United States v. Sincleair ( 2021 )

Case: 20-10495 Document: 00516072752 Page: 1 Date Filed: 10/28/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-10495 October 28, 2021
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Phillip Matthew Sincleair,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-354-2
Before Davis, Haynes, and Oldham, Circuit Judges.
W. Eugene Davis, Circuit Judge:
Phillip Sincleair appeals the application of a two-point firearm
sentencing enhancement to his offense level under U.S.S.G. § 2D1.1(b)(1)
for possession of a dangerous weapon. Because it is not clear whether the
district court determined that Sincleair personally possessed the firearm or
that one of Sincleair’s “unindicted co-conspirators” possessed it during the
commission of an offense, we VACATE the sentence and REMAND for
resentencing.
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I. BACKGROUND
Phillip Sincleair pleaded guilty, without a plea agreement, to
conspiring to possess a controlled substance with intent to distribute. As part
of his plea proceedings, Sincleair signed a factual resume stipulating that, in
2017, he conspired with Jade Kuhn and Craig Wilbur to possess
methamphetamine with intent to distribute it. A drug trafficking
investigation of Kuhn, Wilbur, Cameron Primm, and Estevan Graciano
revealed that Kuhn and Primm 1 supplied methamphetamine to Sincleair,
who then distributed it to others.
On May 18, 2017, Cooke County Sherriff’s Office (CCSO) police
officers executed a search warrant at a residence owned by Chase Wood. At
the residence, the officers found Sincleair, Wood, Mark Ilczyszyn, and
Mahalia Markezinis, whom the presentence report (PSR) refers to as
“unindicted co[-]conspirators,” and Amanda Blackman (Sincleair’s
girlfriend), sitting on a couch smoking methamphetamine. The officers
discovered less than two ounces (51.4 grams) of methamphetamine in
Wood’s residence, although it is unclear where in the home they found the
drugs. They also found a firearm on a table near the couch but did not
determine who owned it.
According to the PSR, the CCSO’s investigation revealed that
“Sincleair was the methamphetamine [source of supply] for Ilczyszyn, who
was the [source of supply] for Wood.” The PSR also stated that Sincleair,
1
None of these individuals were with Sincleair when he was arrested and the
weapon at issue was present.
2
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Ilczyszyn, and Blackman met at Wood’s residence on May 18, 2017 “so
Ilczyszyn could distribute one ounce of methamphetamine to Wood.” 2
On December 9, 2019, Sincleair was charged by information for one
count of conspiracy to possess with intent to distribute a controlled
substance, in violation of 21 U.S.C. § 846 (21 U.S.C. §§ 841(a)(1) and
(b)(1)(C)), to which he pleaded guilty. 3 The probation office prepared a PSR,
which held Sincleair accountable for conspiring with Kuhn and Wilbur to
possess with intent to distribute 26,166.3 kilograms of methamphetamine and
gamma hydroxybutyric acid (GHB) between September 2016 and June 2017.
Sincleair was not held accountable for the 51.4 grams of methamphetamine
seized on May 18, 2017 from Wood’s residence, where the weapon at issue
was present, because it could have been “double counting the
methamphetamine he received from Kuhn.” The PSR calculated Sincleair’s
total offense level at 35, which included a two-level firearm possession
enhancement under U.S.S.G. § 2D1.1(b)(1). The PSR explained that the
firearm enhancement was applied because the May 18, 2017 search occurred
in a residence where a drug transaction was in progress, Sincleair was
present, and a firearm was also present. Based on Sincleair’s total offense
level of 35 and Category V criminal history, his advisory guidelines
imprisonment range would typically be 262 to 327 months; however, the
2
Sincleair, Ilczyszyn, Wood, and Blackman were arrested and charged with the
state offense of Engaging in Organized Criminal Activity-Manufacture/Delivery of a
Controlled Substance. After pleading guilty, Sincleair was sentenced to 25 years of
imprisonment for the state offense on April 29, 2019. Although mentioned in the PSR, this
state conviction was not used to calculate Sincleair’s criminal history. It was also not used
in the PSR or the PSR addendum to support application of the § 2D1.1(b)(1) enhancement.
