United States v. Kevin Baptiste , 335 F. App'x 15 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 9, 2009
No. 07-15297 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-60350-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN BAPTISTE,
a.k.a. "Kelvin",
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 9, 2009)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Kevin Baptiste (“Baptiste”) appeals his 160-month sentence after pleading
guilty to drug-trafficking offenses. On appeal, he challenges the district court’s
application of a two-level enhancement for possession of a firearm under U.S.S.G.
§ 2D1.1(b)(1) and its failure to award him a minor-role reduction under U.S.S.G.
§ 3B1.2(b). For the reasons set forth below, we affirm.
I.
A federal grand jury returned an indictment against Baptiste and several
codefendants – including his brother, Gary Baptiste (“Gary”) – charging Baptiste
with: conspiracy to possess with intent to distribute 5 kilograms or more of
cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A) (Count 1); and
possession with intent to distribute 500 grams or more of cocaine, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B) (Count 26).
The government prepared a factual statement in support of Baptiste’s
anticipated guilty plea, which provided in pertinent part:
During the time period charged in the indictment, Defendant Kevin
Baptiste assisted his brother and co-defendant Gary Baptiste in the
distribution and possession of cocaine. Defendant Kevin Baptiste
assisted Gary in a number of ways including distributing cocaine,
collecting money for cocaine sales, storing drugs and drug proceeds in
his residence and speaking with a source of supply regarding per
kilogram price negotiations.
In November 2006, Gary traveled to Haiti for a period of several days.
While he was gone, Defendant Kevin Baptiste handled all of the
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cocaine sales and money collections on Gary Baptiste’s behalf. This
included collecting money for co-defendant Luckner Monestine for
cocaine, distributing two kilograms of cocaine to him on November 4,
2006, and contacting the supplier of this cocaine to arrange for a price
reduction when it was determined that a portion of the cocaine was
wet. Kevin Baptiste also distributed cocaine to other persons during
Gary’s absence.
On December 12, 2006, officers executed a search warrant at the
residence of Kevin Baptiste. In Defendant Kevin Baptiste’s bedroom,
officers located $57,505, a Smith and Wesson handgun and a shotgun.
At the plea hearing, Baptiste, through counsel, admitted the facts contained in the
proffer, including the fact that the guns and money were found in his bedroom.
Baptiste thereafter pled guilty to both Counts 1 and 26.
The probation officer prepared a pre-sentence investigation report (“PSI”)
and calculated Baptiste’s applicable guideline range as follows. The probation
officer determined that Baptiste was responsible for at least 50, but less than 150,
kilograms of cocaine, giving him a base offense level of 36. The probation officer
applied a two-level enhancement for possession of a firearm, pursuant to U.S.S.G.
§ 2D1.1(b)(1). She also applied a three-level reduction for acceptance of
responsibility based on a written statement made by Baptiste, which read in part:
I admit that I assisted my brother, Gary Baptiste with the activities of
distributing cocaine. When Gary was out of town, he would have me
distribute the cocaine and collect monies on his behalf. My mom’s
house was used as the location where the cocaine would be picked up
and where monies from drug sales would be collected. I further admit
and acknowledge that I negotiated a price reduction [for] some wet
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cocaine that was previously sold on behalf of my brother, Gary
Baptiste.
In this respect, the PSI reported that Baptiste resided at his mother’s house and that
172.8 grams of cocaine and 17.4 grams of marijuana were discovered there during
the execution of the search warrant. The probation officer also noted that no role
reduction was warranted because, although Gary and several other co-conspirators
were “large quantity narcotics” suppliers or distributors, Baptiste “worked at the
direction of his brother Gary Baptiste as a narcotics supplier.” The probation
officer ultimately determined that Baptiste had a criminal history category of IV
which, when coupled with his total offense level of 35, produced an applicable
guideline range of 235 to 293 months’ imprisonment.
Baptiste raised three objections to the PSI. First, he argued, without
explanation, that he was responsible for 5 kilograms or less of cocaine. The
government responded that the evidence at Gary’s trial demonstrated that Gary
participated in telephone calls related to 92.5 kilograms of cocaine and, because
Baptiste acted as Gary’s assistant, he should be held responsible for this drug
quantity as well. Second, Baptiste objected to the firearm enhancement on the
ground that the firearms did not belong to him. The government responded, and
the probation officer agreed, that the enhancement was appropriate because,
regardless of whether the firearms “belonged” to Baptiste, they were discovered
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“in close proximity to several thousand dollars and [were] located within Kevin’s
bedroom and at the residence where the defendants stored the cocaine . . . and
conducted their drug transactions.” Finally, Baptiste argued that he should have
received a minor-role reduction under U.S.S.G. § 3B1.2(b). The government and
the probation officer responded that such a reduction was inappropriate because
Baptiste assisted his brother in the sale and storage of multiple kilograms of
cocaine.
