United States v. Charles Willis , 284 F. App'x 687 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 01, 2008
No. 08-10337 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00026-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES WILLIS,
a.k.a. Monte,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(July 1, 2008)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Appellant Charles Willis appeals his 192-month sentence after pleading
guilty in the Southern District of Georgia to one count of conspiracy to possess
with intent to distribute and to distribute cocaine and cocaine base, in violation of
21 U.S.C. §§ 846, 841(a)(1), and 18 U.S.C. § 2. After Willis was arrested in
connection with this offense in Savannah, Georgia, law enforcement discovered a
firearm in his home in Atlanta, Georgia, along with evidence of drug trafficking
activity.
On appeal, Willis first argues that the district court’s sentence was
unconstitutional under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160
L. Ed. 2d 621 (2005), because the court imposed a firearm enhancement under
U.S.S.G. § 2D1.1(b)(1) based on facts not submitted to a jury for proof beyond a
reasonable doubt. Second, Willis argues that the court erred by enhancing his
sentence under § 2D1.1(b)(1) because law enforcement did not discover the
firearm at the site of the charged conduct, and he did not use the firearm during any
drug transactions.
After reviewing the record and reading the parties’ briefs, we discern no
reversible error.
I. Booker Error
Because Willis did not raise a constitutional objection to his sentence based
upon the principles set out in Booker, we review his arguments for plain error. See
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United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). “An appellate
court may not correct an error the defendant failed to raise in the district court
unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights.”
Id. (quotation omitted). “If all three conditions are met, an appellate court may
then exercise its discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation omitted). Constitutional error under Booker exists
“when the district court misapplies the Guidelines by considering them as binding
as opposed to advisory.” United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir.
2005).
We conclude from the record that Willis’s Booker argument is without merit
because the district court understood that the Guidelines were advisory and applied
them in an advisory fashion.
II. Firearm Enhancement under U.S.S.G. § 2D1.1(b)(1)
“We review the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1)
for clear error, and the application of the Sentencing Guidelines to those facts de
novo.” United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006) (quotation
omitted). Section § 2D1.1(b)(1) provides for a two-level enhancement “[i]f a
dangerous weapon (including a firearm) was possessed . . . .” U.S.S.G.
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§ 2D1.1(b)(1). The commentary provides that the enhancement “should be applied
if the weapon was present, unless it is clearly improbable that the weapon was
connected with the offense.” Id., comment. (n.3). Interpreting this Guideline and
its commentary, we have stated that:
To justify a firearms enhancement, the government must either
establish by a preponderance of the evidence that the firearm was
present at the site of the charged conduct or prove that the defendant
possessed a firearm during conduct associated with the offense of
conviction. If the government is successful in meeting this initial
burden, then the evidentiary burden shifts to the defendant, who must
demonstrate that a connection between the weapon and the offense
was “clearly improbable.”
United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006) (citation omitted),
cert. denied, 127 S. Ct. 2446 (2007).
We have held that the enhancement is applicable when the firearm is
discovered during conduct related to the charged offense, even if it is not present at
the site of the charged conduct. United States v. Smith, 127 F.3d 1388, 1390 (11th
Cir. 1997). We have also held that there is no requirement that the defendant use
the firearm to facilitate the commission of the offense. United States v. Audain,
254 F.3d 1286, 1289 (11th Cir. 2001). Thus, we have upheld the enhancement
where the firearm is discovered with evidence of drug trafficking activity at one
location, even though the defendant is arrested or charged with a drug offense at a
different location. See United States v. Hunter, 172 F.3d 1307, 1308-09 (11th Cir.
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1999) (upholding the enhancement where the police, two days after arresting
Hunter in his car for drug offenses, discovered hundreds of plastic baggies, glass
vials, mixing spoons, diluting agents, transaction records, and 5 firearms in his
home, which was almost 100 miles away from the location of his arrest).
We conclude from the record that the district court did not err by applying
the enhancement under § 2D1.1(b)(1) because law enforcement found the firearm
at issue in Willis’s home along with substantial evidence of drug trafficking
activity. Contrary to Willis’s arguments, it is irrelevant under our caselaw that law
enforcement did not discover the firearm in the same jurisdiction as the charged
conduct and that he did not use the firearm to facilitate any drug transactions.
Accordingly, we affirm his sentence.
AFFIRMED.
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