United States v. Abraham David Saftchick , 335 F. App'x 870 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16558 ELEVENTH CIRCUIT
JUNE 30, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-00039-CR-3-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABRAHAM DAVID SAFTCHICK,
a.k.a. Dave,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 30, 2009)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Abraham David Saftchick appeals his 97-month sentence, imposed
following his guilty plea on one count of conspiracy to distribute and possess with
intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B)(vii) and 846. We find no error and affirm the sentence.
BACKGROUND
In the factual basis for his guilty plea, Saftchick agreed that he participated
in a conspiracy “to acquire distribution quantities of marijuana and provide the
marijuana to others” between January 2005 and May 2007 with codefendants
Christopher Hutchins and Howard Fisher. Saftchick also agreed that he and his
codefendants delivered over 100 kilograms of marijuana to Justin Mikhael1 in
Destin, Florida, and that the marijuana “would then be stored at Mikhael’s
residence until Mikhael would, in turn, distribute the marijuana to others.”
According to the presentence investigation report (the “PSI”), Mikhael
operated a large drug-trafficking network, and Saftchick was a primary source of
marijuana for Mikhael. Saftchick transported high-quality marijuana from Florida
to New York, where it was ultimately sold. Mikhael received 10 to 20 pounds of
marijuana from Saftchick and his codefendants on at least 20 occasions, and he
1
The parties spell this name differently. We use the spelling used in the presentence
investigation report.
2
paid an average of $3,500 per pound. Saftchick’s codefendants also delivered
marijuana to Mikhael on multiple occasions. A review of telephone records by
law enforcement revealed a “significant amount of telephone activity” between
Saftchick, Mikhael, and Fisher. Additionally, a quantity of marijuana and
numerous firearms were seized from Mikhael’s residence on April 5, 2007, and
Saftchick was observed visiting that residence after that date, on April 9, 2007. In
January 2008, Saftchick, Hutchins, and Saftchick’s mother were arrested in
California after police found 21 pounds of marijuana in their motel room. In May
2008, officers found a handgun at Saftchick’s residence, numerous firearms at
Hutchins’s residence, and records at Hutchins’s residence reflecting that 348
pounds of marijuana were distributed to persons other than Mikhael during the
course of the conspiracy. In the same month, law enforcement found numerous
firearms at Mikhael’s residence.
In calculating the sentencing guidelines range, the probation officer applied
a base offense level of 26 because the offense involved between 100 and 400
kilograms of marijuana, U.S.S.G. § 2D1.1(c)(7). The officer applied a two-level
enhancement because a dangerous weapon was possessed, U.S.S.G. § 2D1.1(b)(1),
finding that Saftchick was accountable for firearms possessed by Mikhael during
the conspiracy. The officer also applied a four-level enhancement because
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Saftchick was an organizer or leader of criminal activity involving five or more
participants or was otherwise extensive, U.S.S.G. § 3B1.1(a), and a three-level
reduction for acceptance of responsibility, U.S.S.G. § 3E1.1(a) and (b). With a
total offense level of 29 and a criminal history category of II, the guidelines range
was 97 to 121 months’ imprisonment. The offense carried a statutory minimum of
5 years’ imprisonment and a maximum of 40 years, 21 U.S.C. § 841(b)(1)(B).
Saftchick’s appeal relates to two objections he made to the PSI. First,
Saftchick objected to the four-level § 3B1.1(a) enhancement, arguing that
although he held a leadership position in the conspiracy, he supervised less than
five people in the conspiracy and therefore should receive only a two-level
enhancement under § 3B1.1(c), rather than the four-level § 3B1.1(a) enhancement.
Second, Saftchick objected to the two-level § 2D1.1(b)(1) enhancement, asserting
that Mikhael was merely a buyer, not a co-conspirator, that Saftchick was unaware
that Mikhael possessed firearms, and that Saftchick, therefore, should not be held
responsible for the firearms Mikhael possessed.
