RECOMMENDED FOR FULL-TEXT PUBLICATION 16 United States v. Dunlap, et al. Nos. 98-3855/3856 Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0116P (6th Cir.)
File Name: 00a0116p.06
persuasive, either individually or collectively. Accordingly, the judgments of sentence are AFFIRMED.
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
_________________
;
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Nos. 98-3855/3856
v.
>
JAMES DUNLAP (98-3855)
and JAKHAN THOMAS
Defendants-Appellants.
(98-3856),
1
Appeal from the United States District Court for the Southern District of Ohio at Columbus.
No. 97-00128—Edmund A. Sargus, Jr., District Judge.
Argued: September 22, 1999 Decided and Filed: March 31, 2000 Before: KRUPANSKY* and NORRIS, Circuit Judges;
GWIN, District Judge.
*
The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by designation.
2 United States v. Dunlap, et al. Nos. 98-3855/3856 Nos. 98-3855/3856 United States v. Dunlap, et al. 15
_________________ powerless to revisit, modify, amend, abrogate, supersede, set aside, vacate, avoid, nullify, rescind, overrule, or reverse any COUNSEL prior Sixth Circuit panel’s published precedential ruling of law. Washington, 127 F.3d at 516-17 & n.9; Smith, 73 F.3d ARGUED: Terry K. Sherman, Columbus, Ohio, Frederick at 1418. D. Benton, Jr., Columbus, Ohio, for Appellants. David J. Bosley, ASSISTANT UNITED STATES ATTORNEY, In a bid to surmount that obstacle to appellate relief, Columbus, Ohio, for Appellee. ON BRIEF: Terry K. Thomas has argued that, because the 100 to 1 sentencing ratio Sherman, Columbus, Ohio, Frederick D. Benton, Jr., is purportedly unfair irrespective of its previously adjudicated Columbus, Ohio, for Appellants. David J. Bosley, constitutionality, the district court abused its discretion by ASSISTANT UNITED STATES ATTORNEY, Columbus, failing to award him a downward sentencing departure under Ohio, for Appellee. 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0 (Policy Statement)
by reason thereof. However, although a sentencing court’s _________________ decision to depart from the Guidelines is reviewable for abuse of discretion, Koon v. United States, 518 U.S. 81, 96-100 OPINION (1996), its decision not to depart is insulated from appellate _________________ scrutiny, unless the sentencing judge legally erred by failing to comprehend the lawful extent of his or her power to depart.
KRUPANSKY, Circuit Judge. The defendants- United States v. Coleman, 188 F.3d 354, 357 (6th Cir. 1999)
appellants James E. Dunlap, also known as “Fatty” (en banc); United States v. Landers, 39 F.3d 643, 649 (6th (“Dunlap”), and Jakhan Thomas, also known as “Ja-Con” Cir. 1994). (“Thomas”), have each contested his respective sentence imposed following his conviction entered upon his guilty plea In the case sub judice, the initial forum possessed no lawful to conspiring to possess and distribute cocaine base (or authority to depart downwardly from Thomas’ Guidelines- “crack”). Both defendants have assailed their sentencing mandated sentencing range by reason of the 100 to 1 enhancements for possession of a dangerous weapon in sentencing disparity at issue; thus no error of law infected its connection with that offense. Dunlap has additionally failure to do so. See United States v. Watkins, 179 F.3d 489, challenged the district court’s quantification of cocaine base 504 (6th Cir. 1999) (remarking that “[t]his Court has held attributable to him, whereas Thomas has disputed the repeatedly that objections to the Sentencing Guidelines’ sentencing bench’s rejection of his application for a disparate punishments for crimes involving crack cocaine and downward sentencing departure. cocaine powder are meritless and the disparity is insufficient grounds for downward departure from guideline sentences.”)
