United States v. Karen Zais , 711 F. App'x 338 ( 2017 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 28, 2017
Decided October 16, 2017
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
Nos. 16-4066, 16-4174
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v.
No. 16-CR-0028
KAREN ZAIS and ANDREW NELSON,
Defendants-Appellants. James D. Peterson,
Chief Judge.
ORDER
Karen Zais and Andrew Nelson (“Defendants”) pleaded guilty to a charge of
conspiracy to distribute 500 grams or more of methamphetamine. At sentencing, the
district court applied a two-level enhancement as a result of the Defendants’ possession
of three rifles. See U.S.S.G. § 2D1.1(b)(1). Because the district court did not commit clear
error in finding that it was not clearly improbable that the rifles were connected with
the drug conspiracy, we affirm.
Nos. 16-4066, 16-4174 Page 2
I.
From January to June 2014, the Defendants were involved in a large-scale drug
conspiracy. During that time, Jenna Zais (the daughter of defendant Karen Zais)
introduced the Defendants to her boyfriend, Kyle Quintana, who began supplying the
Defendants with methamphetamine. Quintana would arrange for various amounts of
methamphetamine (eventually reaching a pound per week on average) to be delivered
to the Defendants’ residence, a 148-acre property in rural Wisconsin. Other dealers and
users would then come to the Defendants’ property to acquire the methamphetamine,
and either Jenna or Quintana would arrive to pick up the money. Jenna received $20,000
from the Defendants on at least twenty occasions. Given concerns about contaminating
the house with the drugs, the Defendants restricted their drug activity to a single “drug
room” in the basement. The room contained video monitors connected to cameras
showing the outside of the house in several directions.
On June 14, 2014, authorities conducted a search of the Defendants’ home. In the
search, law enforcement seized over 360 grams of methamphetamine, drug
paraphernalia, a drug ledger, and other evidence of illicit activity. Officers also seized
three firearms: a single-shot, bolt-action .22 caliber rifle; a semiautomatic .22 caliber
rifle; and a .270 caliber rifle with a scope. Two of these rifles were leaning on the wall
outside the drug room, and the other was in the door frame leading to the drug room.
The rifles were unloaded, and officers found no ammunition in the house.
The Defendants pleaded guilty to conspiracy to distribute 500 grams or more of
methamphetamine. At their separate sentencing hearings, both Defendants maintained
that the rifles were not connected with their methamphetamine distribution, and
therefore the two-level enhancement for possession of a firearm in connection with a
drug offense should not apply. The district court considered their arguments and
acknowledged that the connection between the rifles and the drug conspiracy was not
“beyond a reasonable doubt.” Nevertheless, given the location where the officers
discovered the rifles, the surveillance equipment, and the large amounts of money and
drugs involved in the conspiracy, the district court concluded that it was not “clearly
improbable” that the rifles were connected to the conspiracy and applied the
enhancement. The district court sentenced Zais to 72 months’ imprisonment and five
Nos. 16-4066, 16-4174 Page 3
years of supervised release. It sentenced Nelson to 54 months’ imprisonment and five
years of supervised release. 1 The Defendants appeal.
II.
On appeal, the Defendants argue that the district court erred in finding that the
rifles were connected with the offense and applying the two-level weapons
enhancement. Sentencing Guideline § 2D1.1(b)(1) provides for a two-level enhancement
“[i]f a dangerous weapon (including a firearm) was possessed.” Application Note 11(A)
states that “[t]he 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
cmt. n. 11(A); see also United States v. Rogers, 777 F.3d 934, 936 (7th Cir. 2015) (“In
addition to the actual language of the Guidelines, we must also consider the
Application Notes as they are considered part of the Guidelines and not mere
commentary on them.”). As an example, the Note describes that “the enhancement
would not be applied if the defendant, arrested at the defendant’s residence, had an
unloaded hunting rifle in the closet.” U.S.S.G. § 2D1.1 cmt. n. 11(A).