3
Neither the information charging Sincleair nor the factual resume that Sincleair
signed referred to the incident giving rise to the enhancement at issue in this case.
3
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statutory maximum sentence was 240 months, which is what the PSR listed
as the guideline term of imprisonment.
Sincleair filed written objections to the PSR, including an objection to
the § 2D1.1(b)(1) firearm enhancement. He argued that the enhancement
should be removed because his presence at Wood’s house on May 18, 2017
was not related to the drug conspiracy to which he pleaded guilty because he
and Blackman were at Wood’s home to engage in drug use and not drug
trafficking, the firearm was later confirmed to be owned by and registered to
Wood, and it was “not foreseeable that a firearm would be needed in a social
setting amongst two couples 4 involved in recreational drug use.” The
Government notably did not respond to Sincleair’s firearm-enhancement
objection in its response to Sincleair’s objections to the PSR. Meanwhile, the
probation officer issued a PSR addendum that, in part, responded to
Sincleair’s objection to the § 2D1.1(b)(1) enhancement. The addendum
explained that the enhancement was appropriate because Sincleair was
Ilczyszyn’s source of supply and was present for the May 18, 2017 drug
transaction between Ilczyszyn and Wood, so Sincleair was “accountable for
the methamphetamine Ilczyszyn distributed.” The addendum reasoned that
“possessing firearms during the distribution of methamphetamine is
reasonably foreseeable, and thus, is relevant conduct for [Sincleair].”
During the sentencing hearing on May 19, 2020, the district court
sustained some of Sincleair’s objections but overruled his objection to the
§ 2D1.1(b)(1) enhancement. The district court did not make specific fact
findings, but instead, mostly adopted the probation officer’s findings in the
PSR, “subject to and including changes and qualifications made” in the PSR
4
The PSR stated that Blackman was Sincleair’s girlfriend, and Sincleair asserted
that Markezinis was Ilczyszyn’s girlfriend.
4
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addendum. The district court calculated a new offense level of 33 based on
the sustained objections, resulting in a guidelines imprisonment range of 210
to 262 months of imprisonment. 5 The district court sentenced Sincleair to
210 months of imprisonment, with 15 months deducted for the time he had
already spent incarcerated. Sincleair timely filed a notice of appeal.
II. LEGAL STANDARD
This Court reviews the district court’s “interpretation or application
of the Sentencing Guidelines de novo and its factual findings for clear
error.” 6 Although both parties apply the clear error standard here, “[i]t is
well-established that our court, not the parties, determines the appropriate
standard of review.” 7 In United States v. Zapata-Lara, we made clear that we
review de novo the issue of whether the facts found are legally sufficient to
support application of the two-level firearm enhancement under
§ 2D1.1(b)(1). 8 Because, as described below and like Zapata-Lara, “we
cannot be sure what rationale the court had in mind to support the
[§ 2D1.1(b)(1)] enhancement” in this case, our review is de novo. 9
5
Without the two-point firearm enhancement, Sincleair’s guidelines range would
be 168 to 210 months of imprisonment.
6
United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007).
7
United States v. Suchowolski, 838 F.3d 530, 532 (5th Cir. 2016).
8
615 F.3d 388, 390 (5th Cir. 2010).
9
See id. at 391. Cf. United States v. King, 773 F.3d 48, 52 (5th Cir. 2014) (“But
[Zapata-Lara] involved a peculiar situation where the district court did not make any
finding at all about whether the defendant personally possessed the firearm or a
coconspirator foreseeably possessed it . . . . In contrast, here, it is completely clear that the
district court applied the enhancement based on King’s personal possession of the firearm,
rather than a coconspirator’s possession of it.”).
