United States v. Bothun, Aric R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1388
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARIC R. BOTHUN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-CR-83-C-01—Barbara B. Crabb, Chief Judge.
____________
ARGUED FEBRUARY 16, 2005—DECIDED SEPTEMBER 15, 2005
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Before EASTERBROOK, WOOD, and SYKES, Circuit Judges.
WOOD, Circuit Judge. Aric Bothun got more than he
bargained for when he returned to the border checkpoint
near El Paso, Texas, to find out why his friend, Jacob
Johnson, had not yet passed through. When he reached the
border, he found Johnson and then some. Law enforcement
agents had stopped Johnson, who was driving Bothun’s
truck and trailer, and had found 80 grams of a mix-
ture containing methamphetamine, some marijuana, and
$32,543 in cash. Both Johnson and Bothun were arrested.
After a grand jury indicted Bothun, he pleaded guilty to one
count of attempting to possess with the intent to deliver 50
grams or more of methamphetamine, in violation of 21
U.S.C. § 846.
2 No. 04-1388
In this appeal, Bothun raises two challenges to the
way that the district court applied the U.S. Sentencing
Guidelines in determining his sentence; he also asserts that
his Sixth Amendment rights were violated when his
sentence was increased based on judicially found facts,
under then-mandatory Guidelines. We find no error in the
application of the Guidelines, but Bothun is entitled to a
limited remand under United States v. Paladino, 401 F.3d
471 (7th Cir. 2005), for a determination whether the district
court would impose a different sentence under the now-
advisory guidelines. See United States v. Booker, 125 S.Ct.
738 (2005).
I
Months before Bothun’s capture at the border, the Drug
Enforcement Administration (DEA) received information
from an informant about Bothun’s drug activities that
eventually led to the DEA’s search and seizure of 75.3
grams of methamphetamine from Bothun’s mailbox at a
Mailboxes Etc. store. After obtaining a search warrant
covering both Bothun’s Edgerton, Wisconsin, home and two
storage units leased to him, the DEA conducted a search
and found a wealth of drugs, drug paraphernalia, and guns.
At Bothun’s home the DEA agents discovered a .22 caliber
rifle and ammunition in a child’s bedroom. The agents also
found marijuana, pharmaceutical bottles, needles, syringes,
mailing labels, and other drug paraphernalia in the home.
In the attic above Bothun’s workshop, which was attached
to his garage, the agents found two rifles and a shotgun,
more marijuana and methylenedioxyamphetamine. In the
Madison storage unit, the agents found a .40 caliber semi-
automatic handgun, a digital scale, 83.8 grams of
Oxycodone, 2.02 grams of Hyrcodone, and marijuana.
Finally, at Bothun’s storage locker in Edgerton, the agents
found 7,646 grams of marijuana.
No. 04-1388 3
In July 2003, following his arrest in Texas, a grand jury
indicted Bothun in a two-count indictment charging him
with violations of 21 U.S.C. § 846 for conspiring to possess
with intent to distribute more than 50 grams of metham-
phetamine and attempting to possess with intent to distrib-
ute more than 50 grams of methamphetamine. Bothun
pleaded guilty to Count Two in October 2003.
In the fall of 2003, while incarcerated at the Dane County
Jail awaiting sentencing, Bothun made several calls to his
wife, during which he instructed her how to manufacture
methamphetamine. Bothun indicated that he would send
her a letter with a “recipe” describing how to cook “cake and
stuff.” He also had his wife speak to another inmate, known
as Country, to whom Bothun referred as his “chemist
buddy”; Country also offered Ms. Bothun some tips on how
to manufacture methamphetamine. Bothun told his wife to
“hit” various Wal-Marts each day to purchase the ingredi-
ents and slowly build up a stock of cold medicine that could
be converted into methamphetamine.