Beginning on approximately December 1, 1996, and (emphasis added) (quoting United States v. Welch, 97 F.3d continuing until July 30, 1997, agents of the Columbus Police 142, 154 (6th Cir. 1996) (citations omitted)); United States v. Department (“CPD”) and the Federal Bureau of Alcohol, Gaines, 122 F.3d 324, 328-31 (6th Cir. 1997) (reversing a Tobacco, and Firearms (“ATF”) jointly investigated a major trial court’s downward sentencing departure anchored in the narcotics consortium which encompassed Dunlap and 100 to 1 crack-to-power cocaine differential). Thomas, together with at least three additional confederates. On December 14 or 15, 1996, surveillance operatives This review has carefully considered each argument videotaped Thomas’ sale of a Glenfield .22 caliber (model no. advanced by the defendants-appellants but finds none 14 United States v. Dunlap, et al. Nos. 98-3855/3856 Nos. 98-3855/3856 United States v. Dunlap, et al. 3
rather than “personal use,” crack;13 and further, that said 60) sawed-off rifle1 to an unidentified confidential informant crack was either the property of Dunlap, jointly possessed by (“CI”) for $50 at the CI’s residence (986 Seymour Avenue, Dunlap and Tyson, and/or foreseeably possessed by Tyson Columbus, Ohio).2 During that exchange, Thomas weighed within the orbit of his cooperative criminal relationship with two grams of cocaine base on the CI’s digital scale, although Dunlap. Accordingly, the trial court’s imputation, against the CI did not then purchase any of that crack. Dunlap, of the 44 grams of crack uncovered at 3114 Allegheny Avenue was untainted by reversible error. Thereafter, the CI and covert investigators regularly purchased crack cocaine directly from Thomas. On March Additionally, Thomas has contested the constitutionality of 23, 1997, in response to the CI’s pager signal and a follow-up the Congressionally-mandated 100 to 1 statutory sentencing telephone conference, Thomas personally delivered 6.2 grams disparity between crack cocaine and powder cocaine, whereby of crack to the CI’s residence, which he (Thomas) sold to an a given quantity of cocaine base triggers a penalty equivalent undercover agent. On June 19, 1997, also at the CI’s to that of one hundred times that weight of cocaine powder. domicile, a clandestine investigator posing as a customer See 21 U.S.C. § 841(b)(1) (A) & (B); U.S.S.G. § 2D1.1(c) solicited twelve grams of crack from Thomas. Using the CI’s (Drug Quantity Table). However, in his brief, Thomas residential telephone, Thomas contacted one of his conceded that “this issue has been previously decided” by the accomplices, Frank Woods, to obtain the telephone number Sixth Circuit. See, e.g., United States v. Smith, 73 F.3d 1414, of Bryan Williams, a supplier of narcotics to the syndicate. 1417-18 (6th Cir. 1996) (overruling a constitutional attack Following Thomas’ telephone call to Williams, Thomas against the subject statutory sentencing disparity by applying instructed the CI to drive him to 1418 Clifton Avenue, pertinent binding Sixth Circuit precedents); United States v. Columbus, Ohio, where Thomas purchased crack from an Washington, 127 F.3d 510, 516-18 & n.9 (6th Cir. 1997), cert. unidentified male. The CI then returned Thomas to his (the denied, 118 S. Ct. 2718 (1998). This panel is precluded from CI’s) residence, where Thomas, using the CI’s digital scale, accommodating Thomas’ invitation to reconsider the determined the weight of his recently-acquired contraband at previously adjudicated constitutional issue which he has eleven grams. Because that quantity fell short of satisfying framed, because a subsequent panel of this circuit court is the undercover detective’s order, Thomas added several rocks of crack which he took from a plastic bag inside his sock. Crime laboratory technicians later determined that the 13 aggregate amount of cocaine base vended by Thomas on that Standing alone, 44 grams of cocaine base would incite an offense level of 30. U.S.S.G. § 2D1.1(c)(5). (The maximum possible overall occasion weighed 11.8 grams. Guidelines offense level is 38, whereas the lowest is six). The seizure of a major volume of cocaine base at a fortified high-traffic “crack house” Approximately one month later, on July 15, 1997, again at necessarily raises the reasonable inference that those illegal stimulants the CI’s residence, a law enforcement officer masquerading were possessed for distribution purposes. See United States v. Harris, 192 F.3d 580, 589 (6th Cir. 1999) (ruling that the government had proved as a crack addict offered to purchase one ounce of the at trial beyond a reasonable doubt, via circumstantial evidence, that the defendant had possessed a mere 5.9 grams of crack for distribution rather than personal consumption, because the defendant carried that cocaine 1 base, packaged in twenty small individually wrapped units for convenient The rifle’s stock had been re-fashioned to resemble a pistol’s grip, street dispensation, while armed, in an urban district reputed for narcotics and its serial number had been obliterated. activity). The sentencing court’s discrediting of Tyson’s assertion that he 2 possessed those drugs for personal consumption is not subject to appellate Peace constables surreptitiously recorded numerous illegal re-evaluation. United States v. Gessa, 57 F.3d 493, 496 (6th Cir. 1995). transactions at that location, including those described herein, via a clandestine video and audio taping system.