At the sentencing hearing, the government presented Agent Michael Bettis
in support of the § 3B1.1(a) enhancement, who testified that Saftchick regularly
provided distribution quantities of marijuana to Mikhael, who then distributed the
drugs to “numerous” other individuals. Also, Saftchick acted in concert with
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Hutchins and Fisher, along with several “mules,” or transporters of the drugs,
including Maria Saftchick. The ledger found in Hutchins’s home “clearly
depict[ed] marijuana going out by group members . . . as well as monies going to
sources of supply for payments of large marijuana loads.” Moreover, the
marijuana was regularly “fronted” to Mikhael in “an ongoing operation.” The
district court found that the enhancement applied because the criminal activity
involved five or more participants, including Mikhael. The court also found that
even if there were fewer than five participants, the enhancement applied because
the conspiracy was “otherwise extensive,” as it ran from January 2005 through
May 2007, Saftchick transported marijuana between Florida and New York, the
marijuana was of high quality, and a significant amount of money was involved.
The court also overruled Saftchick’ s objection to the § 2D1.1(b)(1)
enhancement based on Mikhael’s possession of firearms. Per agent Bettis’s
previous testimony during a codefendant’s sentencing hearing,2 firearms were
found in Mikhael’s home on April 5, 2007, and Mikhael stated that he needed
them for protection after he was robbed during a drug transaction. The court
found that the §2D1.1(b)(1) enhancement applied because Mikhael was a
2
Saftchick and the government stipulated that the court could rely upon Agent Bettis’s
prior testimony.
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co-conspirator, even though not charged as such, he possessed the firearms in
furtherance of and in close temporal proximity to the conspiracy, and it was
reasonably foreseeable that firearms would be possessed in light of the nature of
the operation.
The court sentenced Saftchick to 97 months’ imprisonment, and Saftchick
timely appealed.
STANDARD OF REVIEW
We review a district court’s interpretation and application of the Sentencing
Guidelines de novo. United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir.
2007). “A district court’s determination as to a defendant’s role in the offense is a
finding of fact subject to a clearly erroneous standard of review.” United States v.
Yates, 990 F.2d 1179, 1182 (11th Cir. 1993). The factual determination that a co-
conspirator possessed firearms in furtherance of the conspiracy is also reviewed
under the clearly erroneous standard. United States v. Nino, 967 F.2d 1508, 1514-
15 (11th Cir. 1992).
DISCUSSION
Section 3B1.1(a) Enhancement for a Leadership Role
Saftchick argues that the court erroneously applied the § 3B1.1(a)
enhancement because, although he had a leadership role in the conspiracy, it did
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not involve five or more participants and was not otherwise extensive. Thus,
Saftchick claims he should only have received a two-level enhancement under
§ 3B1.1(c). Saftchick asserts that Mikhael was just a buyer and not a participant
in the conspiracy. Saftchick, relying on Yates, 990 F.2d 1179, also asserts that the
district court erred in finding that the operation was otherwise extensive. We
disagree and affirm the enhancement of Saftchick’s sentences under § 3B1.1(c).
The guidelines provide for a four-level enhancement “[i]f the defendant was
an organizer or leader of a criminal activity that involved five or more participants
or was otherwise extensive.” U.S.S.G. § 3E1.1(a). The application notes instruct
that “[a] ‘participant’ is a person who is criminally responsible for the commission
of the offense, but need not have been convicted.” Id., comment. (n.1). “[I]n
deciding whether individuals were participants in the criminal activity, the court
must consider, in addition to the criminal act itself, the individuals’ involvement in
the events surrounding the criminal act.” United States v. Holland, 22 F.3d 1040,
1046 (11th Cir. 1994).
The application notes further instruct that “[i]n assessing whether an
organization is ‘otherwise extensive,’ all persons involved during the course of the
entire offense are to be considered.” U.S.S.G. § 3B1.1, comment. (n.3).
“Although this circuit does not employ a precise definition for the ‘otherwise
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extensive’ standard, there are a number of factors relevant to the extensiveness
determination, including the length and scope of the criminal activity as well as
the number of persons involved.” Holland, 22 F.3d at 1046.
Here, the district court committed no error in finding that Saftchick held a
leadership position in an organization involving five or more participants nor in
finding that his organization was “otherwise extensive.” Between January 2005
and May 2007, Saftchick and his codefendants regularly delivered over 100
kilograms of marijuana to Mikhael, who in turn operated a large drug-trafficking
network. Officers discovered a “significant amount of telephone activity” between
Saftchick, Fisher, and Mikhael. Moreover, the marijuana was regularly “fronted”
to Mikhael, i.e.,Mikhael would pay Saftchick and his codefendants after receiving
money from Mikhael’s “numerous” buyers. The court did not err in interpreting
this evidence to mean that Mikhael was a participant in Saftchick’s organization.
