United States v. Daniel W. Savage ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2023
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Daniel W. Savage, *
*
Appellant. *
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Submitted: November 15, 2004
Filed: July 18, 2005
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Before RILEY, JOHN R. GIBSON and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Daniel W. Savage (“Savage”) pled guilty to possession with intent to distribute
50 grams or more of a mixture or substance containing methamphetamine in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1). The district court1 sentenced Savage to 168
months’ imprisonment and 5 years’ supervised release. Savage appeals his sentence
on the grounds that the district court clearly erred in finding that he possessed a
1
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
firearm in connection with the drug offense to which he pled guilty under U.S.
Sentencing Guidelines § 2D1.1(b)(1) and that he should be resentenced under
advisory guidelines pursuant to United States v. Booker, 125 S. Ct. 738 (2005). We
affirm.
A. BACKGROUND
After Savage entered his plea, the United States Probation Office prepared a
presentence investigation report (“PSR”) that recommended a two-level upward
adjustment to Savage’s base offense level for the specific offense characteristic of
possession of a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1). That
enhancement was based on information provided by Grace Charles (“Charles”), who
lived with Savage for about a month during the summer of 2002. Charles made
statements to investigators that were incorporated into the PSR and testified at
Savage’s sentencing hearing.
At the sentencing hearing, Charles testified that while living with Savage, she
saw him selling methamphetamine in his small apartment. She also saw him use a
scale to measure methamphetamine for distribution. In addition, Charles twice
observed a large firearm that “looked close to a shotgun” in Savage’s apartment.
Charles first saw the firearm leaning against the wall of Savage’s bedroom closet. In
the same bedroom, Charles witnessed Savage use a scale to weigh methamphetamine
and sell methamphetamine to others. Charles last saw the firearm in Savage’s living
room during an argument they had over money she owed him for rent and food.
Charles gave Savage an ounce of methamphetamine to settle her debt, but the
argument continued. After Charles threw a soft drink on Savage, he went to his
bedroom and returned with the firearm she had seen in his closet. Savage pointed the
gun at Charles and told her to “pack up and get out of his house.”
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In addition to Charles’s testimony that Savage distributed methamphetamine
from his apartment during the summer of 2002, the district court considered other
evidence that established continuous methamphetamine trafficking by Savage from
January, 2003, until his arrest in August, 2003. In light of the events Charles
described and other evidence concerning Savage’s methamphetamine distribution, the
district court imposed the two-level § 2D1.1(b)(1) enhancement to Savage’s base
offense level, concluding that it was not clearly improbable the firearm was connected
to Savage’s drug dealing.
B. ANALYSIS
This Court reviews the district court’s interpretation and application of the
guidelines de novo and its findings of fact for clear error. United States v. Mashek,
406 F.3d 1012, 1016-17 (8th Cir. 2005) (holding that Booker did not affect this
Court’s standards of review for a sentencing court’s application of the sentencing
guidelines); see also United States v. Atkins, 250 F.3d 1203, 1213 (8th Cir. 2001)
(holding that this Court reviews for clear error a district court’s finding that a
defendant possessed a firearm during a drug trafficking offense).
First, Savage contends that the district court clearly erred by applying the
dangerous-weapon enhancement of § 2D1.1(b)(1) because of the time that elapsed
between his possession of the gun and his arrest and the lack of direct evidence
connecting the firearm to the drug trafficking offense to which he pled guilty. We
disagree.
Section 2D1.1(b)(1) mandates a two-level enhancement if the Government can
prove by a preponderance of the evidence that the defendant possessed “a dangerous
weapon (including a firearm)” while violating 21 U.S.C. § 841(b). U.S.S.G. §
2D1.1(b)(1); see also United States v. McCracken, 110 F.3d 535, 541 (8th Cir. 1997).
The firearm must be connected with the criminal activity before its possession can be
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used to enhance the defendant’s sentence. United States v. Turpin, 920 F.2d 1377,
1386 (8th Cir. 1990). The mere presence of a firearm is an insufficient predicate for
a § 2D1.1(b)(1) enhancement. United States v. Shields, 44 F.3d 673, 674 (8th Cir.
1995); U.S.S.G. § 2D1.1, cmt. n.3 (“For example, the enhancement would not be
applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the
closet.”). The enhancement, however, “should be applied if the weapon was present,
unless it is clearly improbable that the weapon was connected with the offense.”
