United States v. James E. Bronaugh , 895 F.2d 247 ( 1990 )

DAVID A. NELSON, Circuit Judge.

Under 18 U.S.C. § 924(a), the crime of making a false statement to procure a firearm is punishable by imprisonment for up to five years. Under the sentencing guidelines, however, if no related offense is involved, the crime is normally punishable by a sentence in the range of four to twenty-seven months, depending on the defendant’s criminal history.

Defendant James E. Bronaugh pleaded guilty to a single charge of procuring a firearm through a false statement. Mr. Bronaugh’s criminal history was such that the sentence range indicated by the guidelines ordinarily would have been imprisonment for six to twelve months. The sentence imposed by the district court was five years. The reason for this was that the court found, by a preponderance of the evidence, that Bronaugh had used the firearm in drug trafficking — and § 2K2.1(c)(l) ^* of the guidelines tells the court that “[i]f the defendant used the firearm in committing or attempting another offense,” the court is to “apply the guideline in respect to such other offense....” The guideline range in respect to drug trafficking exceeds five years.

On appeal, defendant Bronaugh contends that there was insufficient evidence to show that he used the firearm in drug trafficking. We disagree, and we shall affirm the sentence.

Mr. Bronaugh, a resident of Michigan, admittedly arranged to have an Ohio resident named Robert Gibson purchase a .45 L.A.R. Grizzly pistol for him in Ohio without informing the firearms dealer that Bro-naugh was the real buyer. In so doing, Mr. Bronaugh admittedly violated the federal firearms laws.

The illegal purchase (which involved another handgun as well) was made on October 12, 1988, at “Sam’s Emporium” on East Exchange Street in Akron, Ohio. Seven days after the purchase of the weapon, Mr. Bronaugh was arrested at Detroit Metropolitan Airport in possession of 448 grams of crack cocaine. Apparently he was not armed at the time of his arrest.

In a statement given to federal authorities on November 21, 1988, less than six weeks after the purchase of the gun, Mr. Gibson said that on October 12 he and a sometime girlfriend, Pam Hamilton, went to Sam’s gun store with Defendant Bro-naugh. Bronaugh and Gibson both entered the store, while Pam Hamilton remained in a car outside. As summarized in the pre-sentence report, Mr. Gibson’s statement continued as follows:

“Gibson related that the defendant picked out two guns and then produced $1,100 in cash while he, Gibson, filled out the firearm transaction forms. * * * Gibson told agents that the defendant chose both weapons and provided the money for both weapons. According to Gibson, they all went to Pam’s house at 1045 Biruta Avenue, with the guns, and ... the defendant told Gibson that he did not have any money left to pay him $150; that he would pay him later. Gibson told agents that he had not seen the defendant ... or the guns since that day.”

The clerk who handled the October 12 transaction at Sam’s store subsequently confirmed that Defendant Bronaugh had been in the store with Gibson, and that Gibson had signed as the purchaser of the weapons. Ms. Hamilton also confirmed Gibson’s account of the purchase, as the presentence report notes in describing an interview that federal agents had with Ms. Hamilton on November 28, 1988. Ms. Hamilton also told agents that Bronaugh had used her residence at 1045 Biruta Avenue as a place to sell cocaine, and that she had seen Bronaugh and a fellow drug dealer with four weapons, including an Uzi and an AKS rifle, as early as June of 1988. There is no reason to believe that Ms. Hamilton was not in continuous residence at 1045 Biruta Avenue from June through at least October 12, 1988.

Defendant Bronaugh was interviewed by a federal agent on April 6, 1989, shortly after Bronaugh pleaded guilty to the illegal purchase of the .45 L.A.R. Grizzly pistol. In the course of the interview, according to the presentence report,

“defendant advised that agent that he [i.e., Defendant Bronaugh] had hidden the .45-caliber pistol in Akron and would surrender the weapon only if he was allowed to accompany the agent to the place. Otherwise he would not disclose the location of the weapon.”

The gun was never recovered.

A sentencing hearing was held before the district court on May 22, 1989. The court had the benefit of the presentence report, of course, and the report was supplemented by live testimony from Ms. Hamilton, Mr. Gibson, and two other witnesses.

Taken together, the presentence report and the live testimony leave no room for doubt that Defendant Bronaugh and his confederates were operating an extensive retail cocaine business out of Ms. Hamilton’s home at 1045 Biruta Avenue. The place was open for business 24 hours a day, and in the course of a single hour there might be as many as 15 to 20 customers. One customer, a friend of Ms. Hamilton’s named Debra Thurmon, testified that there was “[tjraffic enough so you could make about five [thousand] or $6,000 [a day].” Ms. Hamilton testified that Bro-naugh was bringing the drugs from Detroit, and on one occasion she herself had helped one of Bronaugh’s associates carry drugs to Toledo from Detroit.