See United States v. Matthews, 168 F.3d 1234, 1249-50 (11th Cir. 1999) (holding
that fronting drugs to another individual is sufficient to make that individual a part
of the defendant’s criminal organization and to warrant use of a similar leadership
enhancement under § 3B1.1(b)). Additionally, Saftchick did not need to have
control over every co-conspirator for § 3B1.1(a) to apply, so long as he held a
leadership role and the organization involved five or more people. See id.
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In addition, the district court properly found that the organization was
“otherwise extensive.” Saftchick transported high-quality marijuana from Florida
to New York. Mikhael paid Saftchick and his codefendants approximately $3,500
per pound of marijuana. Several “mules” were employed as drug couriers, and a
ledger found in Hutchins’s home indicated that Saftchick and his codefendants
distributed 348 pounds of marijuana to persons other than Mikhael. Further,
Saftchick and his co-defendants were arrested with, collectively, over 60 pounds
of marijuana in their possession. These facts demonstrate Saftchick’s criminal
activity was otherwise extensive. See United States v. Rodriguez, 981 F.2d 1199,
1200 (11th Cir.1993) (finding that the defendant was involved in “otherwise
extensive” criminal activity when he “was organizing a drug transaction that
extended from Columbia to Florida to Boston to New York, and which included
the purchase and street distribution of 100 kilos of cocaine worth $350,000 in the
wholesale market”).
As a final matter, Yates is distinguishable. In Yates, this court reversed the
district court’s application of a § 3B1.1(a) enhancement to someone whom the
government had not proved held a leadership role in the organization, but was
instead simply a supplier to an extensive operation. 990 F.2d at 1181-82. The
district court applied§ 3B1.1(a) based solely upon the extensive nature of the
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distribution ring. Id. at 1180-81. This court vacated and remanded because the
government had presented no evidence that the defendant “was an organizer or
leader” and the evidence indicated at most “a continuing seller/buyer relationship”
between the defendant and the head of the drug ring. Id. Here, on the other hand,
Saftchick acknowledged that he occupied a leadership role in the conspiracy, the
evidence clearly reflected more than a mere buyer/seller relationship existed with
Mikhael, and Saftchick was not merely held accountable for selling drugs to the
leader of an otherwise extensive trafficking operation. Accordingly, we affirm the
application of the § 3B1.1(a) enhancement.
Section 2D1.1(b)(1) Enhancement for Possession of a Firearm
Saftchick also argues that the district court erroneously applied the
§ 2D1.1(b)(1) enhancement based on Mikhael’s possession of firearms, because
Mikhael was not charged as a co-conspirator nor unavailable for indictment.
Moreover, Saftchick contends that Mikhael’s possession of firearms was not
reasonably foreseeable because they were hidden in his bedroom, and there was no
connection between the firearms and Saftchick. In addition, Saftchick argues that
he never admitted the facts in support of this enhancement, and that the
application of the enhancement therefore violated the Sixth Amendment under
United States v. Booker, 543 U.S. 220 (2005). Finally, Saftchick argues that
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Mikhael’s possession of firearms was not in furtherance of the conspiracy, as he
was merely a buyer.
In the case of a drug-trafficking offense, the guidelines provide for a two-
level enhancement “[i]f a dangerous weapon (including a firearm) was possessed.”
U.S.S.G. § 2D1.1(b)(1). “[T]he [§ 2D1.1(b)(1)] enhancement is to be applied
whenever a firearm is possessed during conduct relevant to the offense of
conviction.” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997). For
this enhancement to apply to a defendant based on a co-conspirator’s possession
of a firearm, the government must show that: “(1) the possessor of the firearm was
a co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the
defendant was a member of the conspiracy at the time of possession, and (4) the
co-conspirator possession was reasonably foreseeable by the defendant.” United
States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999). “Once the government
shows that a firearm is present at the site of the charged conduct, the evidentiary
burden shifts to the defendant to show that a connection between the firearm and
the offense is clearly improbable.” United States v. Westry, 524 F.3d 1198, 1221
(11th Cir. 2008) (quotations omitted), cert. denied, Carter v. United States, 129
