United States v. Zehm, Roger D. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2495
United States of America,
Plaintiff-Appellee,
v.
Roger D. Zehm,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-CR-1-S--John C. Shabaz, Chief Judge.
Argued January 4, 2000--Decided June 27, 2000
Before Cudahy, Kanne, and Diane P. Wood,
Circuit Judges.
Cudahy, Circuit Judge.
I) Facts
On January 6, 1999, a grand jury in the
Western District of Wisconsin returned a
four-count indictment against Roger Zehm,
charging him with one count of conspiring
with Trevor Christiansen to distribute
methamphetamine from February 1998 until
early April 1998 and one count of
conspiring with Eric Brown to distribute
methamphetamine from February 1998 until
June 1998. Zehm was also charged with two
counts of distributing methamphetamine--a
total of 4.25 grams--to Cathy Lindstrom
on April 29, 1998 and May 4, 1998. Police
arrested Zehm on January 13, 1999.
Pursuant to a plea agreement, Zehm
pleaded guilty to counts 3 and 4, which
involved the "retail" sales of
methamphetamine. See Appellant’s Appendix
B at 4. The trial court dismissed counts
1 and 2, involving the Christiansen and
Brown conspiracies, in which Zehm had
allegedly made "bulk" purchases of
methamphetamine and other drugs that he
would subsequently sell to individual
buyers.
Zehm admitted he had been in the
business of dealing drugs for twenty
years. See Appellant’s Short Appendix at
7 (Trial Court "Statement of Reasons").
From the third week of February 1998
until early April 1998, Zehm purchased
methamphetamine and cocaine from Trevor
Christiansen. He always paid in cash. As
a rule, Zehm purchased drugs from
Christiansen at Christiansen’s home.
After making an initial quarter-ounce
methamphetamine purchase from
Christiansen, Zehm developed a routine in
which he bought three-quarters of an
ounce of methamphetamine every three days
over a six-week period. Zehm purchased
nine ounces of methamphetamine and one
ounce of cocaine over the course of his
relationship with Christiansen. From
February 1998 until June 1998, Zehm also
purchased methamphetamine from Eric
Brown. Again, he began with a relatively
small initial purchase (one ounce), and
then developed a routine in which he
bought two to four ounces of
methamphetamine every other day. Zehm
bought the drugs at Brown’s home in
Minnesota, and always paid cash. During
the month of May 1998, Brown was
imprisoned. Scott Wells, who supplied
Brown with methamphetamine, sold directly
to Zehm on Brown’s behalf while Brown was
incarcerated. According to the
Presentence Investigation Report, Zehm
purchased 81 ounces total from Brown and
Wells. The district court explained that
Zehm maintained multiple drug suppliers
so that he would have a ready source of
drugs even if a supplier occasionally was
unavailable.
During the period Zehm was buying "bulk"
quantities of methamphetamine from Brown,
Wells and Christiansen, he was
distributing the methamphetamine to
individual drug users. Zehm lived in
space adjacent to an auto repair shop
owned by Joel Berg, and his rent payments
consisted of methamphetamine rather than
money. Russell Mork, a steady one-ounce
per month customer of Zehm’s, cooperated
with the government after Zehm’s arrest.
He told the grand jury that he saw Zehm
distribute methamphetamine to five
people, and said he had been told that
Zehm had been selling a quarter pound of
methamphetamine every day for a month and
a half. See Appellant’s Appendix at 75
(Gov’t Response to Presentence
Investigation Report, Attachment C, at
1).
In March 1998, while Brown and
Christiansen were serving as two of
Zehm’s steady suppliers, Zehm met Cathy
Lindstrom at a party. Lindstrom became a
steady half-gram per week customer of
Zehm’s. In April 1998, police arrested
Lindstrom for marijuana possession with
intent to distribute. She cooperated with
authorities, and made two controlled
methamphetamine purchases from Zehm on
April 29 and May 4. Zehm had purchased
the methamphetamine sold to Lindstrom
from a third supplier, Jeremy Baker.
