RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Webb v. United States Nos. 01-5682/5683 ELECTRONIC CITATION: 2003 FED App. 0228P (6th Cir.) File Name: 03a0228p.06 Canale, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ UNITED STATES OF AMERICA , X RONALD LEE GILMAN, Circuit Judge. Bobby Webb Plaintiff-Appellee, - and his son, Preston Webb, pled guilty to both conspiring to - possess and with actually possessing Dilaudid tablets, each - Nos. 01-5682/5683 with the intent to distribute, in violation of 21 U.S.C. §§ 846 v. - > and 841(a)(1). On appeal, the Webbs argue that the district , court improperly (1) enhanced their offense levels for BOBBY WEBB (01-5682) and - possession of a firearm under United States Sentencing PRESTON WEBB (01-5683), - Guidelines § 2D1.1(b)(1); (2) denied them a reduction for Defendants-Appellants. N acceptance of responsibility under Sentencing Guidelines § 3E1.1; and (3) considered the full weight of the tablets in Appeal from the United States District Court computing their offense levels. In addition, Preston Webb for the Western District of Tennessee at Memphis. argues that the district court improperly enhanced his offense No. 00-20130—Jon Phipps McCalla, District Judge. level for being a manager of the conspiracy. For the reasons set forth below, we AFFIRM the judgments of the district Submitted: June 20, 2003 court. I. BACKGROUND Decided and Filed: July 11, 2003 A. Factual background Before: BOGGS and GILMAN, Circuit Judges; DOWD, Senior District Judge.* Bobby and Preston Webb conducted a fencing operation in Memphis, Tennessee by paying for stolen merchandise with _________________ Dilaudid pills, a synthetic heroin. Law enforcement officers began investigating the Webbs in February of 2000. On COUNSEL March 29, 2000, federal search and seizure warrants were ON BRIEF: James O. Marty, Brett B. Stein, FINLEY & served on the Webbs’ businesses and residences. At the STEIN, Memphis, Tennessee, for Appellants. Stuart J. business address where all of the undercover purchases of Dilaudid had been made, the officers recovered stolen merchandise, Dilaudid tablets, a Smith & Wesson .38-caliber revolver, and a disassembled 9mm submachine gun. * The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern District of Ohio, sitting by designation.
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The officers also interviewed Preston Webb at the time of facts were undisputed), this court has held that our standard the search. He admitted that he and his father, Bobby, had of review of a district court’s application of provisions of the been dealing in Dilaudid for approximately three months. Sentencing Guidelines to the facts should be treated Bobby Webb also spoke to the officers on the day of the deferentially and should not be disturbed unless clearly search. Later that spring, local law enforcement officers erroneous. United States v. Jackson-Randolph, 282 F.3d 369, received information that the Webbs were still dealing drugs. 389-90 (6th Cir. 2002) (holding that the Supreme Court’s On June 15, 2000, the Webbs were arrested and a second reasoning in Buford leads to the use of a deferential standard search took place at their business. More Dilaudid tablets of review in the application of the Sentencing Guidelines were seized at that time. under circumstances involving fact-bound determinations). B. Procedural background B. The district court did not err in enhancing the defendants’ offense levels for possession of a firearm A superseding indictment on October 24, 2000 charged the under Sentencing Guidelines § 2D1.1(b)(1) Webbs both with conspiring to possess and with actually possessing Dilaudid, each with the intent to distribute. On The Webbs argue that the district court erred in enhancing February 8, 2001, both defendants pled guilty to all counts. their sentences for possession of a firearm because the The Webbs’ sentencing hearing took place in May of 2001. government did not present evidence sufficient to establish Although they did not object to the facts as presented in the that they were aware of the presence of the .38-caliber Presentence Report, they filed four objections to the revolver in their store. In support of their contention, the recommendations contained therein that mirror the arguments Webbs point to the sentencing-hearing testimony of Joyce they make on appeal. The probation officer then filed an Webb, Bobby’s wife and Preston’s mother, to the effect that addendum to the Presentence Report, responding to the the gun belonged to her. Webbs’ objections. After conducting a sentencing hearing, the district court adopted the Presentence Report as