Opinion
No. 02-40145-02-SAC
December 17, 2003
RULING ON OBJECTIONS TO PRESENTENCE REPORT
The jury found the defendant guilty of conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846 and guilty of the distribution of cocaine base within 1,000 feet of a school in violation of 21 U.S.C. § 841(a)(1) and 860. As to the conspiracy count, the jury found that the government had proved the defendant conspired to distribute 5 grams or more of cocaine base but not 50 grams or more of cocaine base. The Presentence Report ("PSR") recommends a total offense level of 28, a criminal history category of three, resulting in a guideline range of 120 to 137 months. The addendum to the PSR shows the government is the only party with objections, and it has two.
Government's Objection No. 1: The government objects that the defendant should be held accountable for the nearly 40 grams of cocaine base for which her co-conspirator, Patrick Sharkey, was held accountable. The government argues that the defendant's relevant conduct should not be limited to those transactions occurring at the Union Street address. By letter to the probation office, the defendant indicates she agrees with the amount of drugs used as relevant conduct in the PSR.
Ruling: Under U.S.S.G. § 1B1.3, the offense level for a jointly undertaken criminal activity is determined on the basis of "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." Under § 2D1.1, "[t]he Government has the burden of proving the quantity of drugs by a preponderance of the evidence." United States v. Gigley, 213 F.3d 509, 518 (10th Cir. 2000), and the "evidence relied upon must possess a minimum indicia of reliability." United States v. Cruz Camacho, 137 F.3d 1220, 1225 (10th Cir. 1998).
Based on the reliable evidence admitted at trial, the court finds that the actual transactions totaling 5.18 grams of cocaine base and involving the confidential informant at the Union Street address are jointly undertaken activity reasonably foreseeable to the defendant Dunmire. All of these transactions took place at the same location over a four-day period of time in July of 2002. As for Sharkey's other transactions, there was no evidence at trial establishing that the defendant Dunmire knew about or participated in this criminal activity. Nor is the court persuaded that it should infer such activity was reasonably foreseeable to Dunmire based on what evidence was presented at trial about her relationship with the defendant Sharkey. These other transactions occurred at different locations unrelated to Dunmire's stay at the Union Street address and at points in time that were months before or after the only transaction in which there is evidence of her direct involvement. The court finds that the government has not carried its burden of proving relevant conduct in excess of 5.18 grams of cocaine base. The government's objection is overruled.
Government's Objection No. 2: The government contends the PSR is in error in not applying a firearm enhancement based on a traffic stop occurring in May of 2002, in Crawford County, Arkansas, where weapons and drugs were found in the trunk of a vehicle in which the defendant Sharkey was a passenger. The defendant opposes this enhancement arguing the evidence does not support its application here.
Ruling: An enhancement for weapon possession "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, comment., (n. 3) (1997). The government has the initial burden of proving possession by a preponderance of the evidence. It may do so by showing "mere proximity to the offense." See United States v. Smith, 131 F.3d 1392, 1400 (10th Cir. 1997), cert. denied, 522 U.S. 1141 (1998). The sentencing court may attribute to a defendant weapons possessed by a co-defendant if that possession was known to the defendant or was reasonably foreseeable by her. United States v. McFarlane, 933 F.2d 898, 899 (10th Cir. 1991). Because guns are considered tools of the drug trade, a joint venturer in a drug trafficking operation should reasonably foresee that co-participants heavily involved in the trafficking activities will possess firearms. See United States v. Dickerson, 195 F.3d 1183, 1188 (10th Cir. 1999) (citing in part United States v. Banks, 987 F.2d 463, 468 (7th Cir. 1993)).
The court finds that the government has not carried its burden of proving possession by a preponderance of evidence. The evidence admitted at trial does not persuade the court to find that the defendant had actual knowledge of Sharkey's possession of a firearm or that Sharkey's possession of a firearm was reasonably foreseeable to the defendant considering what little evidence was presented at trial about the relationship between the defendant Dunmire and Sharkey. The government's objection is overruled.
IT IS THEREFORE ORDERED that government's objections to the PSR are overruled.