On May 8, 1998, police executed a search
warrant on Zehm’s car. They found 14.6
grams of cocaine, 1.2 grams of
methamphetamine, a loaded .32 caliber
derringer, records of his drug sales to
various individuals, $4,000 in cash and a
cellular phone. Several of Zehm’s
customers, as well as Eric Brown and
Trevor Christiansen, testified before the
grand jury about Zehm’s drug business.
They furnished details about the quantity
of Zehm’s purchases and sales. The trial
court relied on these statements in
determining Zehm’s sentence.
The trial court sentenced Zehm to two
240-month terms of imprisonment, running
concurrently. In determining the
sentence, the court included as relevant
conduct the 4.25 grams of methamphetamine
Zehm sold to Lindstrom on April 29 and
May 8, to which Zehm had pleaded guilty.
The court also included in Zehm’s
relevant conduct his "bulk"
methamphetamine purchases from Brown,
Wells and Christiansen, even though Zehm
had not pleaded guilty to those counts.
The court determined that the bulk
purchases amounted to 90 ounces of
methamphetamine. Zehm contends on appeal
that these purchases should not be
included as relevant conduct.
Additionally, he argues that even if the
trial court was entitled to account for
his purchase from Brown and Christiansen,
it miscalculated the total amount
purchased by 75 ounces because it
erroneously credited Brown’s unreliable
testimony. The trial court also denied
Zehm’s request for a three-level
reduction for acceptance of
responsibility. Zehm protests this
denial. Finally, the trial court also
determined that the loaded gun found in
Zehm’s car warranted a two-level
sentencing adjustment because Zehm
possessed it during the commission of a
drug offense. Zehm challenges these
conclusions.
II) Analysis
A) Relevant Conduct
The Sentencing Guidelines instruct that
a defendant’s base offense level reflect
the quantity of drugs for which the
defendant is accountable. See United
States v. Griffin, 194 F.3d 808, 826 (7th
Cir. 1999), citing U.S.S.G. sec. 2D1.1.
The base offense level must reflect not
just the amount of drugs involved in the
offense of conviction, but also the
defendant’s "acts and omissions . . .
that were part of the same course of
conduct or common scheme or plan as the
offense of conviction." U.S.S.G. sec.
1B1.3(a)(2). We review for clear error
the district court’s application of the
so-called "aggregation rule" to determine
drug quantities attributable to relevant
conduct, including both convicted and
unconvicted offenses. See United States
v. Bacallao, 149 F.3d 717, 719 (7th Cir.
1998). The government has a significantly
lighter burden at sentencing than it had
at trial, because it need only prove
relevant conduct by a preponderance of
the evidence, and relaxed evidentiary
rules apply. See United States v.
Crockett, 82 F.3d 722, 729 (7th Cir.
1996). As a measure of restraint,
however, we insist that sentencing courts
"explicitly state and support, either at
the sentencing hearing or (preferably) in
a written statement of reasons, the
finding that the unconvicted activities
bore the necessary relation to the
convicted offense." See United States v.
Beler, 20 F.3d 1428, 1432 (7th Cir.
1994), citing United States v. Duarte,
950 F.2d 1255, 1263 (7th Cir. 1991).
The government may prove the necessary
link between the convicted and
unconvicted offenses in two ways. It may
argue that the offenses are part of a
"common scheme or plan." U.S.S.G. sec.
1B1.3(a)(2). Or it may contend that the
offenses are part of the same "course of
conduct." Id. While these two
formulations sound similar, they actually
capture two distinct concepts. Offenses
are part of a common scheme or plan if
they are connected by at least one common
factor, such as "common victims, common
accomplices, common purpose, or similar
modus operandi." See Bacallao, 149 F.3d
at 719, citing U.S.S.G. sec. 1B1.3(a)(2),
Application Note 9. Offenses are part of
the same course of conduct if they are
"part of a single episode, spree, or
ongoing series of offenses." Id. Courts
assessing whether offenses are part of a
course of conduct focus on whether the
offenses were similar, regular, and close
in time. See Bacallao, 149 F.3d at 719.
