United States v. Thomas John Wunder ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2336
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Thomas John Wunder, *
*
Defendant - Appellant. *
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Submitted: December 15, 2004
Filed: July 25, 2005
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Before BYE, HANSEN, and GRUENDER, Circuit Judges.
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BYE, Circuit Judge.
Thomas John Wunder appeals the district court's1 imposition of a four-level
sentencing enhancement for possession of a firearm "in connection with another
felony offense" under United States Sentencing Guidelines § 2K2.1(b)(5). We affirm.
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
I
On April 23, 2003, police went to Melissa Behr's home to arrest Wunder for
a probation violation. When they arrived, police discovered Wunder and Kevin
Bourland in the garage. Also in the garage, police discovered an unloaded and cased
shotgun belonging to Wunder resting near a desk containing several items used in the
manufacture of methamphetamine.
Wunder was indicted for possession of a firearm by a drug user in violation of
18 U.S.C. § 922(g)(3). He entered into a plea agreement admitting he was a daily
drug user at the time of his arrest and he knowingly possessed the shotgun which he
purchased in 2002. Wunder and the government stipulated to a base offense level of
twenty-four and a three-level downward adjustment for acceptance of responsibility,
resulting in an adjusted offense level of twenty-one. The parties agreed no further
upward or downward adjustments were appropriate. The presentence investigation
report (PSR), however, recommended a four-level increase for possession of a firearm
in connection with another felony offense (manufacture of methamphetamine) under
§ 2K2.1(b)(5).
Wunder objected to the four-level increase arguing the information in the PSR
was incomplete. He confirmed the shotgun was found in the garage near items used
in the manufacture of methamphetamine and that he obtained it in 2002 from Robert
Wolf. He claimed, however, to have immediately resold the shotgun to Bourland.
According to Wunder, Bourland possessed the shotgun until April 22, 2003, when he
brought it to Behr's residence, along with several other items, as part of a vehicle
trade. Wunder argued the shotgun was unrelated to his use or production of
methamphetamine, and its proximity to the drug paraphernalia found in the garage
was insufficient to justify the enhancement.
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At sentencing, Wunder called Behr to testify about the vehicle trade and the
shotgun. Behr testified Wunder made arrangements with Bourland to trade her
vehicle for Bourland's vehicle plus some additional items of Bourland's personal
property, including the shotgun. Behr testified the trade was to have taken place the
day Wunder and Bourland were arrested and she never saw the shotgun before then.
Based on Behr's testimony, Wunder argued the enhancement was not factually
supported.
The district court rejected Behr's testimony as incredible because she was
unable to identify the friends who put the car trade together and could not recite any
specifics of the trade, e.g., items to be taken in trade, the relative values of the cars,
etc. Further, the court found there was no evidence to indicate Behr had occasion to
notice whether the shotgun was in the garage prior to April 23, 2003. Conversely, the
court found the uncontested offense conduct set forth in the PSR sufficient to support
the enhancement. The report stated Wunder bought the shotgun in 2002, and it was
found in the garage next to several items used in the manufacture of
methamphetamine. Additionally, Behr told law enforcement Wunder had
manufactured methamphetamine five to ten times in her garage, and Wunder admitted
using, manufacturing and distributing methamphetamine. The district court also
reviewed photographs of the garage showing the shotgun's location next to the desk
containing the drug-related items.
Based on this evidence, the district court concluded the shotgun's presence was
not the result of a mistake or coincidence but was used to facilitate or had the
potential of facilitating the drug trafficking offense. Accordingly, the district court
added four-levels to arrive at an adjusted offense level of twenty-five, with a
sentencing range of 84 to 105 months. The court denied the government's motion for
an upward departure based on understated criminal history and sentenced Wunder to
105 months incarceration.
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On appeal, Wunder argues the district court's imposition of the four-level
enhancement was factually unsupported and the district court erred when it relied on
disputed factual information contained in the PSR. Wunder also argues the sentence
violates Blakely v. Washington, 542 U.S. 296 (2004).
II
We review the district court's application of the guidelines de novo and its
findings of fact for clear error. United States v. Mathijssen, 406 F.3d 496, 498 (8th
Cir. 2005). A district court's finding with respect to a defendant's purpose for
possessing a firearm is a fact finding subject to clear error review. United States v.
Mack, 343 F.3d 929, 936 (8th Cir. 2003).
Section 2K2.1(b)(5) states "[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony offense . . . increase by 4 levels." "In
connection with" equates to the "in relation to" language found in 18 U.S.C.
§ 924(c)(1). United States v. Regans, 125 F.3d 685, 686 (8th Cir. 1997) (equating
§ 2K2.1(b)(5)'s reference to "in connection with" to the "in relation to" language of
18 U.S.C. § 924(c)(1)). In Smith v. United States, 508 U.S. 223, 238 (1993), the
Supreme Court held
[t]he phrase "in relation to" thus, at minimum, clarifies that the firearm
must have some purpose or effect with respect to the drug trafficking
crime; its presence or involvement cannot be the result of accident or
coincidence . . . . Instead, the gun at least must "facilitat[e], or ha[ve]
the potential of facilitating," the drug trafficking offense.
