United States v. Vincent Swain ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2432
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Vincent B. Swain, * [UNPUBLISHED]
*
Appellant. *
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Submitted: January 6, 2000
Filed: January 19, 2000
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Before BOWMAN, FAGG, and MURPHY, Circuit Judges.
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PER CURIAM.
Vincent B. Swain pleaded guilty to conspiring to possess cocaine with intent to
deliver, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The presentence report (PSR)
recommended Swain's base offense level be enhanced by two levels because he
possessed a firearm in connection with the offense. See U.S. Sentencing Guidelines
Manual § 2D1.1(b)(1) (1998). Specifically, the police had recovered a loaded .38-
caliber semi-automatic pistol from underneath co-defendant Willetta Jones's mattress,
and Jones had advised the police it belonged to Swain. Swain objected to the PSR's
recommendation, denying ownership or possession of the gun, attributing ownership
to Jones, and denying any relationship between the gun and the conspiracy.
At sentencing, the only evidence presented was Swain's testimony, and he again
denied ownership of the gun and testified it belonged to Jones. After hearing Swain's
testimony, the district court stated, "I am adopting [the PSR's] factual findings including
the factual findings that this gun was possessed in connection with this offense." The
court continued, "We also have evidence that this gun belongs to the defendant and I
do not believe the defendant's testimony that he gave here today that . . . this gun was
not his." The court applied the firearm enhancement and sentenced Swain to 156
months imprisonment and five years supervised release.
On appeal, Swain contends the district court committed error by applying the
firearm enhancement. We agree. The district court expressly relied on the disputed
factual portions of the PSR despite Swain's objections, and applied the firearm
enhancement without any evidence in the sentencing record to establish the gun
belonged to Swain. See United States v. Ortega, 150 F.3d 937, 946 (8th Cir. 1998) (if
defendant objects to factual portions of PSR, district court must base its findings on
evidence rather than on disputed PSR information), cert. denied, 119 S. Ct. 837 (1999).
In this situation, we must reverse. See United States v. Hudson, 129 F.3d 994, 995
(8th Cir. 1997) (per curiam) (PSR is not evidence; clear error for district court to rely
on disputed factual portions of PSR).
Swain also challenges the search and seizure of certain evidence; he waived this
challenge, however, by unconditionally pleading guilty. See United States v. McNeely,
20 F.3d 886, 888 (8th Cir.) (per curiam), cert. denied, 513 U.S. 860 (1994).
The judgment of the district court is reversed, and the case is remanded for
resentencing.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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