United States v. Severin ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
October 11, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-30332
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON PAUL SEVERIN,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Louisiana
(04-CR-81)
Before JOLLY, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jason Paul Severin challenges his sentence of 90 months
imprisonment for his participation in a multi-defendant conspiracy
to distribute ecstasy, and his concurrent sentence of 48 months for
using a telephone in commission of a drug offense. We vacate in
part and affirm in part.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Severin pleaded guilty to two counts of a multi-count, multi-
defendant indictment: (count one) conspiring to possess with the
intent to distribute MDMA1, MDA, and marijuana, and (count seven)
using a communications facility in furtherance of a drug
trafficking offense. Severin also signed a lengthy factual basis.
The probation officer prepared a pre-sentence report (PSR)
assigning Severin a base offense level of 28 based on the finding
that his offense involved 500 tablets of MDMA and MDA — the
equivalent of 625 kilograms of marijuana. The PSR recommended
increasing Severin’s offense level two levels based on his
possession of a firearm during the commission of the offense, and
decreasing it three levels for his acceptance of responsibility,
resulting in a total offense level of 27. Combined with his
criminal history category of III, that offense level produced a
recommended sentencing guidelines range of 87 to 108 months of
imprisonment as to count one, and a 48-month term as to count
seven.
II. STANDARD OF REVIEW
We do not afford deference to the district court in the review
of mathematical error in a sentencing guideline calculation. Koon
v. United States, 518 U.S. 81, 98 (1996). Therefore, we would
1
“MDMA” refers to 3, 4 methylenedioxymethylamphetamine HCl.
“MDA” refers to 3, 4 methylenedioxyamphetamine HCl. The drugs are
more commonly known as ecstasy.
2
ordinarily review Severin’s first claim of guideline application
error de novo. United States v. Villegas, 404 F.3d 355, 359 (5th
Cir. 2005). Because Severin failed to object to the guideline
application in the district court, however, we review his claim for
plain error only. United States v. Rodriguez, 15 F.3d 408, 414–15
(5th Cir. 1994).
Severin’s other claims concern factual findings during
sentencing. We normally review a court’s factual findings during
sentencing for clear error, unless the defendant fails to object,
in which case the standard of review is plain error. See United
States v. Salado, 339 F.3d 285, 294 (5th Cir. 2003)(citing United
States v. Cabral-Castillo, 35 F.3d 182, 189 (5th Cir. 1994);
Rodriguez, 15 F.3d at 414–15; see also United States v. Castillo,
430 F.3d 230, 242 (5th Cir. 2005) (stating that if party fails to
timely raise issue in district court, we generally “will review it
for plain error unless the party made its position clear to the
district court and to have objected would have been futile”).
Severin contends that he objected to the firearm enhancement
during sentencing when he personally testified that he used the
rifle only for squirrel hunting, thereby making the district court
aware of the issue. However, an imprecise objection such as
Severin’s, which offered no legal basis as to why the clarification
was relevant, is insufficient to preserve the claimed error for
review. See United States v. Krout, 66 F.3d 1420, 1434 (5th Cir.
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1995). Rule 51 of the Federal Rules of Criminal Procedure requires
a party opposing district court action to preserve a claim of error
by informing the court of “the party’s objection to the court’s
action and the grounds for that objection.” Fed. R. Crim. P.
51(b). Severin’s statements to the court merely sought to clarify
what sort of gun the rifle was.
Similarly, Severin did not object to the district court’s
criminal history calculation. The district court acknowledged that
Severin’s probation was not being revoked because the state
probation officer believed that his participation in the conspiracy
occurred prior to the commencement of his state probation. It does
not follow, however, that the court was therefore on notice of any
objection by Severin to the enhancement. Severin objected to
neither the weapon enhancement nor the criminal history
calculation, and there is no indication that an objection would
have been futile. We therefore review both issues for plain error.
Under plain error review, Severin must show (1) that an error
occurred, (2) that the error was plain, which means “clear” or
“obvious,” and (3) that the error affected his substantial rights.
United States v. Cotton, 535 U.S. 625, 631–32 (2002). “If all
three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if . . . the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 631 (internal quotations and
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citations omitted).
III. DISCUSSION
A. The Drug Quantity Calculation
Severin admitted in the factual basis that his offense
involved 500 pills of MDA and MDMA, which according to the drug
equivalency table is the equivalent of 62.5 kilograms of marijuana,
and produces a base offense level of 22. The PSR erroneously
indicated, however, that Severin’s 500 pills were the equivalent of
625 kilograms of marijuana, resulting in a base level of 28. After
considering the other sentencing adjustments, the sentencing range
for Severin should have been 46 to 57 months of imprisonment as to
count one, and 46 to 48 months imprisonment as to count seven. See
U.S.S.G. Ch. 5, Pt. A., Sentencing Table. Instead, because of the
calculation error, Severin’s sentencing range was 87–108 months as
to count one, and 48 months as to count seven. He was sentenced,
within that range, to 90 months and 48 months respectively.
The government concedes that Severin’s sentence should be
remanded to correct the mathematical error. Indeed, the error
occurred, was obvious, and affected both Severin’s substantial
rights as well as the fairness of the judicial proceedings. We
therefore exercise our discretion and vacate and remand as to the
calculation error.
B. The Firearm Enhancement
The sentencing guidelines provide that a defendant’s sentence
5
should be increased by two levels whenever, in a crime involving
the manufacture, import, export, trafficking, or possession of
drugs, the defendant possessed a dangerous weapon. See §
2D1.1(b)(1); United States v. Gaytan, 74 F.3d 545, 559 (5th Cir.