In February 2004, the district court sentenced Bothun
to 235 months’ imprisonment based on its finding that
Bothun was responsible for possessing with intent to
distribute at least 3,000 but not more than 10,000 kilo-
grams of marijuana equivalent. (The Drug Equivalency
Tables that follow U.S.S.G. § 2D1.1 translate most common
drugs into an equivalent amount of marijuana, to facilitate
comparisons. Under the table, one gram of methamphet-
amine equals two kilograms of marijuana; one gram of what
is called methamphetamine (actual)— meaning the weight
of the pure substance in a mixture—equals 20 kilograms of
marijuana.) The court increased his sentence by two levels
under U.S.S.G. § 2D1.1(b)(1) because it found that he
possessed a gun in connection with a drug offense. The
court found that the government had met its burden of
showing that the guns found at Bothun’s home and storage
locker were used in connection with his drug distribution.
4 No. 04-1388
Bothun objected to the application of the gun enhancement
on the ground that the government had not shown that he
actually possessed the weapons or that he was present in
the home or storage facilities when the guns were there, but
the court was not persuaded. The court also determined
that Bothun should not receive a reduction for acceptance
of responsibility because of his efforts (along with those of
Country) to have his wife continue to manufacture metham-
phetamine while he was incarcerated.
II
A
Bothun’s first argument on appeal is that the district
court erred in enhancing his sentence by two levels for
possession of a weapon in connection with a drug crime,
because (he asserts) the evidence did not permit a finding
that he had direct or constructive possession of the weapons
found in his home. The government never offered physical
proof that he had touched any of the guns, nor did it
introduce testimonial evidence from its informants that he
had used the weapons. Finally, according to Bothun, the
government failed to prove that he exercised the type of
control over the weapons that would be necessary for a
finding of constructive possession. Post-Booker we continue
to review the court’s application of the Sentencing Guide-
lines de novo and its factual findings for clear error. United
States v. Turner, 400 F.3d 491, 500 (7th Cir. 2005); see also
United States v. Garcia, 413 F.3d 201, 221-24 (2d Cir. 2005)
(explaining why and how the clear error standard of review
for factual findings applies even though the ultimate issue
is reasonableness).
The application note to § 2D1.1(b)(1) instructs a court
to apply this provision “if the weapon was present, unless
it is clearly improbable that the weapon was connected with
the offense.” § 2D1.1, cmt. n.3. This determination requires
No. 04-1388 5
that the government first prove by a preponderance of the
evidence that the defendant possessed the gun. United
States v. Corral, 324 F.3d 866, 872 (7th Cir. 2003). If the
government is able to do so, the burden shifts to the
defendant to show that it was “clearly improbable” that the
weapon was connected to the offense. Id. “Actual possession
of the firearm need not be established in order to trigger the
enhancement. Instead, proof of constructive possession, that
is, that the defendant had the power and the intention to
exercise dominion or control of the firearm, is sufficient to
warrant the enhancement.” Id. (quoting United States v.
Thomas, 294 F.3d 899, 906 (7th Cir. 2002)).
The government met its initial burden. We described
earlier the many firearms that the agents found when they
searched Bothun’s home and storage units. Those weapons
were found close by drugs and drug paraphernalia. As we
have explained before, “guns found in close proximity to
drug activity are presumptively connected to that activity.”
Corral, 324 F.3d at 873. Bothun did not introduce evidence
compelling the district court to find that it was clearly
improbable that the weapons were used in connection with
the offense. See, e.g., United States v. Brack, 188 F.3d 748,
764 (7th Cir. 1999). We thus find no clear error in the
court’s decision to apply the firearm enhancement described
in § 2D1.1(b)(1).
B
Bothun also challenges his sentence because the court did
not give him a reduction for acceptance of responsibility
under § 3E1.1. He claims that the court had a rigid “policy
not to give acceptance when a defendant commits a new
offense during the case.” As a result of the purported policy,
he accuses the court of refusing to engage in the “context-
specific” inquiry required for determining whether a
defendant should receive an acceptance of responsibility
6 No. 04-1388
reduction under United States v. Frykholm, 267 F.3d 604,
611 (7th Cir. 2001). We review the court’s decision to deny
a reduction in a defendant’s sentence for acceptance of
responsibility for clear error. United States v. Hicks, 368
F.3d 801, 808 (7th Cir. 2004).
