United States v. Cheney ( 2006 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 06a0364n.06
    Filed: May 24, 2006
    No. 04-6516
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                          )
    )
    Plaintiff-Appellee,                         )
    )
    v.                                                 )   ON APPEAL FROM THE UNITED
    )   STATES DISTRICT COURT FOR THE
    THOMAS G. CHENEY,                                  )   EASTERN DISTRICT OF TENNESSEE
    )
    Defendant-Appellant.                        )
    Before: BOGGS, Chief Judge; SUTTON, Circuit Judge; and SCHWARZER, District Judge*
    SUTTON, Circuit Judge. Thomas Cheney pleaded guilty to being a felon in possession of
    a firearm, and the district court imposed a 37-month sentence under the then-mandatory sentencing
    guidelines. Because the district court did not err in calculating his guidelines sentence and because
    it issued an identical, alternative sentence in the event the Supreme Court invalidated the guidelines,
    as of course it did, see United States v. Booker, 
    543 U.S. 220
    (2005), United States v. Christopher,
    
    415 F.3d 590
    , 593 (6th Cir. 2005), we affirm.
    *
    The Honorable William W Schwarzer, Senior United States District Judge for the Northern
    District of California, sitting by designation.
    No. 04-6516
    United States v. Cheney
    I.
    Officer Christopher McDonald of the East Ridge, Tennessee Police Department received a
    tip that Thomas Cheney and others were selling methamphetamine and cocaine from a unit in a
    storage facility. Upon arriving at the storage facility at 10:30 p.m., Officer McDonald obtained
    permission from the facility’s owner for him (and by then another officer who had arrived on the
    scene) to search the facility. Soon after entering the facility, the two officers encountered Cheney
    working on a car in front of an open door to one of the units. Cheney identified himself to the
    officers, after which McDonald heard what sounded like a pistol hit the ground. Shining his light
    on Cheney, he saw a .38-caliber revolver which the officers picked up and determined was loaded.
    The officers handcuffed Cheney and performed a protective sweep of Cheney’s three-room storage
    unit, where they found in plain view a loaded shotgun and a .22-caliber rifle. Cheney then consented
    to a search of his unit, which uncovered a purple book bag containing 360 grams of marijuana, 0.2
    grams of methamphetamine, 4.4 grams of powder cocaine, a digital scale and 22.5 grams of a
    substance that the officers suspected was crack cocaine.
    When police inventoried Cheney’s belongings at the police station, they discovered a receipt
    for a different storage unit at the facility. After obtaining a search warrant, officers searched the
    second storage unit and found six other guns as well as a box for the .38-caliber revolver seized on
    the night of Cheney’s arrest.
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    No. 04-6516
    United States v. Cheney
    A grand jury indicted Cheney for being a felon in possession of a firearm, see 18 U.S.C.
    § 922(g), and for possessing with an intent to distribute more than five grams of cocaine, see 21
    U.S.C. § 841(a)(1), (b)(1)(B). After the court held a suppression hearing—at which it denied
    Cheney’s motion to suppress the evidence found in the storage units—and after tests indicated that
    the 22.5 grams of suspected crack cocaine did not contain a banned substance, Cheney pleaded
    guilty to the felon-in-possession charge.
    At Cheney’s sentencing hearing, the district court adopted the presentence investigation
    report and applied the then-mandatory sentencing guidelines in determining Cheney’s sentence.
    Consistent with the report, the district court increased Cheney’s offense level by four levels because
    he had possessed a firearm in connection with another felony offense. See U.S.S.G. § 2K2.1(b)(5).
    The court sentenced Cheney to 37 months in prison, which represented the low end of the guidelines
    sentencing range of 37 to 46 months. At the conclusion of the sentencing hearing, Cheney claimed
    that his sentence violated the Sixth Amendment as interpreted by Blakely v. Washington, 
    542 U.S. 296
    (2004). “If this court were to sentence the defendant in the absence of the guidelines but within
    the statutory sentencing range,” the district court responded, “the sentence would be exactly the
    same as [that] which I have imposed here.” JA 167.