At sentencing, the government clarified that the evidence at Gary’s trial
demonstrated that Gary was directly responsible for 92.5 kilograms of cocaine, but
Baptiste personally handled only 14.625 kilograms of that amount. Although the
government argued that Baptiste should be held accountable for all 92.5 kilograms,
it pointed out that, if the court found Baptiste accountable only for the 14.625
kilograms, then this would undermine his minor-role objection because the court
had to measure Baptiste’s role against the conduct for which he was held
accountable. In addressing the drug quantity issue, defense counsel acknowledged
that Baptiste handled cocaine distribution for Gary while he was out of town, but
he emphasized that Baptiste could not do anything without first calling Gary and
getting his permission. With respect to the firearm enhancement, defense counsel
reiterated that the firearms did not belong to Baptiste, and he also asserted that the
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firearms were found in a guest room, not Baptiste’s bedroom, to which the
government responded by pointing to the factual proffer supporting the guilty plea.
The court ultimately sustained Baptiste’s drug-quantity objection in part,
finding that he was accountable only for the 14.625 kilograms of cocaine with
which he was directly involved, thereby reducing his base offense level from 36 to
32. The court, however, upheld the firearm enhancement, finding that “the two
firearms were found in the defendant’s bedroom where the defendant stored both
cocaine and drug proceeds.” In addition, the court found that Baptiste failed to
meet his burden with respect to a minor-role reduction. In light of the above
rulings, the court determined that Baptiste had an applicable guideline range of 151
to 188 months’ imprisonment and, after hearing argument from the parties,
sentenced Baptiste to 160 months’ imprisonment on both counts, to run
concurrently.
II.
“The Court reviews the district court’s findings of fact for clear error and its
application of the sentencing guidelines to those facts de novo.” United States v.
Anton, 546 F.3d 1355, 1359 (11th Cir. 2008), cert. denied, (U.S. Apr. 20, 2009)
(No. 08-1183). “For sentencing purposes, possession of a firearm involves a
factual finding, which we review for clear error.” United States v. Stallings, 463
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F.3d 1218, 1220 (11th Cir. 2006). We also review for clear error the district
court’s determination of a defendant’s role in an offense. United States v.
DeVaron, 175 F.3d 930, 937-38 (11th Cir. 1999) (en banc).
A. Firearm Enhancement
The Sentencing Guidelines provide for a two-level enhancement to a
defendant’s offense level “[i]f a dangerous weapon (including a firearm) was
possessed” during a drug-trafficking offense. U.S.S.G. § 2D1.1(b)(1). The
Guidelines instruct the district court to apply this enhancement “if the weapon was
present, unless it is clearly improbable that the weapon was connected with the
offense.” U.S.S.G. § 2D1.1, comment. (n.3). As a result, we have held that the
government has the initial burden to show by a preponderance of the evidence that
the firearm was present at the site of the charged conduct. United States v. Hall, 46
F.3d 62, 63-64 (11th Cir. 1995) (concluding that “presence of the weapon is all the
Government need show”). “If the government is successful in meeting this initial
burden, then the evidentiary burden shifts to the defendant, who must demonstrate
that a connection between the weapon and the offense was clearly improbable.”
Stallings, 463 F.3d at 1220 (quotation omitted).
In this case, the government met its burden to show that the firearms were
present at the site of the charged conduct. This is so because the firearms were
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found in the same house where Baptiste engaged in acts in furtherance of the
drug-trafficking conspiracy. See United States v. Cooper, 111 F.3d 845, 847 (11th
Cir. 1997) (stating that firearms are “present” for purposes of § 2D1.1(b)(1) when
they are “found where acts in furtherance of the conspiracy [take] place”); United
States v. Hansley, 54 F.3d 709, 716 (11th Cir. 1995) (upholding the enhancement
where the firearm was discovered in a house where the defendant “engaged in
conspiratorial conversations”). Thus, Baptiste’s assertion that the firearms did not
belong to him is irrelevant to the analysis, and, in any event, it is undermined by
his admission at the plea hearing that the firearms were found in his bedroom.
Thus, the burden shifts to Baptiste to demonstrate that a connection between
the firearms and the conspiracy was clearly improbable. Stallings, 463 F.3d
at 1220. He has failed to meet this burden because the factual proffer upon which
his guilty plea was based established that the two firearms were found alongside
$57,505 in cash and in the house out of which the drug conspiracy operated.
