United States v. Rufus Merlin Sumlin ( 2001 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 00-2091
    ___________
    United States of America,                 *
    *
    Appellee,                    * Appeal from the United States
    * District Court for the
    v.                                  * Eastern District of Missouri.
    *
    Rufus Merlin Sumlin, Jr.,                 *      [UNPUBLISHED]
    *
    Appellant.                   *
    ___________
    Submitted: April 19, 2001
    Filed: May 7, 2001
    ___________
    Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
    ___________
    PER CURIAM.
    Rufus Merlin Sumlin, Jr., pleaded guilty to being a felon in possession of a
    firearm and being a felon in possession of ammunition, both in violation of 
    18 U.S.C. § 922
    (g)(1) (1994). At sentencing, he objected to receiving only a two-level, rather
    than three-level, reduction for acceptance of responsibility, and to the application of a
    four-level enhancement under U.S.S.G. § 2K2.1(b)(5) for using or possessing firearms
    in connection with another felony offense.
    The government linked Sumlin’s possession of firearms with his possession and
    sale of drugs on the basis of police reports, introduced through the testimony of the
    probation officer who had reviewed them in preparing the presentence report. The
    reports related that firearms were present when Sumlin sold drugs to a confidential
    informant. The reports also showed that at the time of his arrest there, Sumlin had a
    loaded firearm in his pocket and that there was drug residue in the apartment. The
    District Court overruled Sumlin’s objections, finding an adequate evidentiary basis for
    the enhancement, and sentenced him to eighty-two months imprisonment and three
    years supervised release. Sumlin renews on appeal the arguments he presented below.
    Sumlin’s challenge to the acceptance-of-responsibility reduction he received is
    foreclosed by his stipulation to a two-level reduction in his written plea agreement. See
    United States v. Barrett, 
    173 F.3d 682
    , 684 (8th Cir. 1999); United States v. Nguyen,
    
    46 F.3d 781
    , 783 (8th Cir. 1995).
    We conclude, however, that the District Court lacked an adequate factual basis
    for applying the challenged enhancement. By virtue of Sumlin’s objection, the
    government had the burden to prove a connection between the firearms and another
    felony offense, but it did not show that its hearsay evidence bore sufficient indicia of
    reliability. See U.S. Sentencing Guidelines Manual § 6A1.3(a) (1998) (stating that a
    sentencing court may consider relevant evidence which might be inadmissible at trial,
    provided the information has sufficient indicia of reliability); United States v. Wise, 
    976 F.2d 393
    , 402-04 (8th Cir. 1992) (en banc) (discussing when hearsay is sufficiently
    reliable under § 6A1.3(a)), cert. denied, 
    507 U.S. 989
     (1993). We believe that a more
    probative evidentiary hearing on this issue is warranted.
    Accordingly, we vacate Sumlin’s sentence and remand for resentencing
    consistent with this opinion. Apart from the enhancement, Sumlin’s conviction and
    sentence are affirmed in all other respects.
    -2-
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -3-
    

Document Info

Docket Number: 00-2091

Judges: Bowman, Beam, Loken

Filed Date: 5/7/2001

Precedential Status: Non-Precedential

Modified Date: 11/6/2024