amended Under Sentencing Guidelines § 2D1.1(b)(1), the offense and sentenced both Bobby and Preston Webb to 235 months level may be increased by two levels if a dangerous weapon of imprisonment. This timely appeal followed. was possessed during an offense involving drugs. The commentary provides that the enhancement “should be II. ANALYSIS applied if the weapon was present, unless it was clearly improbable that the weapon was connected with the offense.” A. Standard of review U.S. Sentencing Guidelines Manual § 2D1.1, cmt. n.3 (2000). To start with, the government must prove by a preponderance In reviewing a district court’s application of the Sentencing of the evidence that the defendant actually or constructively Guidelines, we “accept the findings of fact of the district court possessed the weapon and that such possession was during unless they are clearly erroneous and . . . give due deference the commission of an offense involving drugs. United States to the district court’s application of the guidelines to the v. Dunlap, 209 F.3d 472, 477 (6th Cir. 2000). The burden facts.” 18 U.S.C. § 3742(e). In light of Buford v. United then shifts to the defendant to prove that any connection States, 532 U.S. 59, 63-66 (2001) (holding that the district between the drug offense and the weapon is clearly court was entitled to deference in its application of § 4B1.2 of improbable. Id. the Sentencing Guidelines in a case where the underlying Nos. 01-5682/5683 Webb v. United States 5 6 Webb v. United States Nos. 01-5682/5683
At the sentencing hearing, the district court considered position to evaluate a defendant’s acceptance of Joyce Webb’s testimony in its entirety, but found it responsibility. For this reason, the determination of the unconvincing. She could not identify the type of gun found sentencing judge is entitled to great deference on review.” at the defendants’ place of business or even describe what the U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n.5 (2000). gun looked like. Although she claimed that she kept it for protection at her restaurant, the gun was found at the Consequently, the Webbs’ reliance on the older cases of defendants’ adjacent business location where all of the United States v. Jeter, 191 F.3d 637 (6th Cir. 1999) undercover drug transactions had occurred.
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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Webb v. United States Nos. 01-5682/5683 ELECTRONIC CITATION: 2003 FED App. 0228P (6th Cir.) File Name: 03a0228p.06 Canale, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ UNITED STATES OF AMERICA , X RONALD LEE GILMAN, Circuit Judge. Bobby Webb Plaintiff-Appellee, - and his son, Preston Webb, pled guilty to both conspiring to - possess and with actually possessing Dilaudid tablets, each - Nos. 01-5682/5683 with the intent to distribute, in violation of 21 U.S.C. §§ 846 v. - > and 841(a)(1). On appeal, the Webbs argue that the district , court improperly (1) enhanced their offense levels for BOBBY WEBB (01-5682) and - possession of a firearm under United States Sentencing PRESTON WEBB (01-5683), - Guidelines § 2D1.1(b)(1); (2) denied them a reduction for Defendants-Appellants. N acceptance of responsibility under Sentencing Guidelines § 3E1.1; and (3) considered the full weight of the tablets in Appeal from the United States District Court computing their offense levels. In addition, Preston Webb for the Western District of Tennessee at Memphis. argues that the district court improperly enhanced his offense No. 00-20130—Jon Phipps McCalla, District Judge. level for being a manager of the conspiracy. For the reasons set forth below, we AFFIRM the judgments of the district Submitted: June 20, 2003 court. I. BACKGROUND Decided and Filed: July 11, 2003 A. Factual background Before: BOGGS and GILMAN, Circuit Judges; DOWD, Senior District Judge.* Bobby and Preston Webb conducted a fencing operation in Memphis, Tennessee by paying for stolen merchandise with _________________ Dilaudid pills, a synthetic heroin. Law enforcement officers began investigating the Webbs in February of 2000. On COUNSEL March 29, 2000, federal search and seizure warrants were ON BRIEF: James O. Marty, Brett B. Stein, FINLEY & served on the Webbs’ businesses and residences. At the STEIN, Memphis, Tennessee, for Appellants. Stuart J. business address where all of the undercover purchases of Dilaudid had been made, the officers recovered stolen merchandise, Dilaudid tablets, a Smith & Wesson .38-caliber revolver, and a disassembled 9mm submachine gun. * The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern District of Ohio, sitting by designation.