In the present case, the trial court
provided, as required by Beler, a written
statement of reasons, in which it
explicitly identified the basis for its
finding that the unconvicted counts of
bulk drug purchases from Christiansen and
Brown were relevant conduct. See
Appellant’s Short Appendix at 7
(Statement of Reasons). It expounded on
its reasoning at sentencing. See
Sentencing Transcript at 19-20. The trial
court found that the unconvicted drug
purchases met both tests for relevant
conduct. "Having multiple sources for his
drugs he turned from Christiansen to
Brown to Wells. His purpose remained the
same--to secure drugs for himself and his
customers . . . . Although defendant was
not convicted of counts 1 and 2, the
conduct embodied therein is included in
the guideline computations because it was
part of the same course of conduct or
common scheme or plan as the offenses of
conviction . . . ." Short Appendix at 7
(Statement of Reasons).
Though it purported to find both a
common scheme and a course of conduct,
the trial court’s written explanation
identified just one relevant conduct
factor, the common purpose driving the
unconvicted drug purchases and the
convicted drug sales. In its oral
statement, the court identified the
similar modus operandi throughout the
period in question. Common purpose and
similar modus operandi are factors
suggesting a common scheme. Therefore, we
will first review whether the trial court
erred in finding that Zehm’s offenses
were part of a common scheme or plan. As
the district court stated, Zehm admitted
to having dealt drugs for two decades.
Zehm appears to have been the
quintessential middleman--purchasing
wares in bulk from suppliers, and selling
them in retail quantities to individuals.
Such "dealing" necessarily requires that
the dealer both buy and sell drugs. Zehm
could not, in other words, have completed
the retail sales for which he was
convicted without first acquiring drugs
from a supplier. The trial court’s brief
explanation captured this essential
reality when it referred to Zehm’s
sellers as drug "sources" and, in turn,
to his drug "customers." Courts have
recognized that purchases predating
convicted sales may be considered
relevant conduct. For instance, in United
States v. Vital, 68 F.3d 114, 116 (5th
Cir. 1995), the defendant was convicted
of one count of possession with intent to
distribute cocaine, after he sold 27.7
grams of cocaine to an undercover police
officer. The Fifth Circuit let stand the
trial court’s decision to include as
relevant conduct the convicted sale, a
subsequent sale to the same officer one
week later, and thrice-weekly purchases
of cocaine made on the defendant’s behalf
in the month preceding the convicted
sale. See id. at 116-18.
In the case now before us, Zehm admitted
to a two-decade career as a drug dealer.
Throughout the period in question, he had
regular customers who scheduled routine
drug purchases and therefore he could
calculate the inventory required to meet
demand. Cathy Lindstrom, whose two
purchases gave rise to Zehm’s conviction,
purchased a half gram of methamphetamine
from Zehm weekly. Russell Mork purchased
one ounce of methamphetamine from Zehm
every month, and testified that Zehm had
been selling a quarter pound of
methamphetamine daily for the six weeks
prior to his arrest. Zehm even made his
monthly rent payments in methamphetamine.
This steady, predictable demand was
fueled by a steady, predictable supply
from Christiansen and Brown (and Brown’s
stand-in, Wells). Zehm purchased three-
quarters of an ounce of methamphetamine
every three days from Christiansen, and
two to four ounces of methamphetamine
every other day from Brown. The routine
weekly sales to Lindstrom would not have
been possible, in light of the high
demand for Zehm’s product, without the
steady, reliable supply provided by
Christiansen and Brown./1 Thus, a
common purpose--maintenance of a high-
volume drug distributorship--propelled
both the convicted retail sales and the
unconvicted bulk purchases. Further, as
the sentencing court noted, Zehm’s modus
operandi throughout the relevant time
period was similar. He drove to the homes
of his suppliers on a predictable,
frequent schedule and paid in cash for
small, fixed amounts of drugs. He then
sold the drugs in regular quantities to
repeat customers. Based on these two
factors--commonality of purpose and
similarity of modus operandi--the trial
court did not clearly err in counting the
purchases from Christiansen and Brown in
Zehm’s relevant conduct.
The trial court also concluded that the
evidence was sufficient to prove that all
the offenses were part of a course of
conduct. The court’s written explanation
does not identify any factors supporting
this conclusion. But at the sentencing
hearing, the judge stated that "[h]e
purchased methamphetamine from
Christiansen, Brown, and then he resold
the methamphetamine. All of this was the
same course of conduct. . . . He
purchased it from suppliers, whether it
be Christiansen or whether it be Brown or
whether it be a subsequent supplier.
