United States v. Justin Harper , 766 F.3d 741 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3161
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUSTIN J. HARPER, also known as
JUSTIN G,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:12-cr-30300-GPM-1 — G. Patrick Murphy, Judge.
ARGUED APRIL 25, 2014 — DECIDED SEPTEMBER 9, 2014
Before KANNE AND ROVNER, Circuit Judges, and DOW,
District Judge.*
ROVNER, Circuit Judge. On October 5, 2011, Justin J. Harper
was arrested, pursuant to a warrant for a violation of his
*
The Honorable Robert M. Dow, Jr., of the Northern District of Illinois,
sitting by designation.
2 No. 13-3161
parole, in the back house of a two-house property which was
referred to as a trap house—or drug house. Harper and his
girlfriend were located in the rear bedroom of that house,
where the agents also recovered a loaded 9mm semi-automatic
pistol on the floor under the nightstand and a large piece of
suspected cocaine base on top of that nightstand. Fingerprint
analysis subsequently revealed Harper’s fingerprints on the
magazine of that weapon. In the closet of the bedroom, the
agents discovered another large amount of suspected cocaine
base. The search of other areas of the house, including clothes
and secret compartments yielded a Glock .40 caliber semi-
automatic pistol loaded with a large capacity magazine,
numerous rounds of ammunition, many clear plastic bags of
controlled substances, a digital scale, and $368 in U.S. currency.
Laboratory analysis identified the controlled substances seized
from the residence as including 148.6 grams of heroin, 105.4
grams of cocaine base, 1 gram of marijuana, and 10 capsules of
an unknown substance.
Harper maintained that he resided at the front house with
his aunt and used the back house only when he had women
visiting. He claimed that two other individuals lived in the rear
house and were responsible for the drugs, and that they were
staying elsewhere when the agents arrived with the warrant
that morning.
Ultimately, Harper pled guilty to one count of felon in
possession of a weapon in violation of 18 U.S.C. § 922(g)(1).
The Presentence Report (PSR) initially determined a base
offense level of 14 for the firearms offense but, applying the
enhancement in U.S.S.G. § 2K2.1(c), the district court also
considered evidence of a drug offense and calculated the
No. 13-3161 3
proper offense level as 26. The district court sentenced Harper
to a term of imprisonment of 100 months and three years of
supervised release. Harper now appeals his sentence.
In sentencing Harper, the district court adopted the
guideline calculation in the PSR and applied § 2K2.1, which
applies to offenses involving unlawful receipt, possession or
transportation of firearms or ammunition and to prohibited
transactions involving firearms or ammunition. That section
includes a cross reference, which provides that “[i]f the
defendant used or possessed any firearm … in connection
with the commission or attempted commission of another
offense, … apply [U.S.S.G.] § 2X1.1 (Attempt, Solicitation, or
Conspiracy) in respect to that other offense, if the resulting
offense level is greater than that determined above… .”
U.S.S.G. § 2K2.1(c)(1)(A). The district court held that Harper
possessed the firearm in connection with the commission of the
offense of distribution of a controlled substance, based on the
drugs found in the residence in proximity to Harper and the
firearm and on the testimony presented at the sentencing
hearing regarding Harper’s sales of such controlled substances.
Because the Sentencing Guidelines calculations under § 2X1.1
resulted in a higher offense level, pursuant to § 2K2.2(c)(1)(A)
the district court utilized that higher level. See United States v.
Howard, 729 F.3d 655, 664 (7th Cir. 2013) (“[t]he guideline for
unlawful possession of a firearm instructs the court to use the
offense level for another offense in the guideline calculation …
if the defendant possessed the firearm during the other offense
and the offense level for the other crime would be greater.”)
In a sentencing challenge, we review factual determinations
underlying the application of the Sentencing Guidelines for
4 No. 13-3161
clear error. United States v. Anobah, 734 F.3d 733, 736 (7th Cir.
2013). We have recognized that the sentencing judge is in the
best position to determine the credibility of witnesses at the
sentencing hearing, and will not disturb the credibility deter-
mination unless it is without foundation. United States v. White,
519 F.3d 342, 348 (7th Cir. 2008). Legal interpretations of
Guidelines, however, are reviewed de novo. See United States v.
Earls, 704 F.3d 466, 473 (7th Cir. 2012).
Harper contends that the application of § 2K2.1 was
improper because the district court lacked reliable evidence of
any connection between the firearms offense and any drug
offense. In addition, he argues that the district court failed to
make findings regarding the drug quantity, that the offense
does not fall within the conspiracy or attempt language of
§ 2X1.1, and that the use of that provision violated his rights
under the Fifth and Sixth Amendments. We consider these
arguments in turn.