1996). In order to apply this enhancement, “[t]he government has
the burden of proof . . . of showing by a preponderance of the
evidence ‘that a temporal and spatial relation existed between the
weapon, the drug trafficking activity, and the defendant.’” United
States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001)(quoting United
States v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998)). “Under this
standard, the government must show that ‘the weapon was found in
the same location where drugs or drug paraphernalia are stored or
where part of the transaction occurred.’” Id. (quoting United
States v. Eastland, 989 F.2d 760, 770 (5th Cir. 1993)). A
defendant’s simple possession of a firearm at a point in time
during which a conspiracy is in progress is not sufficient to apply
the enhancement. Id. at 246.
The PSR adopted by the district court indicated that federal
agents seized a total of five firearms from three individuals,
including the seizure of a .22 caliber rifle from Severin. The
district court properly adopted the facts contained in the PSR
without further review, given that there was an adequate
evidentiary basis and the defendant failed to present rebuttal
evidence. See id. at 239. Nevertheless, the facts in the PSR do
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not establish that Severin possessed a firearm within the
contemplation of § 2D1.1(b)(1).
Severin’s attorney acknowledged during the sentencing hearing
that the rifle was found in Severin’s home, but nothing in the PSR,
factual basis, indictment, or hearing testimony suggested that
drugs were stored in the home or that drug transactions took place
there. Rather than establishing the requisite temporal and spatial
relation between Severin’s rifle and the drug activity, the
district court relied on Severin’s admission that the rifle was
“available” to him during the conspiracy had he needed it.
Availability, however, does not constitute both temporal and
spatial relation. A gun may be “available” because of temporal
proximity, even in the absence of spatial proximity, but temporal
proximity alone is not sufficient for the application of §
2D1.1(b)(1). See Cooper, 274 F.3d at 246 (reversing for lack of
spatial proximity). While additional facts might exist that would
establish temporal and spatial relation, those facts were not made
available to the district court. Rather, given Severin’s claims
that the rifle was for hunting squirrels, the established facts of
this case are more similar to the guidelines’ example of firearm
possession that would not support an enhancement: “an unloaded
hunting rifle in the closet.” U.S.S.G. § 2D1.1 n.3.
The government argues that even if no temporal or spatial
relation existed between Severin’s rifle and the drug conspiracy,
Severin can be held accountable for the firearms that were seized
7
from his co-conspirators. The government is correct that “one co-
conspirator may ordinarily be assessed a § 2D1.1(b)(1) increase in
view of another co-conspirator’s possession of a firearm during the
drug conspiracy so long as use of the weapon was reasonably
foreseeable.” United States v. Mergerson, 4 F.3d 337, 350 (5th
Cir. 1993) (citation omitted). The district court did not apply
the enhancement on the basis of the co-conspirators, however, and
thus made no findings as to foreseeability. Furthermore, without
additional evidence, an enhancement based on the co-conspirators’
firearm possession succumbs to the same lack of temporal and
spatial relation as the enhancement based on Severin’s rifle. The
record does not indicate where the co-conspirators’ weapons were
found and does not establish that they were found in the same
location where drugs or drug paraphernalia was stored, or where
part of the transaction occurred.
For the foregoing reasons, Severin satisfies the first two
elements of plain error review — error occurred, and it was obvious
under this Court’s precedent. As a result of the two-level
enhancement, the district court sentenced Severin to a 90-month
term of imprisonment, exceeding the 70-87 month guideline range for
Severin’s sentence in the absence of the enhancement. By virtue of
that sentencing disparity, the error affected Severin’s substantial
rights and also affected the fairness, integrity, or public
reputation of the judicial proceedings. The district court plainly
erred. However, inasmuch as no objection was made, upon
8
resentencing, the district court may consider any additional
evidence adduced by the parties bearing on the firearm issue. We
therefore vacate and remand as to the firearm enhancement.
C. The Criminal History Enhancement
Section 4A1.1(d) of the sentencing guidelines provides that
the district court shall add two points to a defendant’s criminal
history score “if the defendant committed the instant offense while
under any criminal justice sentence, including probation . . . .”
We have previously held that the § 4A1.1(d) enhancement “is
appropriate where a continuing offense begins before the offense
for which the defendant is under a criminal justice sentence
because a continuing offense, by its very nature, does not
terminate until the date of the indictment or the voluntary
termination of the illegal activity.” United States v. Santana-
Castellano, 74 F.3d 593, 598 (5th Cir. 1996) (internal quotation
marks and citations omitted). Conspiracy is a continuing offense.
See, e.g., United States v. Bermea, 30 F.3d 1539, 1577 (5th Cir.
1994).
Severin pleaded guilty to charges that he conspired to possess
with intent to distribute MDA and MDMA from prior to January 2003
until the indictment was issued on August 6, 2004. Furthermore,
there is no evidence suggesting that Severin withdrew from the
conspiracy at any time before the indictment was issued. Severin’s
state probation began on March 11, 2004, and he thus committed the
conspiracy offense while on probation. The district court did not
9
err by adding two criminal history points under § 4A1.1(d), and we
affirm.
IV. CONCLUSION
For the foregoing reasons, we VACATE Severin’s sentence as to
the drug quantity calculation and firearm enhancement, AFFIRM as to
the criminal history enhancement, and REMAND for resentencing.
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