Our cases further hold "[t]he enhancement must be imposed unless it is clearly
improbable that [the defendant] possessed the firearm in connection with another
felony offense." United States v. Agee, 333 F.3d 864, 866 (8th Cir. 2003) (citing
United States v. Linson, 276 F.3d 1017, 1018 (8th Cir. 2002)).
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Wunder stipulated he purchased the shotgun in 2002, he knowingly possessed
it at the time of his arrest, and it was discovered in his garage in close proximity to
several items used in the manufacture of methamphetamine. Wunder also admitted
he was a regular user of methamphetamine, had distributed methamphetamine, and
had manufactured methamphetamine in the garage. Behr confirmed Wunder had used
her garage on five to ten occasions to manufacture methamphetamine. Similarly, the
photographs confirmed the shotgun's close proximity to the drug-related items when
it was discovered. After reviewing this undisputed evidence, the district court
concluded
What is, I think, of evidentiary value is the offense conduct in the
Presentence Report that is – has not been contested by the Defendant.
The first is that this weapon was transferred from a felon named Robert
Wolf to the Defendant. Defendant was identified in a six-photograph
show as the person to whom Wolf sold the gun, and that was in the fall
of 2002. It ends up in a garage within reaching distance of where
methamphetamine was manufactured a number of times, and in which
methamphetamine materials to make methamphetamine were found
stored in a drawer. And that happened on April 23rd, 2003.
Sent. Tr. at 27.
Wunder, however, contends the shotgun was present in the garage by
coincidence and had no connection to his use, distribution and manufacture of
methamphetamine. He contends after buying the shotgun in 2002, he immediately
resold it to Bourland and did not see it again until Bourland brought it to the garage
as part of the vehicle trade. Wunder argues this explanation creates a factual dispute
making the district court's application of the enhancement improper. We disagree.
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It is well-established
Once a defendant objects to the presentence report, the court must either
make a finding as to whether the disputed fact exists or state that it will
not take the disputed fact into account. If the sentencing court chooses
to make a finding with respect to the disputed facts, it must do so on the
basis of evidence, and not the presentence report.
United States v. Burke, 80 F.3d 314, 316 (8th Cir. 1996) (quoting United States v.
Greene, 41 F.3d 383, 386 (8th Cir. 1994)) (emphasis in original).
We conclude, however, the undisputed facts relied on by the district court are
sufficient to support the enhancement. Thus, Wunder's claim of error involves
whether the district court properly rejected his explanation for the shotgun's presence.
Wunder presented Behr's testimony to show the shotgun was in the garage by
coincidence but the district court found her testimony incredible.
The Court finds the witness Melissa Behr to be incredible. She didn't
have any idea about this car trade, what the dollar figures were, what
was going to happen, what was going to be taken in trade; wouldn't say
who the friends were that put the trade together. There's no evidence
that she was out in her garage and would have had the occasion to see
the gun. I just find her to be a witness that doesn't have much to offer
in this case.
Sent. Tr. at 27.
A district court's credibility determinations are virtually unreviewable on
appeal. United States v. Martin, 28 F.3d 742, 745-46 (8th Cir. 1994) (citation
omitted). In this instance, we find no reason to question the district court's credibility
determination. Accordingly, we conclude the district court's imposition of the
enhancement was not clearly erroneous.
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III
Next, Wunder argues the district court violated his Sixth Amendment rights
under Blakely, a claim governed by the Supreme Court's decision in United States v.
Booker, 125 S. Ct. 738 (2005). Under Booker, we consider whether Wunder's
sentence, imposed under a mandatory sentencing scheme, is erroneous. See United
States v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc). Because Wunder first raised
Blakely in proceedings before this court we review his sentence for plain error.
Pirani, 406 F.3d at 549.
Plain error review is governed by the four-part test of United States v. Olano,
507 U.S. 725, 732-36 (1993):
before an appellate court can correct an error not raised at trial, there
must be (1) error, (2) that is plain, and (3) that affects substantial rights.
If all three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.
Pirani, 406 F.3d at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67
(1997)).
The first two Olano factors are satisfied here – the district court erred by
applying the guidelines as mandatory and the error is plain. Id. As for the third
factor, Wunder must show a "reasonable probability that he would have received a
more favorable sentence with the Booker error eliminated by making the Guidelines
advisory." Id. at 551-52. We have reviewed the record on appeal and conclude there
is nothing to indicate a reasonable probability Wunder would have received a more
favorable sentence but for the Booker error.
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IV
The judgment of the district court is affirmed.
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