Opinion
No. 02-40108-01-SAC
May 23, 2003.
RULING ON OBJECTIONS TO PRESENTENCE REPORT
The defendant pleaded guilty to both counts of a two-count indictment that charged him with possession of a firearm by a user of controlled substances in violation of 18 U.S.C. § 922(g) and with possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The Presentence Report ("PSR") recommends a base offense level of 18, a two-level enhancement for possession of a firearm, and a three-level reduction for acceptance of responsibility. With a total offense level of 17 and a criminal history category of two, the PSR determines the applicable sentencing guideline range to be 27 to 33 months.
DEFENDANT'S OBJECTION NO. 1: The defendant objects that it is double counting for him to receive a firearm enhancement when the same firearms are the subject of count one for which he was convicted.
Ruling: As stated in the PSR, the two counts — the firearm offense and the drug trafficking offense — were grouped as involving substantially the same harm pursuant to U.S.S.G. § 3D1.2(b). The applicable offense level comes from that count with the highest offense level prior to grouping. U.S.S.G. § 3D1.3(a). The offense level for the drug trafficking count with the firearm enhancement was higher than the offense level for the firearm count. Thus, the PSR correctly applies the highest offense level as determined on the drug trafficking count. As for any double counting, the grouping under § 3D1.2 prevents this from occurring as explained in application note 5 to this guideline provision. A similar double counting objection has been rejected by other circuits in published decisions, see, e.g., United States v. Taylor, 248 F.3d 506, 516-17 (6th Cir.), cert. denied, 534 U.S. 981 (2001), United States v. Gibbs, 190 F.3d 188, 215-16 (3rd Cir. 1999), cert. denied, 528 U.S. 1131 (2000), and by the Tenth Circuit in an unpublished decision, United States v. Norred, 9 Fed. Appx. 916, 2001 WL 615293 (10th Cir. May 29, 2001).
The defendant attempts to distinguish these cases as involving firearm convictions based on the defendants' felon status as opposed to here where the defendant's status as a user of controlled substances is the basis of the firearm conviction. The defendant argues it is his status as a user of controlled substances, specifically his addiction to methamphetamine, that resulted in his commission of both offenses and that makes his offenses related. The defendant summarily concludes then it would be double counting for him to be sentenced on this § 922(g) conviction and to receive a firearm enhancement on the drug trafficking conviction. The defendant cites no case law supporting his specific objection.
"Impermissible double counting occurs when the same conduct of the defendant is used to support separate increases under different enhancement provisions which necessarily overlap, are indistinct, and serve identical purposes." United States v. Eaton, 260 F.3d 1232, 1238 (2001) (citation omitted). In other words, impermissible double counting occurs when the same conduct is used to support separate increases in a defendant's sentence. There is no double counting here, because the defendant's base offense level is based on the amount of drugs he possessed and the firearm enhancement is based on the weapons he possessed. The defendant's possession and/or use of controlled substances supports only the defendant's base offense level and nothing else. There is no impermissible double counting in this sentence.
DEFENDANT'S OBJECTION NO. 2: The defendant objects that the firearms are not connected to the drug trafficking count as to sustain an enhancement under U.S.S.G. § 2D1.1(b)(1). The defendant first asserted this objection in his sentencing memorandum and failed to make this objection before the PSR writer.
Ruling: The district 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 is allowed to entertain a new objection at any time before sentencing if the objector shows "good cause." Fed.R.Crim.P. 32(f)(1) and (i)(1)(D). Absent a showing of good cause, the district 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. 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 the objection as untimely subject to reconsideration at the sentencing hearing should the defendant offer such argument or proof.
Assuming the defendant's objection had been timely made, the court would have denied it for lack of persuasive proof. U.S.S.G. § 2D1.1(b)(1) provides for a two-level enhancement "[i]f a dangerous weapon (including a firearm) was possessed" in connection with certain drug offenses. This enhancement "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). The government has "the initial burden of proving possession [of the firearm] by a preponderance of the evidence" and a mere proximity between the firearm and the offense. United States v. Pompey, 264 F.3d 1176, 1180 (10th Cir. 2001), cert. denied, 534 U.S. 1117 (2002). This burden may be met by proving "a temporal and spatial" relationship existed between the gun and the drug trafficking offense, or simply it was possessed in "mere proximity to the offense." Id. (quotations and citations omitted). Once the government carries this burden, it becomes the defendant's burden to show that it is clearly improbable the weapon was connected with the offense. Id. That the defendant eventually tendered an innocent explanation at the time of the traffic stop for his possession of the firearms does not persuade the court that it is clearly improbable the firearms are connected to the methamphetamine he also possessed in the vehicle. From the suppression hearing, the court recalls that the defendant initially denied having any firearms in the vehicle. While the firearms may have been unloaded, there were clips readily accessible to the defendant. Consequently, even assuming a timely objection, the court would conclude that the defendant had not carried his burden of proving that the firearms were not connected to the methamphetamine.
IT IS THEREFORE ORDERED that this filing shall constitute the court's findings pursuant to Fed.R.Crim.P. 32(i)(3) on the unresolved objections to the PSR subject to reconsideration upon the defendant's request to offer additional arguments or proof in support of the matters decided above.