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The officers also interviewed Preston Webb at the time of facts were undisputed), this court has held that our standard the search. He admitted that he and his father, Bobby, had of review of a district court’s application of provisions of the been dealing in Dilaudid for approximately three months. Sentencing Guidelines to the facts should be treated Bobby Webb also spoke to the officers on the day of the deferentially and should not be disturbed unless clearly search. Later that spring, local law enforcement officers erroneous. United States v. Jackson-Randolph, 282 F.3d 369, received information that the Webbs were still dealing drugs. 389-90 (6th Cir. 2002) (holding that the Supreme Court’s On June 15, 2000, the Webbs were arrested and a second reasoning in Buford leads to the use of a deferential standard search took place at their business. More Dilaudid tablets of review in the application of the Sentencing Guidelines were seized at that time. under circumstances involving fact-bound determinations). B. Procedural background B. The district court did not err in enhancing the defendants’ offense levels for possession of a firearm A superseding indictment on October 24, 2000 charged the under Sentencing Guidelines § 2D1.1(b)(1) Webbs both with conspiring to possess and with actually possessing Dilaudid, each with the intent to distribute. On The Webbs argue that the district court erred in enhancing February 8, 2001, both defendants pled guilty to all counts. their sentences for possession of a firearm because the The Webbs’ sentencing hearing took place in May of 2001. government did not present evidence sufficient to establish Although they did not object to the facts as presented in the that they were aware of the presence of the .38-caliber Presentence Report, they filed four objections to the revolver in their store. In support of their contention, the recommendations contained therein that mirror the arguments Webbs point to the sentencing-hearing testimony of Joyce they make on appeal. The probation officer then filed an Webb, Bobby’s wife and Preston’s mother, to the effect that addendum to the Presentence Report, responding to the the gun belonged to her. Webbs’ objections. After conducting a sentencing hearing, the district court adopted the Presentence Report as amended Under Sentencing Guidelines § 2D1.1(b)(1), the offense and sentenced both Bobby and Preston Webb to 235 months level may be increased by two levels if a dangerous weapon of imprisonment. This timely appeal followed. was possessed during an offense involving drugs. The commentary provides that the enhancement “should be II. ANALYSIS applied if the weapon was present, unless it was clearly improbable that the weapon was connected with the offense.” A. Standard of review U.S. Sentencing Guidelines Manual § 2D1.1, cmt. n.3 (2000). To start with, the government must prove by a preponderance In reviewing a district court’s application of the Sentencing of the evidence that the defendant actually or constructively Guidelines, we “accept the findings of fact of the district court possessed the weapon and that such possession was during unless they are clearly erroneous and . . . give due deference the commission of an offense involving drugs. United States to the district court’s application of the guidelines to the v. Dunlap, 209 F.3d 472, 477 (6th Cir. 2000). The burden facts.” 18 U.S.C. § 3742(e). In light of Buford v. United then shifts to the defendant to prove that any connection States, 532 U.S. 59, 63-66 (2001) (holding that the district between the drug offense and the weapon is clearly court was entitled to deference in its application of § 4B1.2 of improbable. Id. the Sentencing Guidelines in a case where the underlying Nos. 01-5682/5683 Webb v. United States 5 6 Webb v. United States Nos. 01-5682/5683
At the sentencing hearing, the district court considered position to evaluate a defendant’s acceptance of Joyce Webb’s testimony in its entirety, but found it responsibility. For this reason, the determination of the unconvincing. She could not identify the type of gun found sentencing judge is entitled to great deference on review.” at the defendants’ place of business or even describe what the U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n.5 (2000). gun looked like. Although she claimed that she kept it for protection at her restaurant, the gun was found at the Consequently, the Webbs’ reliance on the older cases of defendants’ adjacent business location where all of the United States v. Jeter, 191 F.3d 637 (6th Cir. 1999) undercover drug transactions had occurred. Further, there (reviewing de novo an application of the acceptance of was ample evidence provided by the investigating officers of responsibility adjustment to uncontested facts), and United where the gun was located in relation to the Webbs’ drug States v. Tilford, 224 F.3d 865 (6th Cir. 2000) (same), and the dealing. The district court found that the government had met government’s reliance on United States v. Childers, 86 F.3d its burden and that the Webbs had not demonstrated that the 562 (6th Cir. 1996) (same), are both misplaced. The newer gun’s connection with the offense was clearly improbable. deferential standard adopted by Buford and its progeny is now Because they rely on essentially the same arguments and controlling. evidence on