United States v. William Lucas

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0594n.06
No. 12-5502
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 21, 2013
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF KENTUCKY
WILLIAM OSSIE LUCAS )
)
Defendant-Appellant. )
)
)
Before: GIBBONS and WHITE, Circuit Judges; and COHN, Senior District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. In October 2011, William Ossie Lucas pled
guilty to conspiracy to distribute oxycodone and conspiracy to launder drug proceeds. The district
court sentenced Lucas to 135 months’ imprisonment on each count, to be served concurrently. Lucas
appeals his sentence, arguing that the district court erred when it calculated his U.S. Sentencing
Guidelines range by (1) applying a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) based
on Lucas’s conviction for carrying a concealed deadly weapon during the time period of the drug
conspiracy; and (2) concluding, alternatively, that if the enhancement did not apply, then Lucas’s
conviction, which was later set aside, nonetheless would count toward his criminal history score.
*
The Honorable Avern Cohn, Senior United States District Judge for the Eastern District of
Michigan, sitting by designation.
United States v. Lucas
No. 12-5502
Because the district court properly applied the enhancement pursuant to U.S.S.G. § 2D1.1(b)(1), we
affirm Lucas’s sentence.
I.
From early 2008 to August 2009, Lucas was a party to an agreement to travel from Kentucky
to Florida to obtain oxycodone, which he and his co-conspirator sold in Kentucky. In August 2011,
a grand jury charged Lucas with conspiracy to distribute oxycodone in violation of 21 U.S.C. § 846
(Count One) and conspiracy to launder drug proceeds in violation of 18 U.S.C. § 1956(h) (Count
Two), in addition to several counts of distributing oxycodone, which were dismissed at sentencing.
Lucas pled guilty to Counts One and Two pursuant to a written plea agreement.
The United States Probation Office prepared a presentence investigation report (“PSR”) that
calculated Lucas’s Guidelines range.1 In the course of calculating the offense level for Count One,
conspiracy to distribute oxycodone, the probation office applied a two-level enhancement pursuant
to U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon based on Lucas’s October 2008
arrest for carrying a concealed deadly weapon. It did not assess any criminal history points for this
offense because Lucas possessed the weapon during the drug conspiracy and, thus, it was counted
as a special offense characteristic. Based on a total offense level of 33 and a criminal history
category of I, Lucas’s recommended Guidelines range was 135 to 168 months’ imprisonment.
At Lucas’s sentencing hearing, he objected to the application of the two-level enhancement,
arguing that his possession of a firearm was unrelated to the drug conspiracy. Lucas’s attorney
1
The probation office’s calculations were based on the 2011 Guidelines.
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No. 12-5502
argued that Lucas was working on a house with a friend on the day of his arrest and that Lucas’s wife
had given him the gun to hold for her. However, Lucas’s attorney presented no testimony to this
effect. The only pieces of evidence that he introduced were the state court docket and the police
citation describing the circumstances surrounding Lucas’s arrest. The citation indicated that police
stopped Lucas’s vehicle in Lawrence County on October 24, 2008, because it had expired plates and
excessive window tint. During a pat-down, an officer discovered an unloaded .22-caliber pistol in
Lucas’s pocket.
The district court overruled Lucas’s objection, holding that the government established that
Lucas possessed a weapon during the drug conspiracy. The district court explained that it was
irrelevant that Lucas’s conviction eventually was set aside, because Lucas does not dispute that he
possessed the firearm on that date. The district court acknowledged that while “there is no evidence
that [Lucas] distributed pills” on the day that he possessed the firearm, such evidence is not
necessary. Therefore, the burden shifted to Lucas to demonstrate that it was “clearly improbable”
that the firearm was connected to the conspiracy. The district court held that Lucas did not meet this
burden. It observed that Lucas presented no testimony that his wife had given him the firearm. Even
if this were true, the district court said, it would not demonstrate that the firearm was not connected
to the drug conspiracy. The district court cited the PSR, which stated that Lucas’s wife traveled to
Ohio to obtain oxycodone for distribution and that Lucas used the proceeds of those sales to finance
additional trips to Florida and Ohio to obtain drugs. Lucas did not object to this portion of the PSR.
Thus, the district court concluded that Lucas’s wife was implicated in the drug conspiracy.
Additionally, the district court observed that, according to the PSR, Lucas had been unemployed
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No. 12-5502
since suffering an injury in 2006, calling into question the veracity of Lucas’s attorney’s explanation.
The district court noted that even if Lucas were working on a house on the day of his arrest, “[m]any
defendants have legitimate and illegitimate incomes.” The district court found that Lucas’s
purported reasons for possessing the firearm were “simply not credible” and, thus, it was proper to
apply the enhancement.
Lucas also objected to the probation office’s failure to recognize that his conviction for
carrying a concealed deadly weapon was set aside in January 2012 after his attorney contacted the
state prosecutor. He argued that the conviction should not count toward his criminal history.
Because the district court did not assess criminal history points based on Lucas’s conviction, it
denied this objection as moot. It observed, however, that if it had not applied the two-level
enhancement, it would have counted the conviction toward Lucas’s criminal history, which would
have resulted in the same Guidelines range.
The district court sentenced Lucas to 135 months’ imprisonment on each count, to be served
concurrently.
II.
We review criminal sentences for substantive and procedural reasonableness under a
deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). In order to
determine whether a sentence is procedurally reasonable, we consider several factors, including
“whether the district court properly calculated the Guidelines range.” United States v. Battaglia, 624
F.3d 348, 350-51 (6th Cir. 2010).