S. Ct. 251 (2008), and Hinton v. United States, 129 S. Ct. 902 (2009).
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This court has indicated that the §2D1.1(b)(1) enhancement may apply to a
defendant, based on a co-conspirator’s possession of a firearm, only when the
possessor is charged as a co-conspirator. See United States v. Otero, 890 F.2d
366, 367 (11th Cir. 1989). This court, however, later explained that Otero should
not be read strictly and that the general import of Otero is to avoid sentence
enhancements for firearms possession by persons outside a conspiracy. See
United States v. Nino, 967 F.2d 1508, 1514-15 (11th Cir. 1992) (applying the
enhancement even though the weapons were possessed by co-conspirators who are
not charged because one died before the conspiracy ended and the other
cooperated with the government in exchange for immunity). The Otero rationale
“is satisfied if the possessor of the firearm is a co-conspirator of the defendant
whose sentence is enhanced,” so long as the co-conspirator’s firearms possession
is in furtherance of the conspiracy and reasonably foreseeable. United States v.
Luiz, 102 F.3d 466, 469 (11th Cir. 1996); see U.S.S.G. § 1B1.3. Accordingly,
Mikhael’s firearms possession could be attributed to Saftchick as a co-conspirator,
regardless of whether Mikhael was indicted in this case.
Thus, the district court did not err in enhancing Saftchick’s offense level
based on Mikhael’s possession of firearms. As discussed earlier, the facts support
the finding that Mikhael was a co-conspirator and not a mere buyer. Also,
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Mikhael possessed numerous firearms at his residence – from where Saftchick and
his codefendants regularly distributed large quantities of marijuana – and Mikhael
stated that he purchased them for protection after being robbed in a drug deal. The
fact that firearms were found at the home of a co-conspirator who stored and
distributed drugs as a part of their conspiracy supports the finding that Mikhael
possessed firearms in furtherance of the conspiracy and that Mikhael’s doing so
was reasonably foreseeable by Saftchick. See United States v. Fields, 408 F.3d
1356, 1359 (11th Cir. 2005) (holding that firearms were possessed in furtherance
of a drug conspiracy and reasonably foreseeable when found at the location from
which the defendant’s co-conspirators distributed drugs); see also United States v.
Pham, 463 F.3d 1239, 1246 (11th Cir. 2006) (recognizing that, in light of the
“frequent and overpowering connection between the use of firearms and narcotics
traffic,” it is “reasonably foreseeable that a co-conspirator would possess a firearm
where the conspiracy involved trafficking in lucrative and illegal drugs.”).
Additionally, Saftchick was a member of the conspiracy when Mikhael
possessed the firearms. The charged conspiracy ran from January 2005 until May
2007, the firearms were found in Mikhael’s residence on April 5, 2007,
Saftchick’s codefendants engaged in narcotics-trafficking activities at Mikhael’s
residence through March 2007, and Saftchick was observed visiting Mikhael’s
13
residence on April 9, 2007. Finally, Saftchick has not shown that a connection
between the firearms and the conspiracy was clearly improbable, and the record
does not support such a conclusion, in light of the location of the firearms and
Mikhael’s stated purpose for possessing them. See Fields, 408 F.3d at 1359. As a
result, the district court did not err in applying the § 2D1.1(b)(1) enhancement.
As a final matter, Saftchick argues that the district court violated his Sixth
Amendment rights, as explained in Booker, 543 U.S. 220, by imposing an
enhancement for Mikhael’s possession of the firearms even though the facts
supporting that enhancement – that Mikhael possessed firearms – were neither
found by a jury nor part of Saftchick’s plea. Saftchick asserts that he was unaware
that Mikhael possessed any weapons. “Booker holds that ‘the Sixth Amendment
right to trial by jury is violated where under a mandatory guidelines system a
sentence is increased because of an enhancement based on facts found by the
judge that were neither admitted by the defendant nor found by the jury.’” United
States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006) (quoting United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)). “After Booker, district courts
may still impose fact-based sentencing enhancements under an advisory guidelines
system without violating the Sixth Amendment.” Id. Here, nothing in the record
suggests that the district court applied the guidelines in a mandatory fashion.
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Accordingly, we affirm the offense level enhancement for possession of a firearm
of a conspirator under § 2D1.1(b)(1).
CONCLUSION
For the foregoing reasons, we AFFIRM Saftchick’s sentence.
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