5
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III. DISCUSSION
Section 2D1.1(b)(1) of the Sentencing Guidelines provides for a two-
level sentence enhancement “[i]f a dangerous weapon (including a firearm)
was possessed.” “The Government must prove, by a preponderance of the
evidence, that the defendant possessed the weapon.” 10 The Government can
prove possession in one of two ways for this enhancement to apply. First, it
can “prove that the defendant personally possessed the weapon by showing
that a temporal and spatial relation existed between the weapon, the drug
trafficking activity, and the defendant.” 11 Otherwise, the Government can
prove possession if a co-conspirator 12 “involved in the commission of an
offense possessed the weapon” and “the defendant could have reasonably
foreseen that possession.” 13 This method obviously presupposes proof of a
conspiracy between the defendant and the person possessing the weapon.
It is not clear whether the district court determined that Sincleair
personally possessed the firearm or that one of Sincleair’s “unindicted co-
conspirators” possessed it during the commission of an offense. The PSR
addendum presents both of these options as possibilities, and the district
court did not explain which form of possession it attributed to Sincleair. In
such a situation, our circuit precedent supports vacating the sentence and
remand for the district court to make the appropriate findings.
10
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
11
Id. at 764–65 (citation omitted).
12
See United States v. Hooten, 942 F.2d 878, 882 (5th Cir. 1991) (explaining that
this method of proving possession “derives from U.S.S.G. § 1B1.3(a)(1) [relating to
Relevant Conduct], which renders a defendant accountable for any foreseeable act by a
codefendant taken ‘in furtherance of the execution of [a] jointly undertaken criminal
activity’”) (citation omitted).
13
Cisneros-Gutierrez, 517 F.3d at 765 (citation omitted).
6
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In United States v. Zapata-Lara, the district court determined that the
firearm enhancement was applicable because a handgun was present at the
location where the defendant, Zapata-Lara, had brokered a drug deal and was
present during the transaction. 14 However, as this Court emphasized, the
district court did not explain whether it was applying the enhancement based
on Zapata-Lara’s personal possession of the handgun or a co-conspirator’s
possession of the handgun that was reasonably foreseeable to Zapata-Lara. 15
This Court explained that the district court never connected the handgun to
a particular co-conspirator, and it is a prerequisite that a co-conspirator
knowingly possess the weapon before the court could find that the possession
was foreseeable to the defendant. 16 Because there was nothing in the record
to link the weapon to any of Zapata-Lara’s co-conspirators, this Court
concluded that Zapata-Lara could not be held derivatively responsible for it. 17
Moreover, this Court explained that there was nothing in the record
to support the firearm enhancement based on Zapata-Lara’s personal
possession of the weapon because the “PSR [did] not contain sufficient facts
establishing a temporal and spatial relationship of the gun, the drug
trafficking activity, and Zapata–Lara.” 18 Although the spatial and temporal
connection between the handgun and the offense were tenuous at best, the
Zapata-Lara court decided that it did not need to determine whether the
defendant personally possessed the weapon because it could not “be sure
what rationale the [district] court had in mind to support the enhancement,
14
615 F.3d 388, 389 (5th Cir. 2010).
15
Id. at 391.
16
Id. at 390–91.
17
Id. at 391.
18
Id.7
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based on its limited statement.” 19 Therefore, this Court vacated Zapata-
Lara’s sentence and remanded for resentencing, instructing the district court
to “make the appropriate findings and state plainly the basis for its decision”
if it determined that the weapon enhancement was applicable. 20
Similarly, in this case, the district court did not explain the basis for
its decision that the two-level firearm enhancement applied to Sincleair. The
PSR addendum attempts to attribute both methods of possession—personal
and co-conspirator—to Sincleair, but it is not clear that either applies. The
PSR and its addendum, which the district court relied on, do not provide
enough facts to support a finding that Sincleair was engaged in a drug
trafficking conspiracy with Ilczyszyn and Wood 21 such that the firearm,
which was never connected to a specific person, was knowingly possessed by
a “co-conspirator” and that possession was foreseeable to Sincleair. 22
Moreover, there is not enough in the record to support the firearm
enhancement based on Sincleair’s personal possession of the firearm because
the PSR did not include sufficient facts establishing a temporal and spatial
relationship between the gun, the drug trafficking activity, and Sincleair. The
Government (and the probation officer) did not provide any evidence
establishing that Sincleair owned the weapon, brought the weapon with him
19
Id.20
Id.21
The factual resume that Sincleair signed in support of his plea stated that only
Kuhn and Wilbur, who were not at Wood’s residence, were involved in a conspiracy with
Sincleair to possess methamphetamine with intent to distribute. The factual resume made
no mention of Ilczyszyn, Wood, or Markezinis.
