United States v. Markovitch, Tony R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3296
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TONY R. MARKOVITCH,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05-CR-59-S—John C. Shabaz, Judge.
____________
ARGUED FEBRUARY 17, 2006—DECIDED APRIL 3, 2006
____________
Before FLAUM, Chief Judge, and KANNE and WOOD,
Circuit Judges.
FLAUM, Chief Judge. On March 2, 2005, police in Madi-
son, Wisconsin arrested Tony Markovitch. At the time of his
arrest, Mr. Markovitch was in possession of 5.5 grams of
marijuana, 4 grams of cocaine, a small scale, and a hand-
gun. After Markovitch pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1),
the district court determined that he possessed the firearm
in connection with another felony offense. As a result, the
district court imposed a four-level enhancement under
United States Sentencing Guidelines § 2K2.1(b)(5).
2 No. 05-3296
Markovitch appeals this enhancement. For the following
reasons, we now affirm the judgment of the district court.
I. Background
On March 2, 2005, Police Officer Cindy Mierow observed
the defendant, Tony Markovitch, driving erratically. Officer
Mierow attempted to conduct a traffic stop and after several
abrupt turns, Markovitch stopped his vehicle. Backup
officers arrived at the scene as well.
The officers detected slurred speech and the smell of
alcohol on Markovitch’s breath. He was asked to exit his
vehicle so the officers could perform a field sobriety test.
After he exited his vehicle, Markovitch was repeatedly told
to keep his hands out of his coat pockets. When he would
not comply, officers conducted a patdown search. They
discovered a loaded pistol in the waistband of his pants. A
further search revealed 5.5 grams of marijuana, 4 grams of
cocaine, and a small scale in his coat pockets.
Officer Mierow also observed blood on Markovitch’s nose
and blood on the car door panel. When she retrieved the
gun from his waistband, Markovitch stated, “People are
tying to kill me.” After his arrest, the police took
Markovitch to a hospital where a blood sample was taken.
The blood sample indicated a high level of cocaine in his
bloodstream.
Markovitch pled guilty to the sole charge of the indict-
ment in this case, 18 U.S.C. § 922(g)(1) (“It shall be unlaw-
ful for any person-- who has been convicted in any court of,
a crime punishable by imprisonment for a term exceeding
one year; . . . to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm
or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or
foreign commerce.”).
No. 05-3296 3
On July 27, 2005, the district court sentenced Markovitch.
In accordance with United States v. Booker, 543 U.S. 220(2005), the district court considered the statutory purposes
of sentencing contained in 18 U.S.C. § 3553(a) and viewed
the sentencing guidelines as advisory. The district court
granted a two-level downward departure for acceptance of
responsibility under United States Sentencing Guidelines
§ 3E1.1(a) and a one-level downward departure for having
entered a timely guilty plea under § 3E1.1(b). The district
court also imposed a four-level enhancement under §
2K2.1(b)(5). This enhancement is applicable when a defen-
dant uses or possesses “any firearm or ammunition in
connection with another felony.” U.S.S.G. § 2K2.1(b)(5).
After calculating the enhancements and reductions, the
district court found a total offense level of 21 and a criminal
history category of III, yielding a guideline range of 46-57
months. The district court described its imposition of a 54-
month sentence as “necessary to hold this defendant
accountable for his serious firearm[ ] offense which will also
serve as a deterrent to him and others while taking into
account the sentencing factors as set forth in [18 U.S.C. §]
3553.”
Markovitch appeals, claiming that the district court erred
by imposing the four-level enhancement under Sentencing
Guidelines § 2K2.1(b)(5).
II. Discussion
The sole question before the Court is whether the district
court committed clear error in finding Markovitch’s posses-
sion of a firearm was connected to another felony. See
United States v. Wyatt, 102 F.3d 241, 246 (7th Cir. 1996)
(stating that review of a district court’s sentencing enhance-
ment under U.S.S.G. § 2K2.1(b)(5) is a mixed question of
fact and law that we review for clear error). “Where there
are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.” Anderson
4 No. 05-3296
v. City of Bessemer, 470 U.S. 564, 574 (1985) (citing United
States v. Yellow Cab Co., 338 U.S. 338, 342 (1949); Inwood
Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844 (1982)).