4 United States v. Dunlap, et al. Nos. 98-3855/3856 Nos. 98-3855/3856 United States v. Dunlap, et al. 13
controlled substance from Thomas. In response, Thomas v. Owusu, 199 F.3d 329, 347-48 (6th Cir. 2000); United dialed a beeper number, which subsequently prompted a States v. Hill, 79 F.2d 1477, 1485-86 (6th Cir. 1996); United return call from defendant Dunlap via a telephone registered States v. Cochran, 14 F.3d 1128, 1132 (6th Cir. 1994). to co-conspirator Dashawn3 Tyson at 3114 Allegheny Avenue, Apartment C, Columbus. Following his conversation with Next, Dunlap has faulted the district judge’s attribution to Dunlap, Thomas instructed the CI to drive him and their him of the 44 grams of crack seized during the Allegheny prospective client (the covert detective) to “Chuck’s Carry- Avenue raid. As stated previously, a convicted offender Out,” 3140 Allegheny Avenue, Columbus, which was located should be charged, at sentencing, with all unlawful acts a short distance from Tyson’s domicile. Thomas then committed within the scope of his offense of conviction initiated a call from a nearby public telephone booth; minutes (“relevant conduct”), including uncharged narcotics later, Dunlap arrived at the scene. Thomas immediately foreseeably possessed by his compatriot in furtherance of exited the CI’s automobile, entered Dunlap’s vehicle, and their coordinated distribution enterprise. U.S.S.G. momentarily returned to the CI’s vehicle toting 24.8 grams of § 1B1.3(a)(1)(A) & (B); United States v. Davern, 970 F.2d crack cocaine, which he negotiated to the incognito 1490, 1493-94 (6th Cir. 1992) (en banc); see U.S.S.G. investigator for $1,080. Unbeknownst to Thomas and § 1B1.3, comment. (n.2) (positing that a conspirator is Dunlap, officers had previously registered the serial numbers accountable for narcotics possessed by his cohort if that of those Treasury bills. possession was both in furtherance of, and reasonably foreseeable in connection with, jointly undertaken criminal Two days later, July 17, 1997, Columbus peace officers activity); United States v. Ledezma, 26 F.3d 636, 646 (6th Cir. executed a search warrant at Tyson’s residence, 3114 1994). “The government bears the burden of proving the Allegheny Avenue, Apartment C. Inside that dwelling, the quantity of drugs chargeable to a defendant for sentencing CPD raiders discovered Tyson and Williams, accompanied by purposes by a preponderance of the evidence. Like other two other individuals. Detectives surfaced United States factual findings, the sentencing court’s drug quantity currency totaling $2,700, including $800 of the recorded bank determination is reviewable only for clear error.” Gessa, 57 notes which the undercover buyer had used to purchase crack F.3d at 496 (citations omitted). from Dunlap, through Thomas, two days previously, concealed within a safe inside an upstairs bedroom closet, Dunlap has claimed that he did not own the 44 grams of together with 25.1 grams of crack. An additional $800 in cocaine base discovered at Allegheny Avenue. In support, he cash was also discovered in the closet. An additional 18 reiterated his allegation that he lacked unlimited access to the grams of cocaine base was found in the kitchen near a loaded apartment whereas numerous unrelated individuals frequented nine millimeter Highpoint handgun. The officers also located that locale for narcotics transfers and/or consumption; and he 0.9 grams of cocaine base on the living room floor.4 A has touted Tyson’s proclamation that he owned all of the implicated cocaine base for his personal use rather than conspiratorial distribution. However, the proof, recounted 3 above, that Dunlap engaged in concerted cocaine trafficking Tyson and Dunlap had each executed, as co-tenants, a rental agreement for that apartment. with Tyson at and from the Allegheny Avenue address sufficiently evidenced, by a preponderance, that the 4 In total, law enforcement personnel seized 44 grams of cocaine base, significant quantity of crack in question was “distribution,”
coupled with 45.4 grams of marijuana, during the July 17, 1997 search of 3114 Allegheny Avenue. The marijuana is not material to the instant appeal.
