession [of a co-conspirator] do[es] not upset the district court’s finding that the possession of the firearm was reasonably foreseeable.” United States v. Pessefall, 27 F.3d 511, 515 (11th Cir.1994) (alterations in original) (internal quotation marks omitted). Furthermore, we have found it reasonably foreseeable that a co-conspirator would carry a firearm while transporting thirteen kilograms of cocaine. United States v. Freyre-Lazaro, 3 F.3d 1496, 1506 (11th Cir.1993). In Pham, where the drug conspiracy involved more than 70,000 MDMA (“ecstasy”) pills, as well as more than 5 kilograms of cocaine, we stated that the district court did not clearly err in finding that a co-conspirator’s gun possession was reasonably foreseeable because of the “vastness of the conspiracy and the large amount of drugs and money being exchanged.” Pham, 463 F.3d at 1246.

We conclude that the district court did not clearly err by finding that the possession of a firearm was foreseeable because the quantity of drugs was the Guidelines-equivalent of 59.99 kilograms of marijuana and the foreseeability of a co-conspirator possessing a firearm can be based on the quantity of drugs involved. See Pessefall, 27 F.3d at 515. While this case did not involve street drugs, the district court specifically found that the quantity of illegal drugs involved in the conspiracy here was “breath-taking.” Accordingly the district court did not err in applying the firearm enhancement.

III.

Hollander next argues that the district court erred by denying safety-valve relief based on his co-conspirators’ possession of firearms. He bases his argument on our decision in United States v. Clavijo, 165 F.3d 1341, 1343-44 (11th Cir.1999) (per curiam), that “possession” of a firearm within the meaning of the safety-valve provision of U.S.S.G. § 501.2(a)(2), does not include possession of a firearm by a co-conspirator. Hollander concedes that re-sentencing is not necessary when a district court incorrectly calculates the Guidelines but would have imposed the same sentence if its calculation had been correct. Hollander argues, however, that the resulting sentencing must still be substantively reasonable, and his was not.

The Sentencing Guidelines provide for a two-level reduction in the offense level for certain drug-related crimes if the defendant meets five criteria as set forth in U.S.S.G. § 5C1.2.

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Bluebook (online)
287 F. App'x 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-steven-r-hollander-ca11-2008.