There was regularity, proximity between
the counts of conviction and his
methamphetamine dealing with Christiansen
and Brown." Sentencing Tr. at 19. A
course of conduct involves an ongoing
series of offenses, and courts are to
examine whether the offenses were
similar, regular and close in time. See
Bacallao, 149 F.3d at 719. For instance,
in United States v. Benitez, 92 F.3d 528
(7th Cir. 1996), we affirmed the trial
court’s finding that the defendant had
engaged in a "course of conduct"
goingbeyond the offense of conviction;
this extended conduct involved a four-
kilogram cocaine purchase from a
confidential informant. See id. at 539.
During the two years the informant was in
touch with the defendant, she had
frequently discussed the demand for
cocaine and the corresponding police
surveillance of suspected drug dealers.
See id. at 531-32. In addition to several
stray remarks regarding her cocaine
dealing, the defendant on one occasion
remarked that she had seven kilograms of
cocaine in her possession, and at another
time estimated that she could sell up to
eight kilograms in the near future. See
id. at 537, 539. We concluded that the
defendant’s ability to calibrate her
cocaine purchases and likely cocaine
sales indicated that the convicted
purchase was part of a course of drug-
dealing conduct. See id. at 538. We
affirmed, finding that the defendant’s
revelations to the informant demonstrated
a course of conduct involving at least
five kilograms of drugs. See id. at 538-
39. Similarly, in United States v.
Townsend, 73 F.3d 747, 749 (7th Cir.
1996), a defendant pleaded guilty only to
one count of drug possession. But the
sentencing court heard evidence that he
had been making biweekly drug deliveries
to two distributors for the six months
leading up to his possession offense, and
we affirmed that the drug deliveries were
sufficiently regular to amount to a
course of conduct consistent with his
possession conviction. See Townsend, 73
F.3d at 752.
Based on these precedents, we agree with
the trial court that Zehm’s drug
purchases and drug sales were an ongoing
series of offenses. Though buying and
selling are, in a sense, dissimilar
activities, they are structurally
symbiotic. As in Benitez, we recognize
that a mid-level drug dealer who
simultaneously estimates impending demand
and tries to procure an adequate supply
is engaged in a course of conduct. One
cannot sell drugs one has not procured.
Further, the trial court in the present
case correctly zeroed in on the
regularity of Zehm’s buys. He purchased
every other day from Brown, and every
third day from Christiansen. He routinely
went to their homes to buy drugs, and
always paid in cash. He sold drugs once a
week to Lindstrom, once a month to Mork,
and paid his rent in drugs, in addition
to servicing other customers who
apparently purchased a quarter-pound of
methamphetamine daily. This metronomic
scheduling is similar to the biweekly
sales found regular in Townsend. Finally,
the acts in this ongoing series of
offenses were not just close in time, but
virtually simultaneous. The relevant time
period was February 1998 to June 1998;
during that time Zehm bought drugs on
alternating days from Brown and
Christiansen, and from March to April,
was selling drugs to Lindstrom. Though
the trial court did not explicitly cite
these facts when concluding that Zehm
engaged in a course of conduct, the
record amply supports that finding. In
sum, the trial court did not commit clear
error in finding that Zehm’s relevant
conduct included the unconvicted
Christiansen and Brown drug conspiracies.
Zehm protests the district judge’s
relevant conduct calculation on an
additional ground. Even if the sentencing
court was correct to include the Brown
conspiracy, he argues, the court
incorrectly calculated the drug quantity
attributable to that conspiracy. The
trial court determined that Zehm was
responsible for 2.55 kilograms of metham
phetamine, leading to a base offense
level of 34 (reflecting responsibility
for between 1.5 and 5 kilograms of
drugs). Zehm admitted that he purchased
nine ounces of methamphetamine from
Christiansen. Additionally, the trial
court found that Zehm purchased 81 ounces
of methamphetamine in the course of the
Brown conspiracy. Zehm counters that he
purchased just six ounces from Brown.