22
Ordinarily, a buyer-seller relationship, which the PSR implied existed between
Sincleair and Ilczyszyn, is insufficient to create a conspiracy. See United States v. Mata, 491
F.3d 237, 241 (5th Cir. 2007) (“It is well settled that evidence of a buyer-seller relationship
is not, by itself, sufficient to support a conviction for conspiracy.”).
8
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to Wood’s house, or had any other connection to it. Neither the PSR nor any
other evidence supports a finding of temporal proximity between Sincleair’s
drug trafficking activity and the weapon found in Wood’s house. The only
relevant facts in the PSR are that Sincleair was Ilczyszyn’s source for
methamphetamine, and Sincleair and Ilczyszyn and their girlfriends were
present at Wood’s home for a social gathering around the time that Ilczyszyn
sold an ounce of methamphetamine to Wood. Thus, the only drug
transaction that is documented in the PSR occurred in Wood’s home
between Ilczyszyn and Wood. Even if it may be inferred that Sincleair sold
the methamphetamine to Ilczyszyn, there is no evidence of any temporal
proximity between Sincleair’s sale and the presence of the weapon; there is
no evidence that the sale occurred on the same day, same week, or even same
month as Ilczyszyn’s sale to Wood. There is also no evidence that Sincleair
promoted or assisted in the sale in any way. The temporal connection
between the firearm and any drug trafficking by Sincleair was thus tenuous at
best. 23
Nevertheless, as the Zapata-Lara court concluded, we do not need to
determine whether Sincleair personally possessed the weapon or whether a
co-conspirator (if any) possessed it and the possession was reasonably
foreseeable to Sincleair, because we “cannot be sure what rationale the
[district] court had in mind to support the enhancement, based on its limited
statement.” 24
23
Sincleair’s circumstances are distinguishable from cases where the Government
puts forth no facts supporting an enhancement. Here, there is at least a tenuous connection
between Sinclear, the drug trafficking activity, and the firearm. In contrast, where no such
evidence is present, the Government fails to meet its burden and reversal is appropriate.
24
See Zapata-Lara, 615 F.3d at 391.
9
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For the foregoing reasons, we VACATE the sentence and
REMAND for resentencing. If, on remand, the district court determines
that the two-level firearm enhancement is applicable, “it should make the
appropriate findings and state plainly the basis for its decision.” 25 We express
no view on what sentence the district court should impose on remand.
25
See id.10
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Andrew S. Oldham, Circuit Judge, dissenting:
The majority faults the district court for being unclear about which
theory of firearm possession supported its sentencing enhancement. But the
district court’s explanation was pellucid. Then the majority claims the record
does not support the enhancement anyway. That’s wrong too. I respectfully
dissent.
I.
The Sentencing Guidelines provide a two-point offense-level increase
where “a dangerous weapon (including a firearm) was possessed.” U.S.S.G.
§ 2D1.1(b)(1). Our precedent in turn provides the Government with two
alternative routes for satisfying § 2D1.1(b)(1):
First, the Government can prove that the defendant personally
possessed the weapon by showing that a temporal and spatial
relation existed between the weapon, the drug trafficking
activity, and the defendant. Alternatively, when another
individual involved in the commission of an offense possessed
the weapon, the Government must show that the defendant
could have reasonably foreseen that possession.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764–65 (5th Cir. 2008)
(quotation omitted).