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No. 12-5502
When reviewing the district court’s calculation of a Guidelines range, we “review the district
court’s factual findings for clear error and its legal conclusions de novo.” United States v. Bolds, 511
F.3d 569, 579 (6th Cir. 2007). “A district court’s determination that the defendant possessed a
firearm during a drug offense is a factual finding that this court reviews under the clearly erroneous
standard.” United States v. Wheaton, 517 F.3d 350, 367 (6th Cir. 2008). “A finding of fact is clearly
erroneous ‘when, although there may be some evidence to support the finding, the reviewing court
on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.’” Id. (quoting United States v. Darwich, 337 F.3d 645, 664 (6th Cir. 2003)).
Lucas argues that the district court erred by applying a two-level enhancement pursuant to
U.S.S.G. § 2D1.1(b)(1). Section 2D1.1(b)(1) provides that a defendant’s base offense level for a
drug offense must be increased by two levels “[i]f a dangerous weapon (including a firearm) was
possessed.” U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2011). “The enhancement should
be applied if the weapon was present, unless it is clearly improbable that the weapon was connected
with the offense.” Id. at cmt. n.3.
The government bears the burden of showing by a preponderance of the evidence that
the defendant either actually or constructively possessed the weapon. . . . . Once the
government meets its burden of showing that the defendant possessed a weapon, a
presumption arises that the weapon was connected to the offense. The burden then
shifts to the defendant to show that it was clearly improbable that the weapon was
connected with the crime.
Darwich, 337 F.3d at 665 (internal quotation marks and citations omitted).
In 1991, the Guidelines were amended to remove the requirement that the weapon be
possessed during the commission of the offense, thereby broadening the scope and applicability of
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the enhancement. United States v. Faison, 339 F.3d 518, 520 (6th Cir. 2003). After the amendment,
“all that the government need show is that the dangerous weapon [was] possessed during ‘relevant
conduct.’” Id. Relevant conduct includes “‘all acts and omissions . . . that were part of the same
course of conduct or common scheme or plan as the offense of conviction.’” Id. (quoting U.S.S.G.
§ 1B1.3(a)(2)).
Lucas concedes that he possessed a weapon in October 2008 while he was involved in the
drug conspiracy. However, he contends that the government must show more than the fact that he
possessed a weapon during the time period in which he was engaged in illegal conduct in order to
satisfy its initial burden. Lucas is mistaken. We repeatedly have held that the government meets its
initial burden when it shows that the defendant possessed a weapon during the time period of a drug
conspiracy. See, e.g., United States v. Benson, 591 F.3d 491, 504 (6th Cir. 2010); United States v.
Milan, 218 F. App’x 492, 495 (6th Cir. 2007).
Therefore, the burden shifted to Lucas to demonstrate that it was “clearly improbable” that
the firearm he possessed was connected with the drug conspiracy. See Darwich, 337 F.3d at 665.
In order to determine whether the application of a U.S.S.G. § 2D1.1(b)(1) enhancement was proper,
we examine several factors, none of which is dispositive:
(1) the type of firearm involved; (2) the accessibility of the weapon to the defendant;
(3) the presence of ammunition; (4) the proximity of the weapon to illicit drugs,
proceeds, or paraphernalia; (5) the defendant’s evidence concerning the use of the
weapon; and (6) whether the defendant was actually engaged in drug-trafficking,
rather than mere manufacturing or possession.
United States v. Greeno, 679 F.3d 510, 515 (6th Cir. 2012) (quoting United States v. Edmonds, 9 F.
App’x 330, 332 (6th Cir. 2001)).
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The district court did not err when it held that Lucas did not demonstrate that it was “clearly
improbable” that the weapon he possessed was connected to the drug conspiracy. The district court
observed that Lucas possessed a .22-caliber pistol, a firearm commonly used in drug trafficking. See
United States v. Moses, 289 F.3d 847, 851 (6th Cir. 2002) (observing that federal appellate courts
consistently uphold U.S.S.G. § 2D1.1(b)(1) enhancements based on .22-caliber pistols). Even if a
firearm is unloaded, this does not preclude application of the enhancement. United States v. Soto,
85 F. App’x 449, 454 (6th Cir. 2003). The district court also noted that, although there is no
evidence that Lucas distributed drugs on the day that he possessed the firearm, the conspiracy
involved conduct that took place in Lawrence County, where Lucas was arrested.
Lucas’s attorney argued that Lucas was working on a house on the day that he was arrested
and that Lucas’s wife gave him the firearm to hold. However, the attorney offered no evidence to
support these assertions. “A defendant must present evidence, not mere argument, in order to meet
his or her burden.” Greeno, 679 F.3d at 514; see also Wheaton, 517 F.3d at 368 (noting that “[t]he
bare assertion of [defendant’s] counsel” that a weapon may have been present for lawful purposes
is insufficient to sustain defendant’s burden). The only evidence that Lucas’s attorney presented was
the police citation, which did not address why Lucas possessed the firearm and, thus, did nothing to
refute the presumption that the firearm was connected to the drug conspiracy. Moreover, the district
court observed that even if it believed Lucas’s attorney’s version of events, it would not demonstrate
that the weapon was not connected to the drug conspiracy.
If a defendant fails to meet his burden of showing that it was “clearly improbable” that the
weapon was related to the drug conspiracy, “the district court should apply the enhancement.”
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No. 12-5502
United States v. Catalan, 499 F.3d 604, 606-07 (6th Cir. 2007). Lucas did not meet his burden, and,
thus, the district court properly applied the enhancement. Because we hold that the application of
the enhancement was proper, we need not consider Lucas’s argument that the district court erred by
noting, alternatively, that it could have counted Lucas’s conviction toward his criminal history score.
III.
For these reasons, we affirm Lucas’s sentence.
8