United States v. Rucker , 167 F. App'x 390 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 17, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-50761
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES DENNIS RUCKER,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CR-39-1
_________________________________________________________________
Before JOLLY, SMITH, and GARZA, Circuit Judges.
PER CURIAM:1
Charles Dennis Rucker pleaded guilty to the unlawful
possession of anhydrous ammonia in violation of 21 U.S.C. §
843(a)(6).2 Because of Blakely v. Washington, 542 U.S. 296 (2004),
but over Rucker’s objection, the district court sentenced Rucker to
three alternate sentences: (1) 88 months of imprisonment, 3 years
of supervised release, a fine of $1,000, and a $100 special
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
21 U.S.C. § 843(a)(6) provides that it is “unlawful for any
person knowingly or intentionally . . . to possess any . . .
chemical, product, or material which may be used to manufacture a
controlled substance or listed chemical, knowing, intending, or
having reasonable cause to believe, that it will be used to
manufacture a controlled substance.” 21 U.S.C. § 843(a)(6) (2005).
assessment if the Guidelines remain intact; (2) 10 months of
imprisonment (supervised release, fine and special assessment
remain the same) if the Guidelines were found unconstitutional as
to upward departures and relevant conduct under Blakely v.
Washington; and (3) 7 years of imprisonment (supervised release,
fine and special assessment remain the same) should the Guidelines
be found unconstitutional. Rucker contends on appeal that the
district court erred in two ways: first, by applying the
enhancement of U.S.S.G. § 2D1.1(b)(1), allowing a two-point
increase in the base offense level for possession of a firearm, and
second, in its consideration of the Guidelines as constitutional.
For the reasons stated below we VACATE Rucker’s sentence and REMAND
for resentencing not inconsistent with this opinion.
I
Under U.S.S.G. § 2D1.1(b)(1), a defendant’s offense level is
increased by two levels, “[i]f a dangerous weapon (including a
firearm) was possessed.” The commentary to § 2D1.1(b)(1) states,
“[t]he adjustment should be applied if the weapon was present,
unless it is clearly improbable that the weapon was connected with
the offense. For example, the enhancement would not be applied if
the defendant, arrested at his residence, had an unloaded hunting
rifle in the closet.” U.S.S.G. § 2D1.1(b)(1), comment, n.3. “The
district court’s decision to apply § 2D1.1(b)(1) is essentially a
factual determination reviewable under the clearly erroneous
2
standard.”3 United States v. Rodriguez, 62 F.3d 723, 724 (5th Cir.
1995). If a factual finding is plausible in the light of the
record as a whole, there is no clear error. United States v.
Parker, 133 F.3d 322, 330 (5th Cir. 1998).
Rucker argues that the § 2D1.1(b)(1) enhancement was error as
the weapons4 were in a bedroom separate from the detached garage
where the illegal activity took place. He argues that no evidence
of manufacturing of any drugs was found in the house, and that the
weapons found in the bedroom were “essentially hunting rifles.”
The evidence upon which the district court relied in applying
the enhancement was as follows: First, Lieutenant Medford
testified at sentencing that no drugs were found inside the house.
However, he also testified that the government knew drugs had
previously been in the house based on the testimony of Rucker’s
girlfriend that she had flushed some down the toilet. Further,
Medford testified that Rucker’s girlfriend stated that Rucker
normally manufactured methamphetamine in both the detached and
attached garages. Finally, Medford testified that certain drug
paraphernalia, specifically syringes, were found in the kitchen.5
3
The clear-error standard survives United States v. Booker,
543 U.S. 220 (2005). United States v. Villanueva, 408 F.3d 193,
203 n.9 (5th Cir. 2005) (internal citations omitted).
4
During a search of Rucker’s home officers recovered a New
Haven .22 caliber rifle, a Savage .30-30 bolt action rifle, and a
Stevens .410 gauge shotgun located in the back bedroom.
5
Rucker’s girlfriend testified that the syringes belonged to
her diabetic daughter and that she had never spoken to Lieutenant
3
Additionally, the presentence report noted that, according to a
“concerned citizen,” Rucker normally kept a handgun close to him
and had made statements about “shooting people.”
Based on the above evidence the district court did not clearly
err in concluding that it is not “clearly improbable” that the
firearms were connected to Rucker’s offense. Consequently, the
district court did not clearly err in applying the § 2D1.1
enhancement.
II
The sentencing in this case took place before the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220 (2005).
Based on the Supreme Court’s analysis under the Sixth Amendment,
Booker severed the portions of the Sentencing Reform Act that
mandated sentencing and appellate review in conformance with the
Guidelines. Id. at 756-57, 764-65. Consequently the Guidelines
were rendered “effectively advisory.”
In United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005)
cert. denied, 126 S.Ct. 43 (2005), this Court addressed the
application of Booker, holding that in cases where Booker error was
preserved, “we will ordinarily vacate the sentence and remand,
unless we can say the error is harmless under Rule 52(a) of the
Federal Rules of Criminal Procedure.” Id. at 520 n.9. A review of
the record establishes that Rucker timely raised a Blakely
Medford.
4
objection to his sentence which effectively preserved Booker error
for appellate review. United States v. Akpan, 407 F.3d 360, 376
(5th Cir. 2005). The question thus becomes whether the district
court’s error in considering the Guidelines mandatory was harmless.
The district court imposed three alternative sentences.
Although we may speculate which sentence the district court would
impose, this court has recognized that mere speculation fails to
satisfy a harmless error standard of review. See, e.g., United
States v. Pineiro, 410 F.3d 282, 287 (5th Cir. 2005) (applying the
harmless error standard in a claim of Booker error and holding that
the government must bear the burden “of showing beyond a reasonable
doubt that the district court would have imposed the same sentence
under an advisory scheme.”). As the government correctly concedes
that it cannot demonstrate harmless error, resentencing in light of
Booker is appropriate.
III
For the above stated reasons Rucker’s sentence is VACATED, and
the case is REMANDED for resentencing.
VACATED and REMANDED.
5