United States v. Thomas Ashburn , 865 F.3d 997 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3390
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Thomas D. Ashburn
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 8, 2017
Filed: July 31, 2017
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Before RILEY, BEAM, and SHEPHERD, Circuit Judges.
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RILEY, Circuit Judge.
Thomas Ashburn sold methamphetamine to a confidential informant. About
a week later, police searched the room where Ashburn was staying—which was
where the prior sale had taken place—and found drugs, equipment for measuring and
packaging drugs, and ledgers recording drug transactions. Officers also found three
knives: a knife for filleting fish, a “decorative knife,” and a “World War II U.S. Navy
knife.” All three had blades about seven inches long.
Ashburn pled guilty to conspiring to distribute methamphetamine. See
21 U.S.C. §§ 841(a)(1), 846. In the course of determining Ashburn’s recommended
sentence under the advisory United States Sentencing Guidelines (Guidelines or
U.S.S.G.), the district court1 increased Ashburn’s offense level by two levels for
possessing dangerous weapons, namely the knives. See U.S.S.G. § 2D1.1(b)(1). The
Guidelines recommended a sentence of 188 to 235 months in prison. Without the
dangerous-weapon enhancement, the range would have been 151 to 188 months. See
id. ch. 5, pt. A. As it was, the district court granted “a modest variance from the low
end of the guideline range” and sentenced Ashburn to 172 months.
Several times during sentencing, the district court expressed a “belie[f]” that
to avoid application of the enhancement, Ashburn “ha[d] the burden of demonstrating
that it is clearly improbable that the knives were used in connection with the drug-
dealing offense.” That was wrong. See United States v. Peroceski, 520 F.3d 886, 889
(8th Cir. 2008) (“The burden is always on the government to prove that a defendant
is subject to a sentencing enhancement.”). Although Ashburn resisted the offense-
level increase and argued the knives had nothing to do with the drugs, he did not
object to the district court’s allocation of the burden of proof. Generally, we do not
correct errors not raised in the district court, even errors as “‘plain’” as this, unless
the aggrieved party establishes that the error “‘affect[s] substantial rights.’” United
States v. Olano, 507 U.S. 725, 732 (1993) (alteration in original) (quoting Fed. R.
Crim. P. 52(b)). The benefit of that principle can itself be forfeited through a failure
to invoke it, see, e.g., United States v. Albin, 297 F. App’x 551, 552 (8th Cir. 2008)
(per curiam), and the government does not raise and argue that principle here.
1
The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
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Instead, the government assumes an unnecessary burden and argues the district
court’s error should be disregarded because it was harmless. See Fed. R. Crim. P.
52(a); see also United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc)
(“The defendant has the burden of proving plain error, whereas the government has
the burden of proving harmless error.”). For an error to be harmless, it must not have
substantially influenced the outcome of the proceeding. See, e.g., United States v.
Haidley, 400 F.3d 642, 645 (8th Cir. 2005). Our precedent makes clear that the
harmlessness of an error like the one in this case—a district court mistakenly
requiring a defendant to prove he was not subject to a dangerous-weapon
enhancement—can be demonstrated by the weight of the evidence supporting the
enhancement. See United States v. Lucht, 18 F.3d 541, 555 (8th Cir. 1994).
Ashburn emphasizes that the government did not present any evidence
affirmatively showing him using the knives in connection with his drug-dealing or
conspiring. Such evidence was unnecessary. To justify the dangerous-weapon
enhancement, the government only needed to prove “it was not clearly improbable
that the weapon[s] w[ere] connected to the drug offense.”2 United States v.
Anderson, 618 F.3d 873, 880 (8th Cir. 2010); see also U.S.S.G. § 2D1.1 cmt. n.11(A).
That is “a very low bar,” as we have repeatedly explained, and “‘[e]vidence that the
weapon was found in the same location as drugs or drug paraphernalia usually
suffices.’” Anderson, 618 F.3d at 881-82 (alteration in original) (quoting United
States v. Fladten, 230 F.3d 1083, 1086 (8th Cir. 2000) (per curiam)); see also id. at
881 (collecting cases). Here, not only were all three knives in the same room as the
drugs, two of them were found on top of the dresser under which the drugs were
hidden.
2
Ashburn offers a less wordy formulation—“the government must establish that
these 3 knives . . . were probably connected to the drug charge” (some emphasis
omitted)—but we have treated the difference between “not clearly improbable” and
“probable” as meaningful in this context, and we have settled on “not clearly
improbable” as the proper standard. Peroceski, 520 F.3d at 887-88.
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Ashburn’s testimony at the sentencing hearing does not make the district
court’s error any less harmless. Ashburn did not dispute the knives were in the room
when he conspired and sold methamphetamine. He just claimed he only used them
for preparing fish and cutting pizza, not dealing drugs. Even assuming that use was
true, it would not undermine the district court’s finding that the enhancement applied,
because “the Government need not show that a defendant used or even touched a
weapon to prove a connection between the weapon and the [drug] offense.” United
States v. Savage, 414 F.3d 964, 967 (8th Cir. 2005). To the contrary, it is enough
“that the [weapon] was readily accessible . . . in [a] small apartment and would be
available . . . in the event of a dispute during the course of a drug transaction.” Id.The district court recognized this minimal link was all the Guidelines and our
precedent required, and concluded “it’s simply not improbable that [the knives] were
connected with the [drug] activity,” notwithstanding Ashburn’s denials. Given the
“reduce[d] . . . quantum of proof necessary” for the enhancement to apply, Peroceski,
520 F.3d at 889, and the undisputed evidence of Ashburn having at least two large
knives in the open, within easy reach of his stash of drugs, in the room where he
conducted at least one sale, we have no doubt the district court would have reached
the same decision with a proper application of the burden of proof.3
The district court’s error was therefore harmless and is not subject to correction
on appeal. See Lucht, 18 F.3d at 555. And for much the same reason—in short, the
strength of the evidence relative to the minimal showing required—the district court’s
3
The fact the district court heard directly from Ashburn on this issue also helps
confirm the harmlessness of the error by eliminating the most obvious potential
consequence of the misallocated burden of proof—namely, that the district court
simply reasoned the government won by default because Ashburn failed to put the
applicability of the enhancement in dispute. Nor is there any indication the district
court thought Ashburn’s testimony, weighed against the other evidence, made the
question too close to call, such that the applicability of the enhancement came down
to which side bore the burden of proof.
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ultimate finding that the dangerous-weapon enhancement applied was not clear error.
See, e.g., id. (standard of review for factual determinations). We affirm Ashburn’s
sentence. See 28 U.S.C. § 1291 (appellate jurisdiction).
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