The application note to § 3E1.1 explains that a guilty plea
is usually evidence that the defendant has accepted respon-
sibility. See § 3E1.1, cmt. n.3. The district court may
nevertheless consider a defendant’s continued criminal
activity in the course of deciding whether he should receive
a reduction for acceptance of responsibility, although such
activity does not automatically preclude the reduction. See
United States v. McDonald, 22 F.3d 139, 141 (7th Cir.
1994). As we explained in McDonald:
Although a guilty plea before trial is significant evi-
dence of acceptance of responsibility, it may be out-
weighed by conduct of the defendant that is inconsis-
tent with such acceptance. . . . A district court may
conclude that continued criminal activity, such as use
of a controlled substance, is not consistent with accep-
tance of responsibility.
Id. at 144 (internal citation omitted).
In Bothun’s case, the court found that “Mr. Bothun had
an opportunity to show that he accepted responsibility when
he was arrested and jailed, and instead of demonstrating
that he understood the seriousness of his conduct at that
time and the criminal nature of his conduct, he engaged in
continuing criminal conduct about which there’s no dis-
pute.” Bothun challenged that decision because it was made
at the time of sentencing rather than at the time of the
plea, but the court explained:
I’m not making a definitive ruling, but it has been my
practice to consider what a defendant did when he
was arrested and when he pleaded. And when that
No. 04-1388 7
defendant in this case, or in other cases, where he
continues to engage in criminal activity, I do not give
acceptance of responsibility.
It is somewhat troublesome that the judge said that she had
a “practice” of not giving defendants a reduction when they
continue to engage in criminal activity, because the Guide-
lines do not authorize the court to adopt a per se rule
denying a reduction when a defendant engages in further
criminal activity after his plea. Nevertheless, in this case
the judge’s comments taken as a whole reassure us that she
properly weighed all the circumstances before rejecting the
adjustment for acceptance of responsibility. In particular,
her comments immediately prior to this statement indicate
that she made a context-specific inquiry into Bothun’s
actions. We conclude, therefore, that the court did not apply
the Guidelines incorrectly in this instance and that it did
not commit clear error in refusing to award Bothun a
reduction for acceptance of responsibility.
III
The court imposed a sentence of 235 months’ imprison-
ment based on its finding that Bothun possessed with
intent to distribute the equivalent of 3,000 kilograms of
marijuana, but not more than 10,000 kilograms. This drug
quantity dictated an offense level of 34. After the court
imposed the two-level enhancement under § 2D1.1(b)(1),
bringing his offense level up to 36, and it determined that
his Criminal History Category was III, it arrived at a
Guidelines range of 235 to 293 months. Within that range,
the court decided that “[a] sentence at the bottom of the
range will be sufficient to reflect the seriousness of [his]
conduct and protect the community.” Imposing the sen-
tence, the judge commented, “I’m not particularly happy
about the length of the sentence that I have to give you, but
just for your and [your attorney’s] thinking, I believe that
8 No. 04-1388
it is my job to apply the guidelines the way they are set up
to work and not to try to arrive at a lower sentence by just
ignoring the guidelines and the various factors that do
contribute to a long sentence.”
Although we have found no error in the court’s application
of the Guidelines, the fact that it did so under the impres-
sion that the Guidelines were mandatory and the lack of
any indication that the court would have imposed the same
sentence under any circumstances put this case in the
familiar category of those that require a limited remand
under the terms of Paladino, 401 F.3d at 483-84. In all
other respects, we AFFIRM the judgment of the district
court, but while retaining jurisdiction over the appeal, we
order a LIMITED REMAND to the district court so that it can
advise us whether it is inclined to resentence now that it is
clear that the Guidelines are advisory.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-15-05