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    No. 04-6516
    United States v. Cheney
    II.
    Cheney appeals on two grounds: (1) the district court erred in increasing his offense level
    by four levels under § 2K2.1(b)(5) of the guidelines, and (2) the district court violated the Sixth
    Amendment as interpreted by United States v. Booker, 
    543 U.S. 220
    (2005), in sentencing him.
    A.
    If a defendant “used or possessed any firearm or ammunition in connection with another
    felony offense,” § 2K2.1(b)(5) of the guidelines says that a sentencing court should “increase [the
    offense level] by 4 levels.” Simultaneous but “coincidental” possession of firearms and drugs, we
    have held, does not suffice to establish that a defendant possessed firearms “in connection with” a
    drug offense. See, e.g., United States v. Hardin, 
    248 F.3d 489
    , 495 (6th Cir. 2001). But under what
    has come to be known as the “fortress theory,” “a sufficient connection is established” for purposes
    of § 2K2.1(b)(5) “if it reasonably appears that the firearms” were used “to protect the drugs.”
    United States v. Clay, 
    346 F.3d 173
    , 179 (6th Cir. 2003) (internal quotation marks omitted); see
    United States v. Ennenga, 
    263 F.3d 499
    , 502 (6th Cir. 2001). “We review for clear error the district
    court’s factual findings, and accord ‘due deference’ to the district court’s determination that the
    USSG § 2K2.1(b)(5) enhancement applies.” United States v. Burke, 
    345 F.3d 416
    , 426–27 (6th Cir.
    2003); see also 
    Ennenga, 263 F.3d at 502
    (applying a “deferential standard of review” to the district
    court’s application of § 2K2.1(b)(5)).
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    No. 04-6516
    United States v. Cheney
    The district court did not err in applying § 2K2.1(b)(5) to Cheney. At a minimum, on the
    night of his arrest, Cheney possessed a loaded .38-caliber revolver and had a loaded shotgun in open
    view in his storage unit. This same storage unit also contained digital scales as well as cocaine,
    marijuana and methamphetamine. As this court has reasoned in published and unpublished
    decisions, a sentencing court has ample discretion to apply the fortress theory in this and comparable
    settings. See, e.g., 
    Clay, 346 F.3d at 179
    (applying § 2K2.1(b)(5) where the defendant was
    “apprehended in an uninhabited apartment late at night with a bag of cocaine and a large amount of
    cash on his person” and the defendant “was carrying a firearm”); 
    Hardin, 248 F.3d at 500
    (applying
    § 2K2.1(b)(5) where the defendant possessed a 9-mm pistol and a large stash of cocaine in his
    bedroom); United States v. Conley, No. 03-1157, 
    2004 WL 500984
    , at *1–2 (6th Cir. Mar. 11, 2004)
    (applying § 2K2.1(b)(5) where the defendant possessed the firearm “in close proximity to the
    drugs,” police “seized drug paraphernalia” from the defendant, “the firearm was . . . the type of
    firearm used by drug dealers,” the defendant could not give a “reason for th[e] need” to possess the
    gun, “grand jury testimony indicated that [the defendant] was a drug dealer[,] and the firearm was
    loaded”); United States v. Holt, Nos. 03-5119, 03-5120, 
    2003 WL 22976639
    , at *1–2 (6th Cir. Dec.
    8, 2003) (applying § 2K2.1(b)(5) where the defendant “stored the weapons and the marijuana in the
    same location” and failed to “provide any other reason for having the firearms”); United States v.
    Richardson, No. 01-6416, 
    2003 WL 22097854
    , at *3 (6th Cir. Sept. 4, 2003) (applying
    § 2K2.1(b)(5) where the defendant possessed the gun under his mattress next to $7,000 in drug
    proceeds); United States v. Martin, Nos. 00-6164, 00-6165, 
    2002 WL 147858
    , at *7 (6th Cir. July
    9, 2002) (applying § 2K2.1(b)(5) where the “weapons were found inside and outside of the house,
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    No. 04-6516
    United States v. Cheney
    as was marijuana or evidence thereof, [and] drug paraphernalia was found inside the house along
    with large quantities of cash”).