Under the circumstances, the fact that there were no drugs found in the bedroom
does not establish that a connection between the firearms and the drug conspiracy
was clearly improbable. Indeed, the PSI reported that 172.8 grams of cocaine were
found elsewhere in the house, and Baptiste does not dispute that the cash in his
bedroom represented drug proceeds. Accordingly, we affirm the enhancement.
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B. Minor-Role Reduction
Under the Guidelines, a defendant may receive a two- to four-level reduction
where his role in the offense can be described as minor, minimal, or somewhere in
between.1 U.S.S.G. § 3B1.2. The proponent of the downward adjustment bears
the burden of establishing his role in the offense by a preponderance of the
evidence. DeVaron, 175 F.3d at 934, 939, 946.
“[T]he district court must assess whether the defendant is a minor or
minimal participant in relation to the relevant conduct attributed to the defendant in
calculating [his] base offense level.” Id. at 941; accord United States v. Ryan, 289
F.3d 1339, 1349 (11th Cir. 2002) (measuring the defendant’s role in relation to the
conduct used to calculate his base offense level). “Otherwise, a defendant could
argue that [his] relevant conduct was narrow for the purpose of calculating [his]
base offense level, but was broad for determining [his] role in the offense. A
defendant cannot have it both ways.” DeVaron, 175 F.3d at 941. In other words,
“[o]nly if the defendant can establish that [he] played a relatively minor role in the
conduct for which [he] has already been held accountable – not a minor role in any
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A minor participant is entitled to a two-level reduction and is someone who is “less
culpable than most other participants, but whose role could not be described as minimal.” U.S.S.G.
§ 3B1.2(b), comment. (n.5). A minimal participant is entitled to a four-level reduction and is
someone who is “plainly among the least culpable of those involved in the conduct of a group.”
U.S.S.G § 3B1.2(a), comment. (n.4). Defendants who are more than a minimal participant but less
than a minor participant qualify for a three-level reduction. U.S.S.G. § 3B1.2.
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larger criminal conspiracy – should the district court grant a downward adjustment
for minor role in the offense.” Id. at 944.
In this case, the district court held Baptiste accountable for 14.625 kilograms
of cocaine at sentencing. Significantly, this drug quantity represented the amount
of cocaine with which Baptiste was directly involved, and it did not include the all
of the 92.5 kilograms of cocaine attributed to his brother Gary or the cocaine
attributed to other members of the conspiracy. This fact is fatal to Baptiste’s
argument because he cannot show that he was a minor participant with respect to
the drug-trafficking activities with which he was directly and personally involved.
See United States v. Boyd, 291 F.3d 1274, 1276-78 (11th Cir. 2002) (upholding
the district court’s determination that “it would be a rare case indeed to find a
defendant to be a minor participant in his own conduct if that’s the only conduct he
is being held accountable for”). In this respect, Baptiste admittedly distributed
cocaine, collected money for cocaine sales, stored drugs and drug proceeds, and
negotiated prices with suppliers. Moreover, Baptiste was held accountable for
nearly 15 kilograms of cocaine, a fairly substantial amount, which also counsels
against awarding him a minor-role reduction. See DeVaron, 175 F.3d at 943
(noting that the amount of drugs at issue is a material, and sometimes dispositive,
factor in assessing the defendant’s role).
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Baptiste counters that he was a minor participant as compared to Gary and
the other members of the conspiracy. With respect to Gary, defense counsel
emphasized at sentencing that Baptiste took no action without first getting approval
from Gary. However, this point highlights the undisputed fact that Baptiste
personally handled all of the cocaine transactions while Gary was out of town. In
light of Baptiste’s direct involvement – and even if he was arguably less culpable
than Gary in relation to this relevant conduct – it cannot be said that Baptiste was a
minor participant. See id. at 944 (“The fact that a defendant’s role may be less
than that of other participants engaged in the relevant conduct may not be
dispositive of role in the offense, since it is possible that none are minor or
minimal participants.”).
With respect to the other co-conspirators, the PSI indicates that several were
“large quantity narcotics” suppliers or distributors, but there is nothing in the
record establishing that these individuals were involved in the relevant conduct for
which Baptiste was held accountable. See id. (“[T]he district court may consider
only those participants who were involved in the relevant conduct attributed to the
defendant.”). Thus, Baptiste has not shown that the court clearly erred by refusing
to award him a minor-role reduction.
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III.
In sum, we conclude that the district court did not clearly err by applying the
two-level firearm enhancement or declining to award Baptiste a minor-role
reduction. Accordingly, we affirm.
AFFIRMED.
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