appeal, the Webbs have not demonstrated that the district court’s application of the enhancement was clearly In response to the defendants’ objection regarding the erroneous. proposed denial of a reduction for acceptance of responsibility, the probation officer filed an addendum to the C. The district court did not err in denying the Presentence Report. Both Bobby and Preston were defendants a reduction for acceptance of interviewed by the probation officer regarding their responsibility under Sentencing Guidelines § 3E1.1 acceptance of responsibility. Bobby expressed remorse, but also disagreed with the factual accuracy of his conduct as As discussed in Part II.A. above, the Supreme Court in related in the Presentence Report. The probation officer Buford applied a deferential standard of review to a district found that Bobby’s statements were inconsistent with his court’s application of Sentencing Guidelines § 4B1.2 to the guilty plea and his failure to earlier object to the facts as undisputed facts. Buford, 532 U.S. at 64-65. The Court noted presented in the Presentence Report. See U.S. Sentencing “the fact-bound nature of the legal decision, the Guidelines Manual § 3E1.1, cmt. n.1(a) (2000) (“[A] comparatively greater expertise of the District Court, and the defendant who falsely denies, or frivolously contests, relevant limited value of uniform court of appeals precedent . . . .” Id. conduct that the court determines to be true has acted in a at 66. Following the reasoning of Buford and of this court in manner inconsistent with acceptance of responsibility.”). Jackson-Randoph, 282 F.3d at 388-90, an unreported decision has applied the deferential standard of review to § 3E1.1. The denial of Preston’s request for an acceptance-of- United States v. Miller, No. 01-5581, 2002 WL 1894647, *5 responsibility reduction is a closer case. Although Preston (6th Cir. Aug. 15, 2002) (holding that the district court’s expressed greater remorse than Bobby and did not engage in denial of a reduction for acceptance of responsibility is “a drug trafficking subsequent to his guilty plea, the probation factual question, and should be accorded great deference and officer nevertheless recommended that the reduction be should not be disturbed unless clearly erroneous.”). Section denied based upon Preston’s admission of continuing illegal 3E1.1's commentary further supports the use of a deferential conduct after the initial search warrants were executed in standard of review: “The sentencing judge is in a unique March of 2000. The probation officer concluded that Nos. 01-5682/5683 Webb v. United States 7 8 Webb v. United States Nos. 01-5682/5683
Preston’s ongoing criminal activity up to the time of his arrest E. The district court did not err in enhancing Preston in June was inconsistent with the acceptance of responsibility. Webb’s offense level as a manager of the conspiracy Using the appropriate standard of review, we conclude that the district court did not err in determining that Preston’s Finally, Preston Webb argues that the district court erred in conduct was inconsistent with the acceptance of giving him a two-level enhancement as a manager of the responsibility. conspiracy under Sentencing Guidelines § 3B1.1(c). The district court, however, was provided with ample evidence at As § 3E1.1 of the Sentencing Guidelines provides, the the sentencing hearing to find that Preston held managerial district court is to make an acceptance-of-responsibility and supervisory roles essentially equal to those of his father. determination based upon the facts presented. The entry of a U.S. Sentencing Guidelines Manual § 3B1.1, cmt. n.4, states guilty plea does not obligate the court to find that a reduction that “there can . . . be more than one person who qualifies as is appropriate. Id., cmt. n.3. In this case, the district court a leader or organizer of a criminal association or conspiracy.” adopted the Presentence Report as it had been supplemented In addition, the undisputed facts in the record show that in response to the defendants’ objections. Based upon the Preston ran the organization together with his father and that evidence in the record, the district court’s finding was not five or more people were involved in the conspiracy. The clearly erroneous. district court thus did not err in finding that Preston should receive a two-level enhancement for his managerial role in the D. The district court did not err in calculating the weight conspiracy. of the Dilaudid tablets for purposes of determining the defendants’ base offense levels III. CONCLUSION Although the Webbs argue that the conversion table in For all of the reasons set forth above, we AFFIRM the Sentencing Guidelines § 2D1.1 is unfair and in violation of judgments of the district court. the Fourteenth Amendment, they fail to provide any support for their argument. In any event, the district court properly considered the weight of the Dilaudid tablets in determining the Webbs’ base offense level. The Sentencing Guidelines provide that “[u]nless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.” Id., § 2D1.1(c)(A). This court held in United States v. Landers, 39 F.3d 643, 646 (6th Cir. 1994), that the entire weight of Dilaudid tablets should be used in calculating the base offense level. We thus find no error by the district court in determining the Webbs’ base offense level under Sentencing Guidelines § 2D1.1.