United States Sentencing Guidelines § 2K2.1(b)(5)
provides for a four-level enhancement to the sentence of an
individual convicted of being a felon in possession of a
firearm, if the defendant “used or possessed [the] firearm . .
. in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(5). “The government bore the burden of proving
by a preponderance of the evidence that this enhancement
was applicable.” Wyatt, 102 F.3d at 246 (citing United
States v. Foutris, 996 F.2d 1158, 1160 (7th Cir. 1992)). The
firearm’s “presence or involvement [with the allegedly
connected crime] cannot be the result of accident or coinci-
dence.” Id. at 247 (quoting Smith v. United States, 508 U.S.
223, 228 (1993)).
The Seventh Circuit has concurred with the Ninth Circuit
and the First Circuit in defining the nexus required to
satisfy § 2K2.1(b)(5).
[I]n United States v. Routon, 25 F.3d 815, 819 (9th Cir.
1994), the Ninth Circuit has determined that the “in
connection with” requirement is satisfied where the
“firearm was possessed in a manner that permits an
inference that it facilitated or potentially facili-
tated--i.e., had some potential emboldening role in--a
defendant’s felonious conduct.” And, the First Circuit
has stated that “the phrase ‘in connection with’ should
be interpreted broadly and . . . where a defendant’s
possession of a firearm aids or facilitates the commis-
sion of another offense, the requisite link is present.”
United States v. Thompson, 32 F.3d 1, 7 (1st Cir. 1994).
Wyatt, 102 F.3d at 247.
Markovitch argues that the handgun he possessed did not
aid in any other felony. He claims that the cocaine found in
his possession was indicative of a high level of consumption
(allegedly up to 7 grams per day), but not of trafficking. To
No. 05-3296 5
bolster this claim, Markovitch cites his bloody nose as
evidence that he was in the midst of a cocaine “binge” at the
time of his arrest. While we are mindful of Markovitch’s
substance abuse problems and the circumstances of his
arrest on his twentieth birthday, we cannot make the
logical conclusion Markovitch asks us to draw: that his high
volume of drug use makes the drug trafficking inference
unreasonable.
Even if this Court were to accept Markovitch’s interpreta-
tion of the evidence as the more likely than the district
court’s interpretation, such a finding would not be sufficient
to demonstrate clear error. When inferences drawn by the
district court are “sufficiently supported by the evidence”
they cannot be considered “clearly erroneous.” Id. at 248.
This Court has repeatedly found that handguns are a
“ ‘tool[ ] of the trade’ in the drug business.” United States v.
Turner, 93 F.3d 276, 289 (7th Cir. 1996) (citing United
States v. Armond, 920 F.2d 480, 482-83 (7th Cir. 1990)).
“The seizure of a firearm in close proximity to illegal drugs
is considered powerful support for the inference that the
firearm was used in connection with the drug trafficking
operation.” United States v. Ewing, 979 F.2d 1234, 1238
(7th Cir. 1992) (citing United States v. Nunez, 958 F.2d 196,
200 (7th Cir. 1992); United States v. Franklin, 896 F.2d
1063, 1065-66 (7th Cir. 1990)).
When the police arrested Markovitch, he was in posses-
sion of several items indicative of drug trafficking: a large
quantity of cocaine, a handgun, and a scale.1 In addition to
the physical evidence in Markovitch’s possession, his recent
1
Although Markovitch abandons the argument before this Court,
before the district court Markovitch argued that buyers use scales
to check the weight of their purchases. While this may be true, it
would not be clear error to find that this scale was used as a tool
to sell drugs, not buy.
6 No. 05-3296
conviction in February 2005 for possession with intent to
deliver THC lends further support to the inference that he
intended to distribute the drugs he was carrying.2 The
district court made a reasonable inference that the handgun
in Markovitch’s waistband was connected to the drugs and
scale in his pockets and applied the appropriate sentencing
enhancement.
III. Conclusion
For the above stated reasons, we AFFIRM the judgment of
the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
2
We need not address the government’s argument that we may
affirm the district court’s enhancement based upon the alternative
theory that Markovitch’s possession of marijuana is an additional
felony offense, upon which the § 2K2.1(b)(5) enhancement may be
based.
USCA-02-C-0072—4-3-06