Ms. Thurmon, Ms. Hamilton, and Mr. Gibson all testified to having seen Defendant Bronaugh at the crack house with firearms. Two big guns, including the Uzi, were kept there in a duffel bag, according to Ms. Hamilton, “and it was like three or four hand guns that always laid around.” When asked what kind of guns she had seen Mr. Bronaugh carry, Ms. Hamilton answered that “[h]e would have like maybe a .45 and the Uzi_”

Mr. Gibson, a narcotics user himself, testified that he had seen about three guns in the house, including a .38 semi-automatic rifle and a couple of handguns. On cross-examination, Mr. Gibson testified that the only weapon he actually saw Mr. Bronaugh with was the rifle.

The district court did not interpret Mr. Gibson’s testimony as a repudiation of what Gibson had previously told the agents about buying two handguns for Mr. Bro-naugh on October 12 and going with Bro-naugh and Ms. Hamilton to the latter’s house with the guns. (In another part of the cross-examination, after defense counsel had reminded Gibson of the statement he had given the authorities in November, Gibson confirmed that he had said then that he never saw Bronaugh after the purchase of the handguns on October 12. Counsel had every opportunity to show that the earlier report of what happened on October 12 was inaccurate, but counsel did not allude to the report further and made no direct attempt to discredit it.)

The district court was obviously satisfied with the accuracy of Mr. Gibson’s November 21 statement about the two men and Ms. Hamilton all going to the crack house at 1045 Biruta Avenue with the illegally purchased guns. At the conclusion of the testimony, the court made the following findings:

“The Court finds that the government has established by the preponderance of the evidence that the defendant did use the firearm obtained as described in the indictment in his ongoing operation with others of a house where cocaine powder and cocaine crystals ... commonly referred to as cocaine crack were being sold....”

The inference that the illegally purchased .45 caliber handgun described in the indictment did in fact go into the crack house is important, and Mr. Bronaugh’s counsel was specifically asked about it during the argument of this appeal. Without conceding that the presence of the handgun in the crack house meant that the gun was “used” in any drug transaction, counsel acknowledged — quite properly, in our view — that it would be fair to infer that the gun went into the house. “We have to infer,” counsel said, “that it went into the house.”

It may be instructive for us to quote the colloquy:

“COUNSEL: The only testimony we have by Gibson is that they dropped the folks off at 1045—

JUDGE: With the gun?

COUNSEL: With the gun. Yes, sir. I mean, they dropped—

JUDGE: So the gun went into the house?

COUNSEL: Well, we don’t have actual evidence that they went into the house. I don’t mean to pick here, but I mean they dropped—

JUDGE: Where else would it have gone?

COUNSEL: I’m sorry, your Honor.

JUDGE: Where else would it have gone?

COUNSEL: We have to infer that it went into the house. That’s the only thing we have there is inference, and I don’t believe that the government during the course of the hearing proved by a preponderance of the evidence that it was used in the drug transaction.”

Trial courts, when they act as finders of fact, draw inferences all the time. In this instance, we believe, it was perfectly reasonable for the trial court to draw the same inference that Defendant Bronaugh’s own lawyer did: the .45 L.A.R. Grizzly pistol that Mr. Bronaugh had purchased illegally went into the crack house at 1045 Biruta Avenue with Mr. Bronaugh when Mr. Gibson dropped him and Ms. Hamilton off there on October 12, 1988. There was no place else for the gun to go.

The burden was not upon the government to show at the sentencing hearing that Defendant Bronaugh went to the crack house at 1045 Biruta Avenue with the particular weapon that was the subject of the indictment, because that fact was clearly stated in the presentence report and the defendant never challenged it. The presentence report had to be disclosed to the defendant and his counsel at least ten days before the date set for sentencing, see 18 U.S.C. § 3553(d), and no one denies that proper disclosure was made in this instance. The defendant and his counsel were afforded an opportunity to comment on the report, as required by Rule 32, Fed. R.Crim.P., and at no point did they allege that the report was factually inaccurate in this respect. Mr. Gibson, the source of the information about the defendant’s having gone to the crack house with the gun, was actually made available for cross-examination — and Mr. Bronaugh’s able counsel chose not to question him about the truthfulness of his statement that Bronaugh had gone to the house with the gun. The fact stands unimpeached.