    Trying to fend off this conclusion, Cheney argues that he did not admit to these facts and that
    the government did not otherwise prove them at sentencing. But the presentence report, which the
    district court expressly adopted, contained a detailed recitation of these precise facts and an ample
    evidentiary basis for finding them, including Cheney’s possession of the various guns and the drugs
    and scale contained in the storage unit. Confirming the point, Cheney’s counsel (Mr. Coleman) did
    not object at sentencing when the court and the government referred to the guns and drugs that were
    listed in the report as possessed by Cheney. See JA 159–60 (no objection to government’s recitation
    of items found in the storage unit: “359 grams of marijuana, only about four grams of cocaine, and
    then” a small amount of methamphetamine); JA 160 (“THE COURT: But they had—the drugs were
    in that storage unit. And we had, we got not one but two loaded weapons there.”). A short time
    later, Cheney’s counsel conceded the existence of these facts. See JA 161 (“MR. COLEMAN:
    Well, I’m not disagreeing with any of the facts . . . .”); see also JA 156 (“MR. COLEMAN: . . . Mr.
    Cheney pled guilty to possessing nine firearms having had a prior felony offense. Three of [the
    firearms] were the only ones that were in proximity to any narcotics . . . . [W]hat narcotics were
    found in the place were found in a bag . . . in a storage unit . . . . I don’t believe that those facts are
    in dispute.”).
    For the first time in his reply brief, Cheney separately argues that the district court
    misapplied § 2K2.1(b)(5) because the court enhanced his sentence based on the possession of a
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    No. 04-6516
    United States v. Cheney
    firearm in connection with felony possession of other firearms. When the district court applied the
    four-level enhancement under 2K2.1(b)(5), Cheney points out, the court noted:
    I believe that the evidence that was presented here . . . makes it very clear that . . . by
    a preponderance of the evidence that the gun was, the guns were possessed in
    connection with another felony offense, that is felon in possession, a felon in
    possession charge.
    JA 161 (sentencing hearing). Application note 18 to § 2K2.1(b)(5), Cheney adds, indicates that a
    court normally may not enhance a felon-in-possession sentence on the ground that the defendant
    committed the offense in connection with another felon-in-possession offense. U.S.S.G. Manual
    § 2K2.1(b)(5) cmt. n.18 (2003) (“As used in subsections (b)(5) and (c)(1), ‘another felony offense’
    and ‘another offense’ refer to offenses other than explosives or firearms possession or trafficking
    offenses.”).
    Cheney, however, did not raise this argument in his opening appellate brief, and accordingly
    it is waived. United States v. Moore, 
    376 F.3d 570
    , 576 (6th Cir. 2004). The argument, at any rate,
    is flawed. Read in context, the sentencing-hearing transcript reveals that the court understood that
    the proposed enhancement turned on Cheney’s simultaneous possession of drugs and firearms. See
    JA 159 (responding to government’s assertion that “the proof is that [Cheney] had those guns to
    protect . . . the drugs that he had”: “The drugs were found in that storage unit? . . . [T]he quantity
    of drugs was what?”); JA 160 (“[H]ere’s the situation as I see it. . . . The officer heard what sounded
    to him like a pistol hit the ground. . . . And sure enough . . . Mr. Cheney was standing there, and
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    No. 04-6516
    United States v. Cheney
    there was a .38 there.”); 
    Id. (“But they
    had—the drugs were in that storage unit. And he had, we got
    not one but two loaded weapons there.”); JA 161 (“He had drugs in there.”).
