Opinion
No. 03-40109-01-SAC
March 11, 2004
RULING ON OBJECTIONS TO PRESENTENCE REPORT
The defendant is one of two defendants named in a single count drug trafficking indictment. The defendant has been detained since November 20, 2003, when she was arrested for alleged violations of her pretrial release. Upon finding three positive drug tests and one failure to report for drug testing, the magistrate judge revoked the defendant's bond and remanded her to custody. The defendant in December of last year pleaded guilty to possession with the intent to distribute 5 grams or more of cocaine base. As set out in the plea agreement, the government agreed to recommend the maximum adjustment for acceptance of responsibility, to recommend the defendant receive a sentence at the low end of the applicable guideline range, and to not request an upward departure if the defendant agrees not to pursue a downward departure. The Presentence Report ("PSR") recommends abase offense level of 28, a two-level firearm enhancement, and a three-level reduction for acceptance of responsibility. A total offense level of 27 and a criminal history category of five results in a guideline range of 120 to 150 months. The defendant is subject to a mandatory minimum of 60 months.
DEFENDANT'S OBJECTION NO. 1: The defendant objects to the firearm enhancement arguing that the firearm found in her purse on October 4, 2001, lacks any proximity to drug trafficking activity and that the co-defendant Carter's possession of a firearm on May 20, 2003, is irrelevant to any arguable firearm enhancement.
Just a week before this sentencing, the defendant filed a sentencing memorandum that addresses this objection and advances another objection. In this memorandum, the defendant broadens his aim at this firearm enhancement by now advancing several new underlying objections. First, the defendant now objects to the CI's statement summarized in ¶ 11 that the CI on a prior occasion had seen in the defendant's residence a handgun which was accessible to the defendant. The defendant argues the CI's statement is not sustained by sufficient indicia of reliability. Second, the defendant now objects that her alleged possession of firearm on October 4, 2001, is not relevant conduct of the offense of conviction committed on June 28, 2000. The defendant argues the events are separated by fifteen months and do not share any connections as to justify a relevant conduct finding.
Ruling: A sentencing court is not required to hear an objection to the PSR if the objection is not raised within fourteen days of counsel's receipt of the report. The court may allow a party to advance a new objection at any time before sentencing if "good cause" shown. Fed.R.Crim.P. 32(f)(1) and (i)(1)(D). Absent a showing of good cause, the sentencing court may proceed as if no objection had been made and rely upon the PSR without making additional independent findings of fact. United States v. Overholt, 307 F.3d 1231, 1251-52 (10th Cir. 2002).
The defendant makes no effort in his sentencing memorandum to show good cause for advancing these new objections to the CI's statement in ¶ 11 or to the events on October 4, 2001, being relevant conduct. There is nothing of record to show diligence and a good faith reason for the delay in presenting this objection or to show that this objection raises substantial factual or legal issues going to the basic fairness or validity of the PSR's findings and determinations. Thus, the court denies these new objections as untimely subject to reconsideration should the defendant offer such argument or proof.
Assuming the defendant had timely advanced these new objections, the court still would have granted the firearm enhancement. First, the court finds more than sufficient evidence to sustain the enhancement without considering the informant's statement about a weapon. Second, the undisputed facts appearing in the PSR also establish that the defendant's sales of crack cocaine from her residence in the fall of 2001 are "part of the same of course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2). These subsequent deals involved conduct listed in subsections 1B1.3(a)(1)(A) and (B), as the defendant admitted to selling crack cocaine just as she had in the offense of conviction. These later deals plainly would have been grouped under the Guidelines. Finally, these later sales show the defendant has engaged in an identifiable behavior pattern of selling small user amounts of crack cocaine. The court infers from the undisputed facts appearing in the PSR that the defendant regularly distributed small amounts of crack cocaine either from her residence in central Topeka or near it. The co-defendant Rickey Carter was sometimes directly involved in these transactions or was seen at her residence or with the defendant during the transactions. On one occasion, the defendant admitted to officers that she had sold crack cocaine on previous occasions and on another occasion she admitted to having sold crack cocaine regularly for approximately one year. The court is satisfied that the elements of similarity and regularity are factors strongly represented here. As for temporal proximity, the courts have said events may still be relevant conduct even if separated by an apparent gap of years. United States v. Roederer, 11 F.3d 973, 979 (10th Cir. 1993).