Harper contends that the district court applied the cross
reference in § 2K2.1(c) based solely upon its finding that drugs
and guns are always related. He asserts that there was no
reliable evidence connecting the firearms possession to a drug
offense, and therefore the court improperly applied that cross
reference. In holding that Harper possessed the firearm in
connection with a drug offense, the district court relied upon
the evidence found at the time of the execution of the search at
the residence and the testimony of Special Agent Stephen M.
Kirkpatrick at the sentencing hearing. The search of the
residence established that Harper was in close physical
proximity to controlled substances, some of which were in
plain view. The firearm which Harper admitted possessing was
No. 13-3161 5
on the floor under the nightstand next to the bed, and a large
piece of cocaine base was on top of that nightstand. A substan-
tial amount of cocaine base was also found in the closet of that
bedroom. In addition to that evidence, however, the district
court also was presented with testimony by Special Agent
Kirkpatrick. He testified that on August 22, 2012, he inter-
viewed a friend of Harper, Travis Garner, who provided
information regarding Harper’s drug distribution activities.
Garner stated that he was physically present in the rear house
with Harper on the night before Harper was arrested, and he
saw Harper selling cocaine base to two or three people that
night. He further averred that Harper showed him three
ounces of heroin and two ounces of cocaine base that evening.
Garner told Kirkpatrick that when he was at the house that
night, he saw a firearm near the bed on the floor and cocaine
base in the closet of that bedroom. Harper was able to cross-
examine Kirkpatrick and he argued to the district court that it
should not credit the testimony particularly given the length of
time that had passed from the arrest to that statement. The
district court recognized those issues, but ultimately concluded
that the statement was reliable because the details provided by
Garner were corroborated by the agents’ observations during
the search. The description by Garner as to the location of the
firearm and the cocaine base, as well as the type and amount
of drugs present in the house that night, matched what the
agents observed hours later on the morning of the search.
A district court may rely on hearsay in sentencing even if it
would not have been admissible at trial, as long as that hearsay
is deemed reliable. United States v. Johnson, 489 F.3d 794, 796–97
(7th Cir. 2007); United States v. Isom, 635 F.3d 904, 908 (7th Cir.
6 No. 13-3161
2011) (courts may rely even on double hearsay as long as those
statements are reliable.) The district court determined that the
statement was reliable because the details of the statement
were corroborated by the agents’ observations, and that
determination is well within the province of the district court.
See id. (“[r]eliability can be established by internal consistency,
corroborating evidence, and providing missing facts and
details”). The district court therefore properly considered that
evidence in determining whether the firearms offense was
connected to a drug offense, and that effectively dooms
Harper’s challenge here. The statement by Garner as recounted
by Kirkpatrick indicates that Harper was selling drugs from
that residence the night before the arrest, and that a firearm
was visible on the floor of the bedroom at the time of those
transactions. Harper pled guilty to possession of a firearm
found in that same area the next morning.
Although Harper argues that the drug offense cannot be
considered relevant conduct, that argument is without support
once Garner’s statement is credited because the firearm was
present during the drug offense. The Application Note to
§ 2K2.1 makes clear that the presence of a firearm in the course
of a drug transaction is sufficient under this provision. Section
2K2.1(c)(1)(A) applies “in the case of a drug trafficking offense
in which a firearm is found in close proximity to drugs, drug-
manufacturing materials, or drug paraphernalia” and provides
that “[i]n these cases, application of … (c)(1) is warranted
because the presence of the firearm has the potential of
facilitating … another offense.” Numerous cases have recog-
nized that connection as well, holding that “‘[t]he seizure of a
firearm in close proximity to illegal drugs is considered
No. 13-3161 7
powerful support for the inference that the firearm was used
in connection with the drug trafficking operation.’” United
States v. Meece, 580 F.3d 616, 621 (7th Cir. 2009), quoting United
States v. Markovitch, 442 F.3d 1029, 1032 (7th Cir. 2006); see also
United States v. Alcantar, 733 F.3d 143, 147 (5th Cir. 2013).
Harper also argues, briefly, that the district court failed to
make an explicit finding of the drug amount. That is belied by
the record, because the court adopted the findings in the
Presentence Report (PSR) which calculated the drug quantity
by attributing to Harper two ounces of cocaine base and three
ounces of heroin. Harper contends that the PSR contradicts
itself because it notes that according to the government no
credible evidence exists to determine the amount of drugs
attributable to the defendant. That sentence, however, must be
read in context in the PSR. There may have been insufficient
evidence to determine whether Harper possessed all of the
148.6 grams of heroin and 105.4 grams of cocaine base discov-
ered in the residence; therefore, the PSR explicitly utilized only
the drug quantities that Harper physically possessed and was
offering for sale the night before his arrest, according to
Garner’s statement which the district court deemed reliable –
two ounces of cocaine base and three ounces of heroin. That is
a sufficient basis for the drug quantity determination in the
PSR, which was accepted by the district court.