Again, we review the trial court’s
relevant conduct calculation for clear
error. See Griffin, 194 F.3d at 827.
Zehm argues that the sentencing court
erred by crediting Brown’s allegedly
unreliable testimony in order to arrive
at the 81-ounce figure. Brown testified
that he began dealing with Zehm in March
1998 and continued dealing with him until
June 1998. Further, Lindstrom, Neely and
Mork appeared to corroborate that Eric
Brown was supplying large amounts of
methamphetamine to Zehm on a regular
basis. One witness reported that Zehm had
been purchasing between $4,000 and $8,000
of methamphetamine regularly "from his
source, Eric, in Little Canada,
Minnesota." Presentence Investigation
Report at par. 15. Further, even after
supplier Christiansen’s April arrest,
witnesses stated that Zehm continued to
have access to large quantities of drugs,
suggesting that he had found an alternate
supplier. Indeed, one witness stated that
"Roger Zehm is getting [drugs] from Eric
Brown as his source after Christiansen
was arrested." Appellee’s Br. at 23.
Zehm assails this evidence on many
grounds. He argues that Brown is not a
reliable witness because as the primary
drug supplier in the alleged conspiracy,
"he has the greatest incentive to
fabricate." Appellant’s Br. at 21. This
fabrication is evidenced, he argues, by
the fact that Brown did not specifically
state that he stopped dealing drugs to
Zehm either while Zehm was jailed from
May 6 to May 20, or when Brown was jailed
from late May to June 12. It is axiomatic
that the defendant has a due process
right to be sentenced on the basis of
reliable information. See United States
v. Lanterman, 76 F.3d 158, 160 (7th Cir.
1996). But we have stated that the
hallmark of reliability is consistency of
facts and details. See United States v.
Galbraith, 200 F.3d 1006, 1012 (7th Cir.
2000) (collecting cases). The testimony
of just one witness, even a potentially
biased witness, is sufficient to support
a finding of fact. See Galbraith, 200
F.3d at 1012, citing United States v.
Cedano-Rojas, 999 F.2d 1175, 1180 (7th
Cir. 1993). We require only that the
testimony be consistent, or that the
trial judge provide an explanation for
crediting one of the witness’s
inconsistent statements over the others.
See Galbraith, 200 F.3d at 1013. For
instance, when witnesses have given
varying estimates of the amount of drugs
they sold or purchased, we have not
permitted the trial judge to credit one
of the amounts without explaining why it
was more believable than the others. See,
e.g., United States v. McEntire, 153 F.3d
424, 436 (7th Cir. 1998); Beler, 20 F.3d
at 1430-33.
In the present case, Brown’s status as
a government witness and alleged drug
dealer does not sufficiently import bias
so as to undermine the reliability of his
testimony. Further, the "inconsistencies"
Zehm targets are of no moment. The
Presentence Investigation Report flatly
contradicts Zehm’s suggestion that Brown
did not admit he ceased dealing drugs to
Zehm during Brown’s incarceration. It
reports that "Brown stated that Graig
Wells took over his business while he was
in jail and started dealing to [Zehm]."
Presentence Investigation Report at 6,
par. 23. And while Brown did not
specifically detail the two-week break in
his dealing to Zehm while Zehm was in
jail, he also did not explicitly state
that he dealt drugs to Zehm during the
period in question. Thus, Brown’s account
is not overtly inconsistent with reality.
Zehm also charges that Brown incorrectly
stated he began dealing with Zehm in
March 1998, while one witness stated that
"Zehm is getting methamphetamine from
Eric Brown as his source after
Christiansen was arrested [in April]."
Again, this statement is subject to
interpretation. It could well have meant
that although Brown was initially a minor
supplier to Zehm, he expanded his role
when Christiansen suspended business upon
his arrest. In short, nothing said by
Brown or witnesses corroborating his
account was at odds with other witnesses,
or with Zehm’s version of events, and
therefore we do not believe that Brown’s
testimony should be characterized as
unreliable. The trial judge did not
clearly err in crediting Brown’s
testimony or in calculating that Zehm had
purchased 81 ounces of methamphetamine
from Brown. We therefore affirm the trial
court’s relevant conduct calculation in
its entirety.