    The parties’ positions at sentencing reinforce that conclusion. During the hearing, both sides
    focused on supporting or defeating the enhancement based on a felon-in-possession charge in
    connection with drug distribution. See JA 155–56 (Cheney’s counsel) (noting at the hearing’s outset
    that although he filed some “narrative corrections” to the presentence report, the only objection he
    had to the report was that the guns were not possessed, in his view, “in connection with” the drugs);
    JA 158 (government counsel) (stating that “[o]ur position, Your Honor, is that the guns were in
    connection with this other felony offense of possession of drugs with intent to resale”).
    While we have some sympathy for Cheney’s position that the judge’s concluding remark is
    confusing, it does not compel the interpretation that Cheney gives to it. Having said nothing up to
    that point about enhancing Cheney’s sentence based on his offense’s connection to a felon-in-
    possession charge, having heard nothing from the parties up to that point about such an enhancement
    and having adopted, in the same hearing, a presentence report based on felon in possession in
    connection with drug distribution, the judge’s remark must be read in context as meaning something
    else. More plausibly, his oral remark simply reveals an incomplete idea that simply reiterates that
    the underlying felony was a felon-in-possession charge, as shown by the following bracketed
    alteration:
    I believe that the evidence that was presented here . . . makes it very clear that . . . by
    a preponderance of the evidence that the gun was, the guns were possessed in
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    No. 04-6516
    United States v. Cheney
    connection with another felony [offense. That] is felon in possession, a felon in
    possession charge.
    JA 161 (altered from original). Bolstering this interpretation, Cheney’s counsel did not object to the
    remark when it was made and did not even mention it to this court in his opening brief on appeal.
    Cheney also argues that the district court violated Rule 32 of the Federal Rules of Criminal
    Procedure by failing to make specific fact findings or to rule on his objections to the presentence
    investigation report. See Fed. R. Crim. P. 32(i)(3). But as noted above, the district court did make
    such a finding by expressly adopting the presentence investigation report and the factual findings
    contained in it. What is more, at the beginning of the sentencing hearing, Cheney’s attorney
    acknowledged that his only objection to the report was its legal conclusion that Cheney possessed
    the firearms “in connection with” felony drug possession, an argument that the court addressed by
    explaining that the “fortress theory” applies in this setting.
    Cheney next argues that Bailey v. United States, 
    516 U.S. 137
    (1995), and United States v.
    Wade, 
    318 F.3d 698
    (6th Cir. 2003), prohibit us from using the fortress theory. Both cases,
    however, involved 18 U.S.C. § 924(c), which distinctly criminalizes the “use” of a firearm “in
    furtherance of” a drug crime. Since both decisions, we have distinguished “possession” from “use”
    and “in connection with” from “in furtherance of” in continuing to apply the fortress theory to §
    2K2.1 enhancements. See, e.g., United States v. Covert, 
    117 F.3d 940
    , 947–48 (6th Cir. 1997)
    (holding that courts may still give § 2K2.1(b)(5) enhancements under the fortress theory after
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    No. 04-6516
    United States v. Cheney
    Bailey); 
    Clay, 346 F.3d at 179
    (giving a § 2K2.1(b)(5) enhancement under the fortress theory after
    Wade).
    B.
    Cheney, lastly, argues that his sentence violates Booker. Although the district court applied
    the then-mandatory guidelines in sentencing Cheney, it gave an identical, alternative sentence in
    view of the concern that the Supreme Court might invalidate the guidelines. “[W]hen a district court
    imposes alternative, identical sentences, one under a regime in which Guidelines enhancements are
    not mandatory, the harmlessness of any Booker error is established.” 
    Christopher, 415 F.3d at 593
    .
    Because the district court imposed such an alternative sentence and because Cheney has not shown
    that this alternative sentence was unreasonable, we need not remand this case for resentencing. See
    
    Christopher, 415 F.3d at 594
    (noting that a district court’s failure to mention the § 3553(a) factors
    does not establish reversible error when the defendant fails to offer “any explanation on appeal as
    to what factors listed in § 3553(a) the district court should have considered, or how these factors
    would have made a difference in the sentence he received”).
    III.
    For these reasons, we affirm.
    - 10 -