Opinion
No. 03-40112-01SAC
April 22, 2004
RULING ON OBJECTION TO PRESENTENCE REPORT
Arthur Williams, Jr. is the only defendant named in a three-count drug trafficking indictment. The defendant was arrested on October 14, 2003, taken into federal custody on October 21, 2003, and has been detained throughout the proceedings of this case. The defendant pleaded guilty in January to count one that charged him with distribution of cocaine base. As set out in the plea agreement, the government agreed, in relevant part, to recommend the maximum adjustment for acceptance of responsibility, to recommend 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 a base offense level of 26, a two-level firearm enhancement, and a three-level reduction for acceptance of responsibility. A total offense level of 25 and a criminal history category of three results in a guideline range of 70 to 87 months.
DEFENDANT'S OBJECTIONS IN PSR ADDENDUM ONLY
The PSR addendum contains six objections of which only two are addressed in the defendant's sentencing memorandum. Objections numbered one, two, four and five are found only in the PSR addendum. Rulings on those four objections would have no effect on the sentencing in this case. Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure provides that for any disputed or controverted portion of the PSR, the sentencing court must either rule on the dispute "or determine that a ruling is unnecessary because the matter will not affect sentencing, or because the court will not consider the matter in sentencing." The court hereby determines that a ruling on these four disputed portions of the PSR would not affect the sentence to be imposed in this case and that the court will not rely upon those matters in sentencing the defendant.
DEFENDANT'S OBJECTION NO. 2: The defendant objects to the two-level firearm enhancement arguing that the firearm found on the couch in the living room was not proximate to the drugs located in the kitchen and the bathroom. The defendant argues circumstances show it was clearly improbable the firearm was connected to the offense because the small amount of drugs in the house is inconsistent with drug trafficking, because the defendant had told officers the firearm was for his protection after a recent robbery at his house, and because the defendant had told an informant that he had no gun and denied knowledge of where to get one.
Ruling: Section 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). "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).
When officers executed a search warrant at the defendant's residence on October 14, 2003, officers found a 9mm pistol with a loaded magazine and a live round in the chamber in the living room. The pistol was on the couch behind a pillow. Also found in the living room was a set of digital scales. In the bathroom, officers observed a single piece of cocaine base on floor, and underneath the bathroom sink, they located a loaded 9mm magazine. In the kitchen, officers saw in plain view four individually wrapped rocks of cocaine base.
The uncontested facts appearing in the PSR establish that the defendant was selling crack cocaine from his residence. The defendant essentially admitted to officers that he possessed the 9mm pistol. The pistol was in the defendant's living room along with a set of digital scales, a common tool of the drug trafficking trade. Ammunition for a 9mm pistol was found in the bathroom where drugs were also located. The court finds that the uncontested facts in the PSR are sufficient to sustain the government's burden of showing not only the defendant's possession of the firearm but also the firearm's proximity to drug trafficking activity, drugs, and drug paraphernalia. These facts provide a sufficient basis for finding that the defendant possessed the gun and that a nexus exists between the possession of the gun and the drug trafficking activity for purposes of the enhancement.
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 his possession is connected with his offense which includes his relevant conduct as determined in the PSR. The defendant's bare denial of drug trafficking activity based on the smaller amount of drugs found in his residence on on October 14, 2003, is not particularly credible considering the controlled buys that took place in his residence just weeks before. As for alleging the gun was only for his protection, the defendant does not go so far as to allege his need for protection is unrelated to his drug trafficking activities. The defendant's allegations on their face appear insufficient to meet the burden of "clear improbability," but the court will reserve its final determination after hearing any evidence or arguments from the parties.
DEFENDANT'S OBJECTION NO. 6 AND MOTION FOR DOWNWARD DEPARTURE
Arguing for a downward departure based on repeated attacks to his person and property preceding the relevant conduct, the defendant objects to the PSR's failure to mention this possible ground for departure. The defendant argues these attacks qualify as mitigating circumstances not adequately considered by the Sentencing Commission in formulating the guidelines. More specifically, the defendant cites the policy statement on coercion and duress in arguing that the two physical attacks and accompanying threats in July of 2003 left him terrified and anxious to leave town. The defendant asserts he began selling small amounts of cocaine base in a desperate attempt to raise sufficient funds to leave.
Ruling: It is the defendant's burden to prove he is entitled to a downward departure. United States v. Archuleta, 128 F.3d 1446, 1449 (10th Cir. 1997). A district court may depart from the applicable guideline range if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b).
"If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may decrease the sentence below the applicable guideline range." U.S.S.G. § 5K2.12. Thus, to justify a departure, the alleged coercion must have caused the defendant to commit the criminal act. Duress or coercion is an encouraged factor for departure. United States v. Neal, 249 F.3d 1251, 1256 (10th Cir. 2001). The court would find it difficult to believe the defendant's allegations of coercion and duress being the ongoing cause of his drug trafficking activities almost two months after the physical attacks. As with the defendant's other objection, the court will reserve its final determination on this issue after hearing any evidence or arguments from the parties.
IT IS SO ORDERED.