United States v. David Houdek

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3566
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
David Houdek, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 13, 2010
Filed: November 22, 2010
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Before RILEY, Chief Judge, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
David Houdek pleaded guilty to unlawful possession of a firearm as an
unlawful user of a controlled substance, in violation of 18 U.S.C. §§ 922(g)(3) and
924(a)(2), and possession of methamphetamine after having been previously
convicted of two or more drug offenses, in violation of 21 U.S.C. §§ 844(a) and 851.
At sentencing, the district court1 calculated Houdek’s advisory guideline sentencing
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
range as 30 to 37 months’ imprisonment, and sentenced him to 37 months. Houdek
appeals his sentence, and we affirm.
On March 27, 2007, law enforcement officers stopped the vehicle that Houdek
was driving and took Houdek into custody for failing to appear for a hearing on a theft
charge. During a search of Houdek incident to the arrest, officers discovered drug
paraphernalia and a baggie containing .31 grams of methamphetamine. Officers
stopped Houdek again on April 17, 2007, because of an active warrant for his arrest.
Houdek admitted that he had methamphetamine in his possession, and a search
incident to arrest uncovered 3.32 grams of methamphetamine.
After the April 17 traffic stop, officers executed a search warrant at Houdek’s
residence, and discovered drug residue, drug paraphernalia, ammunition, and three
long guns. In one downstairs room, officers found a baggie with residue and a long
metal spoon on a coffee table. Officers also located one of the guns, a loaded .410
gauge shotgun, on top of a cabinet near the coffee table.
At sentencing, the parties disputed how the guidelines should apply to
Houdek’s possession of a firearm. Houdek argued the offense level should be
decreased to level six, pursuant to USSG § 2K2.1(b)(2), because he possessed the
loaded shotgun solely for lawful sporting purposes. Houdek asserted that he
possessed the shotgun in the downstairs room so that he could hunt and kill a
woodchuck that had been destroying his property. The district court rejected
Houdek’s explanation as incredible, and imposed a four-level increase pursuant to
USSG § 2K2.1(b)(6), because it concluded that he possessed the loaded shotgun in
connection with his felony drug possession offense.
Houdek argues that the district court committed procedural error by increasing
his offense level pursuant to § 2K2.1(b)(6), and by failing to apply the decrease for
lawful sporting purposes under § 2K2.1(b)(2). The two provisions are mutually
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exclusive because a firearm cannot be possessed solely for lawful sporting purposes
if it was also possessed in connection with another felony offense. See United States
v. Quinn, 358 F.3d 559, 560 (8th Cir. 2004) (per curiam). Therefore, if the district
court did not err in applying the specific offense characteristic under § 2K2.1(b)(6),
the court properly rejected application of the sporting-purposes provision of
§ 2K2.1(b)(2).
We review for clear error the district court’s finding that Houdek possessed the
shotgun in connection with his possession of methamphetamine. See United States
v. Smith, 535 F.3d 883, 885 (8th Cir. 2008). The specific offense characteristic under
§ 2K2.1(b)(6) applies where the underlying felony offense is drug trafficking and a
firearm is found in close proximity to drugs, “because the presence of the firearm has
the potential of facilitating another felony offense.” USSG § 2K2.1 cmt. n.14(B).
When the underlying offense is simple possession of a user quantity of drugs,
however, the district court must “make a specific finding whether the firearm
facilitated, or had the potential to facilitate, [the defendant’s] drug possession.”
United States v. Mansfield, 560 F.3d 885, 888 (8th Cir. 2009); see USSG § 2K2.1 cmt.
n.14(A). The requirement that the firearm be possessed “in connection with” the
underlying drug offense means “at a minimum, the firearm had a purpose or effect
with respect to the other felony offense because its presence facilitated or had the
potential to facilitate the offense, as opposed to being the result of mere accident or
coincidence.” Smith, 535 F.3d at 885 (internal quotation omitted).
The district court made the required factual finding at sentencing. The court
concluded that the government met its burden of proving that Houdek possessed the
loaded shotgun in connection with his drug possession, because the “[l]ocation of it
and the fact that as set forth in the Mansfield case, when the Court looks at whether
or not the firearm had a purpose or effect with respect to the other felony offense, the
Court finds that it did and that the firearm was not there as a result of mere accident
or coincidence.”
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This finding was not clearly erroneous. This case involves more than the mere
presence of firearms in a home where drug residue was also found. Here, Houdek’s
loaded shotgun was located on a cabinet in the room where law enforcement officers
found drug paraphernalia and a baggie with residue. Houdek admitted that he kept
and used drugs in the room where the loaded firearm was found, and that he used
drugs in the house a day before the search. The court permissibly rejected as not
credible Houdek’s alternative explanation that the gun was kept in the room for
hunting a woodchuck. On this record, the district court did not clearly err in
concluding that Houdek’s possession of a loaded shotgun on a cabinet near where he
used and stored drugs facilitated, or had the potential to facilitate, his possession of
methamphetamine.
Houdek also challenges the reasonableness of his sentence. We review the
district court’s imposition of a sentence under a deferential abuse of discretion
standard. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).
We presume that a sentence within the advisory guideline range is reasonable. United
States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009); see Rita v. United States,
551 U.S. 338, 347 (2007).
Houdek contends that the district court erred in refusing to grant a downward
variance based on the factors contained in 18 U.S.C. § 3553(a), including the
circumstances of his offense and his own history and characteristics. He asserts that
he has a sporadic habit of minor drug use, but that he has stopped using drugs and now
maintains constant employment. Houdek characterizes his offense as simply being
a “drug-using hunter.”
District courts have wide discretion in weighing the factors set forth in
§ 3553(a). See Ruelas-Mendez, 556 F.3d at 657. The district court here considered
the § 3553(a) factors, and determined that a sentence of 37 months’ imprisonment was
sufficient but not greater than necessary. The court expressly noted that it had
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considered the circumstances of the offense and Houdek’s history and characteristics,
including the fact that he went to drug treatment. But the court concluded that other
aspects of the case, including Houdek’s criminal history and Houdek’s untruthfulness
about his pretrial use of methamphetamine, counseled against a downward variance.
We are satisfied that the district court’s choice of a sentence within the advisory
guideline range was not an abuse of discretion and was the result of a permissible
weighing of the § 3553(a) factors.
The judgment of the district court is affirmed.
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