B) Acceptance of Responsibility
Zehm asked the sentencing judge to
decrease his sentence to reflect that he
had accepted responsibility for his
crimes, pursuant to U.S.S.G. sec. 3E1.1.
That section provides that a defendant
whose offense level is on par with
Zehm’s, and who "clearly demonstrates
acceptance of responsibility for his
offense" should receive a three-point
decrease in his offense level. The
commentary to this provision advises
sentencing judges that they may consider
factors such as
truthfully admitting the conduct
comprising the offense(s) of conviction,
and truthfully admitting or not falsely
denying any additional relevant conduct
for which the defendant is accountable
under sec. 1B1.3. . . . A defendant is
not required to volunteer, or
affirmatively admit, relevant conduct
beyond the offense of conviction in order
to obtain a reduction under subsection
(a). A defendant may remain silent in
respect to relevant conduct beyond the
offense of conviction without affecting
his ability to obtain a reduction under
this subsection. However, a defendant who
falsely denies, or frivolously contests,
relevant conduct that the court
determines to be true has acted in a
manner inconsistent with acceptance of
responsibility.
U.S.S.G. sec. 1B1.3, Application Note
1(a).
The judge denied the reduction, based on
Zehm’s challenge to the relevant conduct
calculations. Zehm appeals this denial.
We review for clear error a sentencing
court’s factual determination of whether
a defendant has accepted responsibility.
See United States v. Herrera-Ordones, 190
F.3d 504, 511 (7th Cir. 1999); United
States v. Taylor, 72 F.3d 533, 550 (7th
Cir. 1995).
We have previously withheld the
acceptance of responsibility deduction
from defendants who deny relevant conduct
in the face of sworn statements from
witnesses or coconspirators tying them to
the offenses in question. For instance,
in Taylor, 72 F.3d at 547-49, the
sentencing court computed relevant
conduct based on the Presentence
Investigation Report. That report, in
turn, relied on statements from "at least
half a dozen individuals with first-hand
knowledge of the drug-distribution
network . . . who . . . gave largely
consistent and mutually-corroborating
accounts . . . [but] provided varying
estimates of drug quantities." See id. at
543. The defendant challenged the
relevant conduct calculation, denying the
statements of witnesses and contesting
the sentencing judge’s application of the
aggregation rule. The court subsequently
denied the defendant a reduction for
acceptance of responsibility, stating
that while it is "perfectly appropriate"
for a defendant to contest the amount of
drugs, it was inappropriate to "deny
frivolously" the extent of involvement in
the conspiracy. Id. at 550. Because the
defendant’s story was wholly at odds with
the statements of witnesses, the judge
concluded that her denial was false and
the reduction unwarranted.
Zehm’s case squares exactly with Taylor.
Zehm contested the judge’s application of
the aggregation rule, and denied
responsibility for the full extent of his
involvement in the Brown conspiracy in a
statement wholly at odds with witness
testimony. The sentencing court explained
that the defendant had "falsely denied
and frivolously contested relevant
conduct which the Court has determined to
be true," and therefore did not merit a
sentence reduction. Zehm now argues that
he never denied his part in the Brown or
Christiansen conspiracies, but merely
challenged whether they were relevant to
the offense of conviction. Had he
restricted himself to such legal
maneuvering, we might take a more
favorable view of this matter. But he
also challenged the amount of drugs
attributable to the Brown conspiracy. As
in Taylor, he offered only his bare
denials to counter the largely consistent
stories of several witnesses. The
sentencing court did not clearly err in
finding that Zehm’s challenge was
frivolous, and we therefore affirm its
decision to deny the sentence reduction.
C) Possession of Dangerous Weapon
On May 8, 1998, four days after Zehm
completed a controlled sale of
methamphetamine to Lindstrom, a confiden
tial informant told police that Zehm
would be picking up about $8,000 worth of
methamphetamine that evening. Police
intercepted Zehm that night, and stopped
his car. He denied police permission to
search the car, but police obtained a
warrant over the phone. They searched the
car and found cocaine and
methamphetamine, drug paraphernalia,
$4,000 in cash and a .32 caliber gun with
two live rounds of ammunition.