Here, the district court plainly relied on the first of these two
theories—personal possession of the firearm by the defendant. The PSR says
U.S.S.G. § 2D1.1(b)(1)’s sentencing enhancement applies because “CCSO
executed a search warrant at a residence where a methamphetamine
transaction was taking place[,] [t]he defendant was present for the
transaction, and a firearm was present on a table during this transaction.” In
other words: (1) There was a drug deal, (2) Sincleair was there, and (3) there
was a gun on the table for the duration of the deal. Those factual findings—
11
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which the district court adopted—directly track the requirements for the first
theory of “personal possession.” The PSR, aside from changing the order of
the three prongs, practically copied-and-pasted the text of our precedent.
The district court therefore was perfectly justified in accepting and following
the PSR.
The majority’s only real response is to paint the PSR (and by
implication, the district court) as “attempt[ing] to attribute both methods of
possession—personal and co-conspirator—to Sincleair.” Ante, at 9. But this
is a misreading. The PSR’s mention of the co-conspirator theory (i.e., the
second way to establish “personal possession”) was made in the alternative:
“The probation officer also supports the 2-level enhancement in paragraph
21, even if the defendant did not personally possess the firearm present at the
methamphetamine transaction.” (emphases added). Giving two alternative
and independent bases for a conclusion is not the same as hemming and
hawing between those alternatives.
II.
The record supports the district court’s finding that Sincleair
personally possessed the weapon. The PSR expressly links Sincleair both to
the drug transaction between Ilczyszyn and Wood and to the gun that was
sitting nearby: It notes that Sincleair “was present for the transaction, and a
firearm was present on a table during th[e] transaction.” Both of those
statements, the PSR explains, come from “investigative material compiled
and prepared by the [DEA]” that was “clarified and corroborated” by a DEA
agent and “considered reliable by [a] probation officer.” Thus, the record
establishes the required connections among weapon, trafficking, and
defendant. See Cisneros-Gutierrez, 517 F.3d at 764–65.
The majority makes five claims in its effort to resist this conclusion.
But each claim is either undercut by the record or has no bearing on this case.
12
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First, the majority claims there was no evidence Sincleair “owned” the gun,
“brought [it] with him to Wood’s house, or had any other connection to it.”
Ante, at 9. This claim is entirely irrelevant. The majority operates on the
ungrounded assumption that owning or toting a weapon are prerequisites for
possessing it. The majority’s understanding of possession is squarely
foreclosed by our test for possession—which requires a mere “temporal and
spatial relation” between the gun and the defendant. See Cisneros-Gutierrez,
517 F.3d at 764–65.
Second, the majority claims Sincleair was at Wood’s home only for a
“social gathering.” Ante, at 10. Sincleair did try to rebut the PSR’s evidence
by stating in an objection that he and Ilczyszyn showed up to Wood’s house
for a social gathering and not for a drug deal. But he offered no evidence to
that effect, so the district court was permitted to “disregard his unsworn
assertions.” United States v. King, 773 F.3d 48, 54 (5th Cir. 2014). And the
court did precisely that when it adopted the PSR.
Finally, the majority claims that (3) “the only drug transaction that is
documented in the PSR occurred in Wood’s home between Ilczyszyn and
Wood,” (4) “[t]here is . . . no evidence that Sincleair promoted or assisted in
the [Ilczyszyn-Wood] sale in any way,” and (5) “there is no evidence of any
temporal proximity between Sincleair’s sale [to Ilczyszyn] and the presence
of the weapon.” Ante, at 10.
These last claims all center on the idea that Sincleair may not have
been involved enough in the Ilczyszyn-Wood transaction to warrant the
sentence enhancement. But the PSR specifically said Sincleair was
Ilczyszyn’s methamphetamine supplier, and that Sincleair showed up at
Wood’s home so he could be there for the Ilczyszyn-Wood deal. A drug supplier
has an obvious interest in the distribution of his product. And in any event, I
repeat that our court requires only a “temporal and spatial relation” among
13
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the weapon, the drug deal, and the defendant—and there simply is no
requirement that the defendant himself be the buyer or the seller. See
Cisneros-Gutierrez, 517 F.3d at 764–65. The majority offers neither
explanation nor justification for its rejection of our precedents.
I respectfully dissent.
14