The remaining challenges by Harper have no support in the
law. He asserts that § 2X1.1 is inapplicable because the court
did not determine that an “attempt” or “conspiracy” took
place. Harper fails to provide any support for such a require-
ment, which presumably he bases on the title of § 2X1.1—
“Attempt, Solicitation, or Conspiracy.” Section 2X1.1 is
8 No. 13-3161
referenced by § 2K2.1, which applies to firearms offenses, and
§ 2K2.1 is not limited to attempts or conspiracies. In fact, by its
own terms, § 2K2.1 directs reference to § 2X1.1 if the firearm is
used in connection with the “commission or attempted commis-
sion of another offense.” [emphasis added] Therefore, by its
plain language its application is not limited to attempts or
conspiracies. In Earls, we addressed a similar challenge in
which the defendant argued that Application Note 2 of § 2X1.1
defined “substantive offense” as the offense a defendant was
convicted of soliciting, attempting or conspiring to commit.
704 F.3d at 474. Earls argued that under that definition the
cross reference in § 2K2.1 applied only to other offense
convictions. Id. We held that the commentary of Application
Note 2 did not apply when § 2X1.1 is reached by cross refer-
ence from § 2K2.1, as such a note was “logically intended to be
applied when 2X1.1 is applied directly, not when it is reached
through cross reference” in § 2K2.1. Id. Similarly, the reference
to attempts or conspiracy are applicable when reached directly
but not here on cross reference because it is inconsistent with
the language in § 2K2.1. The district court properly utilized the
§ 2X1.1 cross reference in calculating the offense level.
Finally, Harper briefly argues that § 2K2.1 itself is inher-
ently violative of the Fifth and Sixth Amendments because it
directs the court to seek out a higher offense level than the one
applicable to the offense conduct itself. Harper states that the
Supreme Court in McMillan v. Pennsylvania, 477 U.S. 79, 88
(1986), was critical of cases in which the sentence factor
outweighs the charged offense conduct and cautioned against
permitting a sentence enhancement to be the “tail which wags
the dog.” Rather than argue as to the impact in his particular
No. 13-3161 9
case, however, Harper asserts a general facial challenge to the
§ 2K2.1(c) enhancement itself, asserting that it is intrinsically
faulty in that by instructing the court to seek out higher offense
levels it effectively ensures that the sentencing factor is the “tail
which wags the dog.” Harper presents no support for this
sweeping argument. He cites to caselaw holding that an
increase in the applicable penalty for a crime is an element that
must be submitted to a jury and found beyond a reasonable
doubt, but this enhancement does not increase the statutory
penalty applicable to the offense so that caselaw is irrelevant.
Nor is the Guidelines provision arbitrary. The Sentencing
Commission could properly determine that the possession of
a firearm by a felon in the context of another offense such as
drug trafficking is inherently more dangerous than mere
possession absent such activity, and that such a pairing
elevates the danger of such firearm being actually used.
Accordingly, the Sentencing Commission could properly
determine that a higher offense level is warranted in such a
circumstance. The requirement that the district court employ
the higher offense level in calculating the Guidelines range
reflects that recognition, but the district court of course has the
discretion to impose whatever sentence it determines to be
appropriate in consideration of the factors set forth in 18 U.S.C.
§ 3553(a). Harper has failed to present any cogent argument
that this provision is violative of the Fifth or Sixth Amend-
ments.
That said, numerous courts and the Sentencing Commission
itself have recognized the potential for § 2K2.1 to sweep within
its reach wide-ranging offenses that may be connected only
tenuously. Firearms may be possessed over a long period of
10 No. 13-3161
time and that raises the potential for the use of a felon-in-
possession conviction as an anchor to reach all kinds of other
conduct through that enhancement provision. Courts have
long recognized the potential for abuse, and many have limited
that reach by holding that other offenses must fall within
relevant conduct in order to trigger the § 2K2.1(c) enhance-
ment. See, e.g., United States v. Jones, 313 F.3d 1019, 1022–23 (7th
Cir. 2002); United States v. Kulick, 629 F.3d 165, 169 (3rd Cir.
2010) and cases cited therein. The Sentencing Commission also
has addressed that concern in an amendment effective Novem-
ber 1, 2014, which eliminates the incorporation of offenses that
involved a firearm other than the firearm used in the offense of
conviction, and clarifies that courts must consider the relation-
ship between the offense of conviction and the other offense
consistent with relevant conduct principles. U.S.S.G. § 2K2.1
Proposed Application Note 14(E), effective November 1, 2014.
The limitations of the relevant conduct consideration will
protect against some of the feared abuse. Those legitimate
concerns with overreaching, however, are simply not present
here because the firearm offense involved the possession of a
weapon that was also in the defendant’s possession hours
earlier in the course of drug sales, and clearly falls within the
scope of relevant conduct. Harper therefore has raised no
meritorious challenge to his sentence.
The decision of the district court is AFFIRMED.