The district court explained in its
written Statement of Reasons that it
added two points to Zehm’s base offense
level because section 2D1.1(b)(1) of the
Sentencing Guidelines requires an
adjustment for possession of a firearm
during an offense. Commentary to the
provision states that "[t]he adjustment
should be applied if the weapon was
present, unless it is clearly improbable
that the weapon was connected with the
offense." Application Note 3. Section
2D1.1(b)(1) requires active or
constructive possession of a firearm. See
United States v. Griffin, 150 F.3d 778,
786 (7th Cir. 1998), citing United States
v. Wetwattana, 94 F.3d 280, 283 (7th Cir.
1996). Constructive possession exists
when a person exercises control over the
firearm. See Wetwattana, 94 F.3d at 283.
For instance, a defendant who sat in the
back seat of a car next to a gun
concealed in a tissue box was held to
have possessed the gun. See id. And when
police impounded a car and found drugs in
the cargo area and a gun concealed in a
briefcase on the floor of the front
passenger seat, we held that the
defendant possessed the gun in connection
with the drug offense. See Griffin, 150
F.3d at 786. Further, a defendant need
not possess the gun during the offense of
conviction, but may possess it during
relevant conduct. See Wetwattana, 94 F.3d
at 283, citing United States v. Anderson,
61 F.3d 1290, 1303-04. Thus, in United
States v. Mumford, 25 F.3d 461, 468 (7th
Cir. 1994), we affirmed a weapons
enhancement for a defendant whose
coconspirator carried a gun not during
the transaction for which the defendant
was convicted, but during other
transactions considered to be relevant
conduct. See also United States v. Price,
54 F.3d 342, 348 (7th Cir. 1995). We
review the district court’s upward
adjustment of a sentence for clear error.
See Wetwattana, 94 F.3d at 283.
The relevant conduct period in Zehm’s
case extended from February 1 until June
30. The Christiansen conspiracy ended on
April 7, when Christiansen was arrested,
but the Brown conspiracy continued. Thus,
the Brown conspiracy was ongoing on May
8, the date the defendant was found to be
in possession of the weapon. Moreover,
the gun was found in close proximity to
drugs, lending credibility to the trial
court’s determination that it was not
clearly improbable the gun was possessed
in connection with the drug offense. See
Sentencing Tr. at 26. Further, according
to the report of a confidential
informant, Zehm was retrieving drugs from
Minnesota when police searched his car
and found the gun. Thus, as in Mumford,
Zehm did possess the gun during the Brown
conspiracy even though he may not have
possessed it during the convicted sales
to Cathy Lindstrom. The trial court did
not clearly err in finding that Zehm
possessed the gun during conduct relevant
to the convicted offenses, and we affirm
its decision to enhance Zehm’s base
offense level by two.
III) Conclusion
The trial court correctly analyzed and
explained that Zehm engaged in the
unconvicted conspiracy offenses as part
of a scheme or plan and as part of a
course of conduct common with the
convicted drug sales. The trial court
correctly found Brown’s testimony
reliable and rightly computed the amount
of drugs attributable to Zehm as a result
of the Brown conspiracy. The court did
not err by denying Zehm an acceptance of
responsibility deduction, because it
soundly determined that Zehm had
frivolously contested the extent of his
relevant conduct. Finally, the trial
court properly enhanced Zehm’s sentence
by two levels to reflect the fact that he
possessed a firearm during conduct
relevant to the convicted offenses. We
affirm on all grounds.
/1 Zehm contends that the methamphetamine he sold
to Lindstrom in the convicted offenses was
actually purchased from a third supplier, Jeremy
Baker. Thus, neither Christiansen nor Brown was
linked to the convicted sales, he argues. The
provenance of Lindstrom’s methamphetamine on the
charged occasions is irrelevant. Zehm worked with
several suppliers in order to satisfy demand in
the Polk County, Wisconsin, area. Had he not
dealt with Christiansen or Brown, the drugs he
purchased from Baker might have been insufficient
to cover all of his customers, including
Lindstrom. So the Christiansen and Brown
conspiracies were essential to the completion of
the convicted sales to Lindstrom.