Here, there is no dispute that the Defendants possessed the rifles, so the focus of
our inquiry is whether it is “clearly improbable” that the rifles were connected with the
drug conspiracy. See United States v. Rollins, 544 F.3d 820, 837 (7th Cir. 2008). The
Defendants bear the burden of proof on that point. Id. While “[w]e review the district
court’s interpretation and application of the Sentencing Guidelines de novo,” United
States v. Fife, 471 F.3d 750, 752 (7th Cir. 2006), whether a weapon’s connection with an
offense is sufficiently probable is a question of fact, so we review the district court’s
finding for clear error, United States v. Perez, 581 F.3d 539, 546 (7th Cir. 2009). Applying
that standard, our “task on appeal is not to see whether there is any view of the
evidence that might undercut the district court’s finding; it is to see whether there is any
evidence in the record to support the finding.” United States v. Wade, 114 F.3d 103, 105
(7th Cir. 1997).
1 Both sentences were below the Guidelines range, suggesting that the application of the enhancement
was harmless. See United States v. Hill, 645 F.3d 900, 912 (7th Cir. 2011) (“When we are convinced that the
sentence would have been the same absent the error, we deem the error harmless.”). Nevertheless, the
enhancement affects the Defendants by making them ineligible for a twelve-month sentence reduction
upon completion of a drug-abuse-treatment program. See 28 C.F.R. § 550.55(b)(5)(ii) (excluding inmates
from eligibility for early release if they are convicted of an offense involving the possession of a firearm).
Consequently, we decline to engage in a harmless-error analysis.
Nos. 16-4066, 16-4174 Page 4
The Defendants contend that the facts here fall within the scope of the example
given in the Application Note. In making their argument, the Defendants rely heavily
on a case from the Eighth Circuit, United States v. North, 900 F.2d 131 (8th Cir. 1990). In
that case, the court concluded that it was clearly improbable that three guns (an antique
pistol, an unloaded shotgun, and an inoperable rifle) seized from the defendant’s house
were connected with the defendant’s drug activity. Id. at 134–35. The court based its
decision in part on testimony from the defendant’s son that the shotgun and the rifle,
both of which were found in the son’s bedroom, belonged to the son and were used for
hunting. Id. at 135.
Despite the Defendants’ contentions, this case is not the same as North, and the
facts here show a much stronger connection between the firearms and the Defendants’
conduct. The three rifles at issue here were not found in a bedroom upstairs, but in very
close proximity to the one room in the house where the Defendants conducted their
drug activities. This implies a strong connection between the rifles and those activities.
See United States v. Are, 590 F.3d 499, 526 (7th Cir. 2009) (noting that there is a
presumption of a connection “when a gun is found in ‘close proximity’ to illegal
drugs”). And unlike North, there was no testimony from someone else saying the guns
belonged to him. Additionally, the drug room was equipped with surveillance
equipment, which indicates the Defendants were very interested in protecting the large
amounts of money and drugs involved in their operation. Because drug traffickers often
use firearms for protection, this likewise implies a connection between the rifles and the
offense. See United States v. Wetwattana, 94 F.3d 280, 285 (7th Cir. 1996). If those video
monitors pictured a stranger who might be a threat, the rifles were available to deter an
unwanted visitor.
The Defendants also point to the lack of ammunition as evidence that the rifles
were not connected with the drug conspiracy. However, the fact that the rifles were
unloaded and no ammunition was found does not make it clearly improbable that the
rifles were intended to protect the drug operation. An unloaded firearm may be used as
a threat just as effectively as a loaded one because it is difficult, if not impossible, to tell
whether a firearm is loaded when one is staring down its barrel. See United States v.
Paulk, 917 F.2d 879, 882 (5th Cir. 1990) (“Flashing an unloaded gun often has the same
effect as waving a loaded one.”).
Nos. 16-4066, 16-4174 Page 5
III.
Given these facts, we conclude that the district court did not clearly err in finding
that it was not clearly improbable that the rifles were connected with the drug
conspiracy. Accordingly, we also find no error in the district court’s application of the
two-level weapons enhancement. We AFFIRM.