Turning to the defendant's timely objection to the firearm enhancement, § 2D1.1(b)(1) provides: "If a dangerous weapon was possessed (including a firearm), increase by 2 levels." The application notes explain that "[t]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1, cmt. n. 3. The term, "offense," is defined under the guidelines as the "conviction and all relevant conduct under § 1B1.3 (Relevant Conduct)." U.S.S.G. § 1B1.1 note 1(H). Thus, in determining whether to apply a sentence enhancement, the district court must consider all relevant conduct. See United States v. Washington, 11 F.3d 1510, 1516 (10th Cir. 1993) (citing U.S.S.G. § 1B1.3), cert. denied, 511 U.S. 1020 (1994).
The government bears the initial burden of proving possession by a preponderance of the evidence. United States v. Smith, 131 F.3d 1392, 1400 (10th Cir. 1997), cert. denied, 522 U.S. 1141 (1998). This burden may be satisfied by showing that there is a temporal and spatial relationship between the weapon, the drug trafficking activity, and the defendant. United States v. Pompey, 264 F.3d 1176, 1180 (10th Cir. 2001), cert. denied, 534 U.S. 1117 (2002). The necessary nexus between the weapon, drug trafficking and defendant may be established by showing that "the weapon was located nearby the general location where drugs or drug paraphernalia are stored or where part of the transaction occurred." United States v. Flores, 149 F.3d 1272, 1280 (10th Cir. 1998) (internal quotation omitted), cert. denied, 525 U.S. 1092 (1999). In addition, the sentencing court may "attribute to a defendant weapons possessed by his codefendants if the possession of weapons was known to the defendant or reasonably foreseeable by him." United States v. McFarlane, 933 F.2d 898, 899 (10th Cir. 1991). "Once the government establishes that the gun was possessed in proximity to the drugs or transaction, the burden shifts to the defendant to show it is clearly improbable that the weapon was related to the offense." Flores, 149 F.3d at 1280 (internal quotation omitted).
As stated above, the defendant's only timely objection to the relevant conduct events occurring on October of 2001 is that the undisputed facts appearing in the PSR fail to establish proximity to any drug transaction. The court disagrees. What the defendant told the officers that day is more than sufficient to establish this nexus. She told officers that she possessed a handgun in her purse and that the gun belonged to a man named "Bear" who had just gone to get more crack cocaine. The defendant admitted she had sold cocaine just two days earlier, and officers found drug packaging paraphernalia and other drug-related items at the residence. Officers also found in the defendant's purse over $200 in cash and miscellaneous ammunition, including 36 rounds of .25 caliber, one 9 mm round, and one .357 caliber round. The defendant's statements establish her possession of the firearm and its nexus to the drug trafficking activity. The gun was found readily accessible to the defendant in her residence where she admitted to having sold drugs just two days earlier. The man who owned the gun was connected to the drug trafficking activity, as he had left to get more crack cocaine. The gun was in the defendant's purse next to a sizable sum of cash which likely represented proceeds from drug sales. For that matter, the presence of other ammunition in the defendant's purse shows the defendant was not unfamiliar with firearms or with her need to have them readily accessible. Thus, the court concludes that the defendant knowingly possessed the handgun in her purse and that the handgun was related to her ongoing drug trafficking activity. Because the government has established possession and proximity, the burden shifts to the defendant to show that it is clearly improbable that the firearm in her possession is connected with her offense which includes her relevant conduct. The court will hear from the defendant in that regard.
DEFENDANT'S OBJECTION NO. 2: The defendant objects for the first time in her sentencing memorandum to the relevant conduct used in the PSR's drug quantity determination.
Ruling: This objection is untimely. Absent a showing of good cause for the defendant's untimeliness, the sentencing court will proceed as if no objection had been made and rely upon the PSR's quantity determination. The defendant's sentencing memorandum does not include any showing of diligence or good faith reason for the delay in presenting this objection or to show that this objection raises substantial factual or legal issues going to the basic fairness or validity of the PSR's findings and determinations. The court denies this new objections as untimely subject to reconsideration should the defendant offer such argument or proof.
Had the defendant timely objected to the relevant conduct determination, the court's ruling would not have changed the base offense level from that determined in the PSR. Using the same relevant conduct analysis discussed in footnote one, the court would have held the defendant accountable for more than 20 grams of cocaine base.
IT IS THEREFORE ORDERED that through the uncontested facts appearing in the PSR the government has carried its burden of proving by a preponderance of evidence the defendant's possession of a firearm for purposes of U.S.S.G. § 2D1.1(b)(1), and the burden now shifts to the defendant to show that it is clearly improbable that the firearm was related to the offense in support of the defendant's first objection to the PSR.
IT IS FURTHER ORDERED that the defendant's second objection to the PSR is denied as untimely.