12 United States v. Dunlap, et al. Nos. 98-3855/3856 Nos. 98-3855/3856 United States v. Dunlap, et al. 5
cannot be gainsaid, the trial court’s two-point weapons loaded Browning .380 pistol, together with an ammunition enhancement of Thomas’ offense level was not clearly magazine, was secreted within a living room couch, and a gun erroneous. case containing two additional ammunition magazines was hidden behind that couch. The investigators also uncovered The district court similarly added the two-point weapons two electronic pagers plus a purchase receipt for a beeper sold enhancement to Dunlap’s offense level tabulation, finding to James Dunlap, along with correspondence and photographs that he actually or constructively possessed one, or both, of belonging to Dunlap. A digital scale was found on the the two loaded handguns confiscated at the crack den by CPD kitchen counter. operatives on July 17, 1997. Dunlap has contended that he did not own either of those pistols, that he lacked ready access On October 14, 1997, a federal grand jury returned a nineto that address (3114 Allegheny Avenue, Apartment C) count indictment against Dunlap, Thomas, Woods, Williams, because Tyson solely resided there, and that he lacked actual and Tyson. Count one alleged that, commencing around knowledge of the existence of the subject pistols. However, December 1, 1996 and continuing until October 14, 1997, the Dunlap had co-signed the lease for that apartment, where he five defendants had conspired to possess with intent to frequently conducted narcotics trade. During the CPD raid, distribute, and/or distribute, more than five grams of cocaine agents surfaced certain of Dunlap’s possessions, including a base, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(iii), retail receipt memorializing Dunlap’s purchase of a and § 846. Count one further specified that the defendants telephonic pager, photographs of Dunlap, and mail addressed conducted crack trafficking from, inter alia, 986 Seymour to Dunlap at that location. Additionally, on July 15, 1997, Avenue and 3114 Allegheny Avenue, Apartment C; and that Dunlap had personally responded to Thomas’ telephone page Dunlap, Thomas, and Tyson used firearms in furtherance of by placing a return call from the Allegheny Avenue residence, the charged conspiracy. Additional counts alleged specific which culminated in Dunlap’s sale, through Thomas, of 24.8 instances of crack distribution by Dunlap, Thomas, and/or grams of crack to an incognito detective. Additionally, other indicted participants in the ring.5 surveillance intelligence revealed that Dunlap had been present at the Allegheny Avenue apartment on July 16, 1997, Ultimately, Dunlap and Thomas each pleaded guilty, under the day preceding the warrant execution which would Fed. R. Crim. P. 11, to the first count, in exchange for ultimately yield the two firearms. dismissal of all other charges. The district court sentenced both defendants on July 16, 1998. During his sentencing Consequently, no clear error invalidated the district court’s proceeding, Thomas opposed the United States’ requested finding that Dunlap jointly occupied and/or controlled the two-level augmentation to his offense level for possession of Allegheny Avenue apartment as a co-tenant with his a firearm, and also moved for a downward departure from his confederate Tyson. Dunlap exercised access, control, and/or sentencing range mandated by the United States Sentencing dominion over those premises, which served as a “safe house” for the crack cartel’s distribution activities. Furthermore, the presence therein of weapons owned by his 5 roommate/accomplice Tyson which were connected to the Counts two, three, five, six, and seven averred that Thomas conspiracy’s narcotics business was reasonably foreseeable. unlawfully possessed with intent to distribute, or distributed, cocaine base, on December 14, 1996, March 23, 1997, June 19, 1997, and July 15, Hence, the sentencing court properly imputed constructive 1997 (two counts), respectively. Counts six and eight alleged that Dunlap possession of those firearms to Dunlap, even if he lacked possessed cocaine base with intent to distribute on July 15, 1997 and July actual knowledge. U.S.S.G. § 1B1.3(a)(1)(B); United States 17, 1997, respectively. Count four implicated only Frank Woods, and count nine concerned only Bryan Williams.