It is true that that trial judge did not give the parties advance notice that he would interpret the facts set forth in the presentence report as meaning that Bro-naugh had taken the .45 L.A.R. Grizzly with him into the crack house when everyone went there after the illegal purchase. But as this court said in United States v. Ford, 889 F.2d 1570, 1572 (6th Cir.1989), “we do not believe [Rule 32] requires a judge in all cases to give the parties advance notice of and a chance to comment on the judge’s interpretation of the facts.” We do not believe that there was any such requirement here, the judge having made the only interpretation of the facts that would be reasonable.

In computing the guideline offense level for the crime to which Mr. Bronaugh pleaded guilty, the probation department proceeded on the understanding that the firearm described in the indictment “was to be used to protect drug trafficking activities.” The inference that the gun was so used was accepted by the district court, as we have seen. Taking certain aggravating factors into account, the court determined that the offense level for trafficking in 448 grams of cocaine indicated a sentence in the range of 262 to 327 months. Applying that guideline, as instructed by § 2K2.1(c)(l), but not going above the statutory maximum for the weapons offense of which the defendant had been convicted, the court imposed a sentence of 60 months. A sentence shorter than 60 months, the court said, would represent an unwarranted downward departure from the guidelines.

Mr. Bronaugh argues on appeal that the district court committed clear error in finding that the .45 caliber Grizzly pistol was used in committing a drug trafficking offense. Inviting us to draw an analogy to cases decided under 18 U.S.C. § 924(c), which creates additional criminal liability for one who, “during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm,” he argues that those cases require a tighter nexus between the firearm and the related offense than is present here.

In United States v. Henry, 878 F.2d 937 (6th Cir.1989), however, we adopted the “drug fortress” theory,

“which holds that if it reasonably appears that the firearms found on the premises controlled or owned by a defendant and in his actual or constructive possession are to be used to protect the drugs or otherwise facilitate a drug transaction, then such firearms are used ‘during and in relation to’ a drug trafficking crime.”

878 F.2d at 944. See also United States v. Acosta-Cazares, 878 F.2d 945, 951 (6th Cir.), cert. denied, — U.S. -, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989), where we held that “ ‘uses’ and ‘carries’ should be construed broadly to cover the gamut of situations where drug traffickers have ready access to weapons with which they secure or enforce their transactions.”

Mr. Bronaugh seeks to distinguish the line of cases leading to Henry and Acosta-Cazares by noting that in the case at bar no gun was ever found. This distinction is unavailing. By pleading guilty, Bronaugh admitted that the gun existed. The gun was clearly in the drug house, and there was a wealth of testimony showing that it was not the only weapon Bronaugh had there. The district court had ample grounds for finding that these weapons— including the Grizzly, which was purchased only seven days before Bronaugh was arrested in possession of 448 grams of cocaine — were used in the drug business.

It may be thought anomalous that a defendant can receive a five-fold increase in his sentence because a preponderance of the evidence indicates he is guilty of an uncharged crime. But such increases are possible, under the guidelines, not only where the other crime is uncharged, but where the other crime does not even come within the jurisdiction of the federal courts. As the commentary to § 2K2.1 notes,

“The firearm statutes often are used as a device to enable the federal court to exercise jurisdiction over offenses that otherwise could be prosecuted only under state law. For example, a convicted felon may be prosecuted for possessing a firearm if he used the firearm to rob a gasoline station. Such prosecutions result in high sentences because of the true nature of the underlying conduct. The cross reference at § 2K2.1(c) deals with such cases.”

The piggy-back philosophy reflected in this comment, like the similar philosophy reflected in the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, is a controversial one. The controversy, however, turns on congressional judgments that are not subject to amendment by the judiciary.

It is also important to note that the guidelines cannot result in the imposition of a sentence outside a range set by statute. Whatever the sentence to which defendant Bronaugh would have been subjected had he been convicted of drug trafficking, the sentence he actually received did not exceed the maximum that Congress thought would be appropriate for the weapons offense of which he was convicted. Before the advent of guideline sentencing, there could have been no doubt of the authority of the district court to impose a five-year sentence for the weapons offense. The imposition of a five-year sentence under the guidelines is certainly no more anomalous than the imposition of the same sentence would have been in the pre-guide-line era.

The sentence is AFFIRMED.

* Effective November 1, 1989, § 2K2.1(c)(1) was renumbered (with an inconsequential change in language) as § 2K2.1(c)(2).