United States v. Holmes ( 2011 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-1448
UNITED STATES,
Appellee,
v.
WILLIAM HOLMES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
Robert C. Andrews on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Thomas E.
Delahanty II, United States Attorney, on brief for appellee.
July 7, 2011
Per Curiam. We have reviewed the record and the parties'
submissions, and we affirm.
The appellant, William Holmes ("Holmes"), raises a number
of challenges to his sentence. He first challenges the district
court's conclusion that he possessed a handgun during each of two
drug transactions with a confidential informant ("CI"). He argues
that the evidence presented by the government was unreliable. We
see no clear error. The discrepancies as to the date of the second
drug transaction and the caliber of the weapon seized from a drug
partner's apartment may permissibly be viewed as rather minor
discrepancies and were explained by the witnesses: the date
discrepancy was allegedly due to a typographical error and the
discrepancy with regard to the size of the weapon was explained by
the fact that a .22 caliber weapon and a .25 caliber are similar in
appearance. There is nothing in the record which would require
this court to question those explanations, and the district court
was in the best position to evaluate whether the witnesses who gave
those explanations were credible. The CI's alleged offer to leave
town in exchange for $12,000 adversely affected his credibility,
but the court did not rely solely on the CI's claim that Holmes had
a gun with him at each of the two drug transactions. Rather, the
CI's claim was corroborated by an agent's testimony that the CI was
wearing a wire during both transactions, that she was monitoring
the wire during both transactions, and that she heard Holmes refer
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on the first occasion to the fact that he was carrying a firearm.
The court also listened to the recordings of those controlled
transactions. The CI's claim that Holmes carried a different
firearm to each of the two transactions was corroborated by the
fact that the CI described the two weapons (a small caliber
derringer and a 9 mm or .45 caliber handgun with a brown wooden
handle), and that weapons matching those descriptions were later
seized from Holmes' co-conspirators. Thus, we see no clear error
in the court's conclusion that Holmes possessed the handguns.
We also see no error in the district court's conclusion
that Holmes constructively possessed a shotgun found under his co-
conspirator's bed. "Constructive possession exists when a person
knowingly has the power and intention at a given time to exercise
dominion and control over an object either directly or through
others." United States v. McLean, 409 F.3d 492, 501 (1st Cir.
2005) (internal quotation marks and citations omitted). Holmes
pled guilty to illegal possession of shotgun ammunition; that
ammunition was found in Holmes' bedroom; and the ammunition matched
the shotgun found in the other bedroom in his home. That second
bedroom was unlocked, and its occupant, one William Hopkins
("Hopkins"), was apparently Holmes' partner in a drug-dealing
business. One ounce of cocaine was found in Hopkins' closet along
with a handgun that may have been the same gun that Holmes carried
during one of the two controlled drug transactions. The district
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court reasonably could have concluded from this evidence that the
two drug partners -- Holmes and Hopkins -- appeared to share ready
access to the entire apartment and that the tools of their trade –
the drugs they sold and the weapons and ammunition used to protect
those drugs – were shared between them and scattered throughout the
apartment. A small caliber handgun that Holmes carried with him
during the other controlled drug transaction may have been the same
gun later found in an apartment occupied by another drug-dealing
partner, one Michael Pressey ("Pressey"); Holmes was seen routinely
entering this apartment throughout this investigation in order to
retrieve drugs. This is further indication that the three partners
(Holmes, Hopkins and Pressey) all shared access to the tools of
their trade, i.e., the drugs and the guns used to protect those
drugs. Given all of this, we see no clear error in the district
court's conclusion that Holmes knowingly had the power and the
intent to exercise control over the shotgun. Thus, we see no error
in the court's conclusion that Holmes had constructive possession
of the shotgun found under Hopkins' bed. See id. ("[T]here must be
some action, some word, or some conduct that links the individual
to the contraband and indicates that he had some stake in it, some
power over it.").
Finally, Holmes argues that even if he did possess the
two handguns and did constructively possess the shotgun, the
district court erred in imposing an enhancement under U.S.S.G. §
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2K2.1(b)(1)(A) for possession of three to seven firearms. He notes
that he was only convicted of illegal possession of ammunition, so
any possession by him of firearms should not have been treated as
relevant conduct. See U.S.S.G. § 1B1.3(a)(2). Holmes' possession
of firearms can be considered relevant conduct, and the enhancement
in U.S.S.G. § 2K2.1(b)(1)(A) may be applied, if 1) U.S.S.G. §
3D1.2(d) would require a sentencing court to group any possession
of firearms with his possession of ammunition, had Holmes been
charged additionally with possessing the three guns in question,
and 2) his possession of those three guns was part of the same
course of conduct or common scheme or plan as his possession of the
shotgun ammunition. See U.S.S.G. § 1B1.3(a)(2).
The first requirement is met here, as subsection 3D1.2(d)
would have required grouping of any gun possession charges with the
ammunition charge. See U.S.S.G. § 3D1.2(d) (offenses covered by
U.S.S.G. § 2K2.1 shall be grouped); U.S.S.G. § 2K2.1 (entitled
"Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition"). The only question, then, is whether Holmes'
possession of the three guns was part of the same course of conduct
or common scheme or plan as his possession of the shotgun
ammunition. "The 'same course of conduct' concept ... looks to
whether the defendant repeats the same type of criminal activity
over time. It does not require that acts be 'connected together'
by common participants or by an overall scheme." United States v.
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Sanders, 982 F.2d 4, 9 (1st Cir. 1992) (internal quotation marks
and citation omitted); see U.S.S.G. § 1B1.3, app. note 9.
We see no error in the sentencing court's conclusion that
Holmes' possession of the three guns in question and his possession
of ammunition were all part of the same course of conduct. Holmes'
constructive possession of the shotgun was part of the same course
of conduct as his possession of the matching ammunition for that
gun; after all, the latter generally is not used without the
former. Holmes argues that there is no evidence that he kept the
shotgun shells in aid of his drug business, but the relevant
question is whether his possession of that shotgun was related to
the crime for which he was convicted, i.e., his possession of the
shotgun ammunition. Clearly it was.
We also see no error in the district court's conclusion
that Holmes' possession of the two handguns also was part of the
same course of conduct, i.e., illegal possession of ammunition and
weapons (the shotgun) at his home, in violation of 18 U.S.C. §
922(g). The CI reported that he had seen both handguns in Holmes'
apartment; he saw the smaller handgun when he met Holmes at the
apartment shortly before the first drug transaction, and he saw the
larger handgun on two occasions (during the second drug transaction
at Holmes' home, and during some previous visit by the CI to the
apartment). Holmes possessed all three guns, as well as the
ammunition, within a very short time frame: only one month. It
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appears that Holmes' possession of ammunition and multiple weapons
was all part of a single scheme or plan to run a drug operation out
of his home (in partnership with Hopkins and Pressey) and to
support that operation through the possession of weapons and
ammunition. This is sufficient. Holmes contends that possession
of firearms can never be treated as relevant conduct to the offense
of possession of ammunition; but he cites no case law in support of
this suggestion, and the argument is contrary to the plain language
of U.S.S.G. §§ 1B1.3(a)(2) & 3D1.2(d). Finally, Holmes argues that
the court's decision to enhance his sentence on the basis of
uncharged conduct violated his Sixth Amendment rights. This
argument fails. See United States v. Zapata, 589 F.3d 475, 484
(1st Cir. 2009).
Affirmed. See 1st Cir. R. 27.0(c).
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