United States v. Robin Wilson Horton , 184 F. App'x 936 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 22, 2006
No. 05-15607 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00086-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBIN WILSON HORTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(June 22, 2006)
Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.
PER CURIAM:
Robin Wilson Horton appeals his sentence following his guilty plea to
distribution and possession with the intent to distribute four ounces of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).
On appeal, Horton argues that the district court incorrectly applied the
relevant conduct standard of U.S.S.G. § 1B1.3(a)(2) in holding him responsible for
between 200 and 350 grams of methamphetamine because the court should only
have considered the offense to which he pleaded guilty.
We review the district court’s drug-quantity determination for clear error.
United States v. Zapata, 139 F.3d 1355, 1357 (11th Cir. 1998).
“The guidelines place certain restrictions on what evidence is relevant for
guideline sentencing purposes.” United States v. Scroggins, 880 F.2d 1204, 1210
n.13 (11th Cir. 1989). Under the guidelines, a defendant’s offense level is
determined on the basis of
all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant; and . . . in the case of a jointly
undertaken criminal activity, all reasonably foreseeable
acts and omissions of others in furtherance of the jointly
undertaken criminal activity.
U.S.S.G. § 1B1.3(a)(1). Furthermore, for offenses “of a character for which
§ 3D1.2(d) would require grouping of multiple counts,” the defendant is
accountable for all acts and omissions described above that were “part of the same
course of conduct or common scheme or plan as the offense of conviction.”
U.S.S.G. § 1B1.3(a)(2). Offenses of a character for which § 3D1.2(d) would
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require grouping include those where the offense level is determined largely on the
basis of the total harm or loss, the quantity of a substance involved, or some other
measure of aggregate harm, including those offenses covered by, inter alia,
§ 2D1.1 (offenses involving drugs). U.S.S.G. § 3D1.2(d).
“Offenses form the same course of conduct ‘if they are sufficiently
connected or related to each other as to warrant the conclusion that they are part of
a single episode, spree, or ongoing series of offenses.’” United States v. Blanc, 146
F.3d 847, 852 (11th Cir. 1998) (quoting U.S.S.G. § 1B1.3, comment. (n.9(B))).
“Similarly, offenses qualify as a common scheme or plan if they are ‘substantially
connected to each other by at least one common factor, such as common victims,
common accomplices, common purpose, or similar modus operandi.’” Id. (quoting
U.S.S.G. § 1B1.3, comment. (n.9(A))). “In determining whether two or more
offenses meet these tests, the sentencing court should consider ‘the degree of
similarity of the offenses, the regularity (repetitions) of the offenses, and the time
interval between the offenses.’” Id. (quoting United States v. Fuentes, 107 F.3d
1515, 1525 (11th Cir. 1997)). “[S]ection 1B1.3 is designed to take account of a
pattern of misconduct that cannot readily be broken into discrete identifiable units
that are meaningful for purposes of sentencing. Thus, when illegal conduct does
exist in discrete, identifiable units apart from the offense of conviction, the
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Guidelines anticipate a separate charge for such conduct.” Id. (internal quotations
and citations omitted).
The sentencing court may consider conduct not contained in the indictment,
including drug quantities for which the defendant was not charged, as relevant
conduct. United States v. Ignacio Munio, 909 F.2d 436, 439 (11th Cir. 1990). We
have held that the testimony by codefendants of a defendant’s involvement in other
drug distributions was sufficient evidence of such drugs being part of the “same
course of conduct or part of a common scheme or plan as the count of conviction”
to properly increase the base offense level pursuant to § 1B1.3. United States v.
Wilson, 884 F.2d 1355, 1357 (11th Cir. 1989).
In this case, the district court did not clearly err in assigning Horton a base
offense level of 28 based on its finding that his relevant conduct included between
200 and 350 grams of methamphetamine because the drug transactions charged in
the indictment were sufficiently connected to be considered part of the same course
of conduct or a common scheme or plan. In addition, at least four ounces from
uncharged drug sales can be attributed to Horton because the circumstances
surrounding the drug sales were similar. Moreover, Horton’s reliance on United
States v. Amedeo, 370 F.3d 1305 (11th Cir. 2004), is misplaced because in that
case, the district court incorrectly considered conduct in sentencing Amedeo that
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was sufficiently distinct from the offense of conviction that it warranted a separate
charge.
On appeal, Horton also argues that the district court erred in imposing a two-
level sentencing enhancement for possession of a firearm during the drug offense
asserting that it was not related to his drug sales, but rather used for protection
from an individual who had threatened him.
We review for clear error the district court’s findings of fact when it
enhances a defendant’s sentence in cases involving U.S.S.G. § 2D1.1(b)(1), and
review the application of the sentencing guidelines de novo. United States v.
Gallo, 195 F.3d 1278, 1280 (11th Cir. 1999).
Section 2D1.1(b)(1) provides a two-level enhancement “[i]f a dangerous
weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). “The
enhancement should be applied 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). Once the government has shown that a firearm was present at the
site of the charged conduct, “the evidentiary burden shifts to the defendant to show
that a connection between the firearm and the offense is clearly improbable.”
United States v. Fields, 408 F.3d 1356, 1358 (11th Cir. 2005), cert. denied, 126
S.Ct. 221( 2005) (quoting United States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995)).
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Horton failed to establish that the connection between the firearm and the
offense was clearly improbable because the firearm was found in an easily
accessible location in the vehicle where he conducted drug sales, and the individual
who threatened him was incarcerated. Accordingly, the district court did not err in
imposing a two-level enhancement for possession of a firearm during the drug
transaction.
Upon review of the record on appeal and consideration of the parties’ briefs,
we find no reversible error.
AFFIRMED.
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