6 United States v. Dunlap, et al. Nos. 98-3855/3856 Nos. 98-3855/3856 United States v. Dunlap, et al. 11
Guidelines (effective November 1, 1997) (“U.S.S.G.”). The (expounding that “[t]he enhancement for weapon possession sentencing bench rejected both of Thomas’ applications, and reflects the increased danger of violence when drug traffickers consequently6condemned him to 108 months of correctional possess weapons.”); Gibson, 135 F.3d at 1128 (“It seems confinement, to be followed by four years of supervised apparent that the policy underlying the possession of a firearm release, and exacted the $100 felony special assessment enhancement is to punish those defendants engaging in drug mandated by 18 U.S.C. § 3013(a)(2)(A). Likewise, at transactions who present, by the possession of the firearm, an Dunlap’s sentencing hearing, the trial judge, after overruling increase in the likelihood of violence at the time of the his objections to the government’s proposed two-point transaction.”); Duncan, 918 F.2d at 651 (“the presence of firearms enhancement to his offense level, as well as firearms increases the level of danger and justifies a stiffer attribution against him of the 44 grams of crack seized during sentence.”); Castillo, 979 F.2d at 10-11 (explaining that the the July 17, 1997 search of 3114 Allegheny Avenue, defendant’s mere possession of a weapon during narcotics committed Dunlap to the United States Bureau of Prisons for commerce, including a firearm which the defendant intended 108 months,7 to be followed by four years of supervised to sell to his drug customer, triggered the section 2D1.1(b)(1) release, and fined him $1,000 plus the $100 mandatory enhancement because the possibility existed that the assessment. defendant “would have used the gun during the drug transaction had he thought it necessary.”) Beyond dispute, On review, Thomas and Dunlap have each challenged the Thomas could have aggressively deployed his rifle, while in district court’s two-degree increase of his base offense level possession of “distribution” crack, at any moment prior to his for possession of a “dangerous weapon,” namely a firearm, transfer of that weapon to the CI. during a controlled substance trafficking offense. U.S.S.G. § 2D1.1(b)(1). A sentencing court’s determination that a Thus, even if Thomas had carried the modified rifle to the convicted defendant possessed a dangerous weapon during CI’s residence with an intent to sell that weapon, the fact the commission of a drug distribution offense constitutes a remains that he also carried that weapon “in connection with” factual finding reviewed for clear error under the a narcotics transgression. See Gibson, 135 F.3d at 1128; preponderance of the evidence standard.8 18 U.S.C. Castillo, 979 F.2d at 10-11. Patently, Thomas has not satisfied his burden of proving the “clear improbability” of any link between the gun and the drugs. He has proffered no 6 The initial court computed Thomas’ sentence by matching his evidence of “special circumstances” which might disqualify offense level (31) with his criminal history category (I), which produced the subject armament from the classification of “criminal an imprisonment range of 108 to 135 months. U.S.S.G. Chap. 5, Pt. A instrumentality” weapons, such as inoperability, status as a (Sentencing Table). Accordingly, Thomas incurred the least punitive valuable collector’s piece, or being a sporting long arm ill detention term permissible under the Sentencing Guidelines. suited for criminal purposes. To the contrary, the weapon at 7 issue was fully serviceable, was not an antique, and had been Like Thomas, Dunlap had merited an offense level of 31 and a modified to facilitate its rapid deployment in a noncriminal history categorization of I; thus, his 108 month penalty was the recreational confrontational context. Because the patent most lenient allowed by the Guidelines. See note 6 above.
connection between the gun and Thomas’ criminal career 8 A finding of fact is clearly erroneous when “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (citation omitted). A reviewing bench should similar offenses implicating most firearms of types not listed in section sustain a sentencing court’s factual finding if it was supported by “some 5845(a)).
10 United States v. Dunlap, et al. Nos. 98-3855/3856 Nos. 98-3855/3856 United States v. Dunlap, et al. 7
§ 3742(e); United States v. Hill, 79 F.3d 1477, 1486 (6th Cir. 1996).