U.S.S.G. § 2D1.1, cmt. n.3; see also United States v. Moore, 184 F.3d 790, 794 (8th
Cir. 1999).
Savage argues that the district court erred in applying the § 2D1.1(b)(1)
dangerous-weapon enhancement because of the break in time between the summer
of 2002, when Charles observed the firearm in Savage’s apartment, and his arrest
roughly one year later. We disagree because the dangerous-weapon enhancement
applies if the firearm is present during “relevant conduct,” as defined by U.S.S.G. §
1B1.3(a)(2), not merely during the offense of conviction. United States v. Barresse,
115 F.3d 610, 612 (8th Cir. 1997). In other words, the dangerous-weapon
enhancement applies if the weapon was used during acts that “were part of the same
course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(2); United States v. Moore, 212 F.3d 441, 447 (8th Cir. 2000) (holding
that when determining what constitutes relevant conduct, “the district court ‘should
consider the similarity, regularity, and temporal proximity of the conduct.’” (quoting
United States v. Geralds, 158 F.3d 977, 979 (8th Cir. 1998))).
In this case, the Government presented evidence that Savage sold the same
drug, methamphetamine, in the same manner over the course of a year. Although the
record is devoid of evidence of Savage’s activities between the summer of 2002 and
January 2003, that break is insignificant given the evidence of Savage’s multi-month
drug dealing. Based on Savage’s established history of drug dealing, the district court
reasonably inferred that Savage’s activities during the summer of 2002 were part of
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the same course of conduct as his offense of conviction. Thus, the district court did
not clearly err by applying the § 2D1.1(b)(1) enhancement for a firearm possessed
during drug trafficking that occurred prior to Savage’s offense of conviction because
the prior trafficking was properly considered relevant conduct under § 1B1.3(a)(2).
Cf. United States v. Anderson, 243 F.3d 478, 485 (8th Cir. 2001) (holding that drug
quantities involved in events that occurred several years before the offense of
conviction were relevant conduct).
Savage also argues that the district court erred in applying the § 2D1.1(b)(1)
enhancement because there was no evidence directly connecting the firearm to his
drug trafficking, and the only evidence that he handled the firearm related to a
domestic dispute instead of a drug transaction. We disagree because the Government
need not show that a defendant used or even touched a weapon to prove a connection
between the weapon and the offense. United States v. Fladten, 230 F.3d 1083, 1086
(8th Cir. 2000). Even if Savage brandished the firearm during a domestic dispute
with Charles rather than during a drug transaction, the district court heard ample
evidence that the firearm was readily accessible during his drug dealing activities.
The firearm was not locked in a cabinet or otherwise stored away, but instead was
readily accessible in the bedroom of his small apartment where Savage was observed
using a scale to weigh methamphetamine and where he was observed selling
methamphetamine to others. The district court properly focused on the fact that the
firearm was readily accessible to him in the small apartment and would be available
to him in the event of a dispute during the course of a drug transaction. This
accessibility was proven by Savage’s ability to access and use the firearm during his
domestic dispute with Charles. Under those circumstances, we hold that the district
court did not clearly err in finding that it was not clearly improbable that the firearm
was connected with Savage’s drug trafficking. Cf. United States v. Betz, 82 F.3d 205,
210-11 (8th Cir. 1996) (holding that the district court did not clearly err in applying
a §2D1.1(b)(1) enhancement because guns were “found on premises from which Betz
conducted drug-related activities where they were readily accessible to Betz”). Thus,
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we affirm the district court’s application of a two-level enhancement under §
2D1.1(b)(1) to Savage’s offense level.
Second, in a supplemental brief Savage challenges the mandatory application
of the sentencing guidelines under United States v. Booker. Because Savage failed
to argue Apprendi or Blakely error or that the guidelines were unconstitutional before
the district court, we review for plain error. United States v. Pirani, 406 F.3d 543,
549 (8th Cir. 2005) (en banc).
To establish plain error under Pirani, Savage bears the burden of demonstrating
“a reasonable probability that he would have received a more favorable sentence with
the Booker error eliminated by making the Guidelines advisory.” Id. at 551. Savage
fails to meet this burden because there is no indication in the record that, given
broader discretion, the district court would have imposed a different sentence. See,
e.g., United States v. Light, 406 F.3d 995, 1000 (8th Cir. 2005). Therefore, the
district court did not commit reversible plain error in sentencing Savage under
mandatory guidelines.
C. CONCLUSION
For the reasons set forth above, we affirm.
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