Greer, 588 F.2d 1151, 1155 (6th Cir. 1978). See, e.g., 26 U.S.C. The United States Sentencing Commission’s official § 5845(a), defining “firearm(s)” which are subject to certain special registration requirements and excise taxes to include, inter alia, “(3) a Commentary9 to section 2D1.1 posits, in part, that “[t]he rifle having a barrel or barrels of less than 18 inches in length; [or] (4) a adjustment should be applied if the weapon was present, weapon made from a rifle if such weapon as modified has an overall unless it is clearly improbable that the weapon was connected length of less than 26 inches or a barrel or barrels of less than 16 inches with the offense. For example, the enhancement would not be in length[.]” This circuit has explained: applied if the defendant, arrested at his residence, had an unloaded hunting rifle in his closet.” U.S.S.G. § 2D1.1, The term “firearm,” as set forth in 26 U.S.C. § 5845 (1988), is very narrowly defined to encompass only weapons such as comment. (n.3) (emphases added). Initially, the prosecution machineguns, silencers, sawed-off shotguns and rifles[,] and must prove, by a preponderance of evidence, that “(1) the bombs. Congress required registration of these types of defendant actually or constructively ‘possessed’ the weapon, weapons because it believed that these weapons, by their very and (2) such possession was during the commission of the nature, were extremely dangerous and served virtually no [narcotics] offense.” Hill, 79 F.3d at 1485 (citation omitted). purpose other than furtherance of illegal activity.” The burden then shifts to the defendant to prove the clear United States v. McKelvey, 7 F.3d 236 (Table), 1993 WL 339704, at *6 improbability of any connection between the drug offense and (6th Cir. Sept. 1, 1993) (per curiam) (unpub’d) (emphases added; the weapon. Id. citations omitted).
The district court found that, in mid-December 1996, The McKelvey court further remarked that, via the legislative history Thomas had possessed his modified .22 caliber rifle during of the Gun Control Act of 1968, the commission of a drug trafficking crime. In opposition, Congress noted that the principal purpose of the Act “is to Thomas has contended that the United States failed to prove strengthen Federal controls over interstate and foreign commerce in firearms and to assist the States effectively to regulate firearms traffic within their borders” and that the need to strengthen the controls is based on “the increasing rate of crime minimum indicium of reliability beyond mere allegation.” United States and lawlessness and the growing use of firearms in violent v. Robison, 904 F.2d 365, 371 (6th Cir. 1990) (citations omitted). See crime.”
also United States v. Partington, 21 F.3d 714, 717 (6th Cir. 1994);
Id. at * 6 (brackets and parenthesis omitted) (quoting H.R. Rep. No. 1577, U.S.S.G. § 6A1.3(a) (Policy Statement). “The appellate courts generally 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 4410, 4411- do not review the district court’s determinations regarding witness 15)). Additionally, the McKelvey court underscored that Congress, via credibility.” United States v. Gessa, 57 F.3d 493, 496 (6th Cir. 1995) section 5845, exempted antique arms and almost any other device which (citation omitted). However, although reviewing courts accord due “by reason of the date of its manufacture, value, design and other deference to a lower court’s application of the Sentencing Guidelines to characteristics is primarily a collector’s item and [is] not likely to be used the material facts, construction of the Guidelines is ultimately an issue of as a weapon.” Id. at * 6-7 (quoting 26 U.S.C. § 5845(a)). law subject to plenary review. 18 U.S.C. § 3742(e); United States v.
Sivils, 960 F.2d 587, 596 (6th Cir. 1992).
See also U.S.S.G. § 2K2.1(a) (1), (3), (4)(B), & (5) (creating 9 comparatively elevated base offense levels for persons convicted of “The Sentencing Commission’s Notes and Commentary to the crimes involving the receipt, possession, transportation, or other guidelines is authoritative and binding upon the courts unless such are prohibited transaction in firearms described in 26 U.S.C. § 5845(a), thus inconsistent with the Constitution, a federal statute, or the guidelines reflecting the Sentencing Commission’s judgment that prohibited themselves.” United States v. Landers, 39 F.3d 643, 646 n.7 (6th Cir. transactions in such weapons should be punished more harshly than 1994) (citing Stinson v. United States, 508 U.S. 36, 38 (1993)).
8 United States v. Dunlap, et al. Nos. 98-3855/3856 Nos. 98-3855/3856 United States v. Dunlap, et al. 9
that he possessed that weapon during a narcotics that an unloaded silencer-equipped .380 automatic pistol transgression; and, in any event, he purportedly had proved bartered by undercover agents to the defendant in exchange the “clear improbability” of any connection between that for cocaine base was possessed by the defendant in weapon and any drug crime which he had committed. He has connection with the defendant’s narcotics offense for section emphasized that, when he vended his sawed-off long gun to 2D1.1(b)(1) purposes), cert. denied, 118 S. Ct. 2310 (1998); the CI, he did not contemporaneously distribute any cocaine United States v. Castillo, 979 F.2d 8, 9-11 (1st Cir. 1992) base. (sustaining a two-point § 2D1.1(b)(1) weapons enhancement ignited by the defendant’s sale of a .22 caliber revolver, along However, as illustrated above, Thomas was a professional with cocaine base, to an incognito ATF agent); see generally dope peddler who pleaded guilty to conspiratorial possession United States v. Duncan, 918 F.2d 647, 650-52 (6th Cir. and distribution of cocaine base. During the firearm 1990). Accord, Fair v. United States, 157 F.3d 427, 430-31 transaction in controversy, he physically possessed two grams (6th Cir. 1998) 11(ruling, in an analogous context under 18 of crack, which he weighed in the presence of the CI for the U.S.C. § 924(c), that a person who personally transports a manifest purpose of (1) notifying the CI that those illegal firearm to a drug deal has carried that weapon “in relation to” stimulants were available for purchase, and/or (2) preparing the underlying narcotics transaction, irrespective of any other them for street distribution. Hence, no clear error infected the purpose he may have allegedly had for carrying that sentencing court’s rational inference, supported by a instrument) (citing, inter alia, Muscarello v. United States, preponderance of evidence, that Thomas possessed the 524 U.S. 125, 131-38 (1998)). truncated rifle while in felonious possession of “distribution” crack, thus satisfying the prosecution’s burden of proof.10 The conclusion that Thomas’ possession of the refashioned rifle was “connected” to a conspiratorial narcotics violation is Moreover, Thomas has failed to discharge his rebuttal bolstered by the trial court’s explicit finding that “its stock burden. His personal carriage of the altered rifle during his [had been] sawed from the end to make it handle as if it were active commission of a drug trafficking offense raises the almost a pistol.” The rifle’s alterations rendered it a typical inescapable inference that he possessed the gun in connection criminal instrumentality suitable for use as a cash-and-drugs with his concurrent narcotics infraction. See, e.g., United protection 12tool and/or a street dealer’s enforcement States v. Gibson, 135 F.3d 1124, 1128 (6th Cir.) (resolving implement. See U.S.S.G. § 2D1.1, comment. (n.3)
10 11 Count two of the indictment had charged Thomas with possession Section 924(c) postulates, in pertinent part:
of cocaine base with intent to distribute on or about December 14, 1996, the approximate date of the firearm transfer. As stated above, the district Whoever, during and in relation to any . . . drug trafficking court dismissed that count, and others, pursuant to a Rule 11 plea crime . . . for which he may be prosecuted in a court of the agreement, under which Thomas pled guilty to the conspiracy charge United States, uses or carries a firearm, shall, in addition to the (count one). However, criminal activities linked to the crime of punishment provided for such . . . drug trafficking crime, be conviction which are proved at sentencing by a preponderance of sentenced to imprisonment for five years[.] evidence should be punished as “relevant conduct,” even if such misconduct had been uncharged, or charged in a count of dismissal or 18 U.S.C. § 924(c)(1). (Emphasis added). acquittal. U.S.S.G. § 1B1.3(a)(1)(A); United States v. Lloyd, 10 F.3d 12 1197, 1221 (6th Cir. 1993); United States v. Kappes, 936 F.2d 227, 229 This appellate forum has recognized that Congress has specially (6th Cir. 1991); United States v. Duncan, 918 F.2d 647, 652 (6th Cir. categorized certain highly dangerous weapons, including sawed-off rifles, 1990). because of their manifest primary criminal purpose. United States v.