United States v. Dana Thompson ( 1996 )

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No. 96-1162
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United States of America, *
*
Appellee, *
*
v. *
*
Dana Thompson, also known as *
Dee, *
*
Appellant. *
___________ Appeals from the United States
District Court for the
No. 96-1163 District of Minnesota.
___________
[UNPUBLISHED]
United States of America, *
*
Appellee, *
*
v. *
*
Andre Dewayne Williams, also *
known as Bam, *
*
Appellant. *
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Submitted: July 19, 1996
Filed: August 12, 1996
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Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Andre Dewayne Williams and Dana Thompson challenge the sentences
imposed by the district court1 following their guilty pleas to conspiring
to distribute and possess with intent to distribute cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. We address each
appeal in turn, and affirm.
WILLIAMS
On appeal, Williams first argues the court erred by assessing a
firearm-possession enhancement under U.S.S.G. § 2D1.1(b)(2). For the
enhancement to apply, "the government has to prove by a preponderance of
the evidence that it is not clearly improbable that the weapon had a nexus
with the criminal activity." United States v. Richmond, 37 F.3d 418, 419
(8th Cir. 1994), cert. denied, 115 S. Ct. 1163 (1995).
Here, the record shows that the government produced sufficient
evidence, because the firearm was found in Williams' garment bag and near
the drugs, and Williams was using his residence to package and distribute
drugs. See United States v. Williams, 10 F.3d 590, 595-96 (8th Cir. 1993)
(where residence was used for drug dealing, sufficient nexus existed
between weapon found in second-floor bedroom and drugs found in first-floor
kitchen); United States v. Hammer, 3 F.3d 266, 270 (8th Cir. 1993)
(presence of guns in house where drugs were packaged and sold sufficient),
cert. denied, 114 S. Ct. 1121 (1994). Although Thompson testified at
Williams' sentencing hearing in an attempt to exonerate Williams on this
issue, the district court found the testimony was not credible, and that
finding is virtually unassailable. See United States v. Adipietro, 983
F.2d 1468, 1472 (8th Cir. 1993). We thus conclude the district court did
not clearly err by assessing the enhancement. See Richmond, 37 F.3d at 419
(standard of review).
1
The Honorable James M. Rosenbaum, United States District
Judge for the District of Minnesota.
Williams also argues the district court clearly erred by denying him
an additional one-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1(b). We reject this argument because the record shows
Williams minimized his responsibility and role in the offense. See United
States v. Behr, 33 F.3d 1033, 1037 (8th Cir. 1994).
We deny Williams' "Emergency Motion to Appoint Replacement Counsel
on Appeal."
THOMPSON
At Williams' sentencing hearing, Thompson provided testimony which
the district court found to be "a blatant and unmitigated lie." At the
beginning of Thompson's sentencing hearing the next day, the district court
advised the parties it was contemplating an upward departure based on
Thompson's conduct. After the parties addressed the matter, and without
objection, the district court assessed a two-level increase for obstruction
of justice, see U.S.S.G. § 3C1.1, departed upward seven months based on
U.S.S.G. § 5K2.0, p.s., and sentenced Thompson to 144 months imprisonment
and eight years supervised release.
On appeal, Thompson argues that the district court failed to provide
reasonable notice of its intent to depart upward. See Burns v. United
States, 501 U.S. 129, 138 (1990) (court must give parties "reasonable
notice" that it is considering departing upward on ground not identified
in presentence report). Based on the circumstances of this case, we
conclude Thompson had reasonable notice: the conduct primarily triggering
the departure occurred the day before his sentencing.
Thompson also argues the district court erred in departing upward.
We reject this claim. First, the Guidelines expressly authorize departure
when a sentencing court finds "that there
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exists an aggravating . . . circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission in
formulating the guidelines." 18 U.S.C. § 3553(b); see U.S.S.G. § 5K2.0,
p.s. Here, the district court concluded that a two-level increase for
obstruction of justice did not adequately address Thompson's egregious
conduct. Cf. United States v. Jagim, 978 F.2d 1032, 1038-39 (8th Cir.
1992) (affirming § 5K2.0 upward departure for egregious obstruction of
justice where sentencing court chose not to apply § 3C1.1, which would have
permitted only two-level enhancement), cert. denied, 508 U.S. 952 (1993).
Second, we conclude the record supports the existence of the circumstances
justifying departure, namely, the extent to which Thompson lied under oath.
Finally, we conclude that a seven-month upward departure was proper,
because the resulting sentence was below the statutory maximum for the
offense (life imprisonment), and deference is accorded district courts on
this issue. See 18 U.S.C. § 841(b)(1)(B); Saunders, 957 F.2d 1488, 1493
(8th Cir.) (court of appeals gives deference to district court and respects
its "superior `feel' for the case" (quoted case omitted)), cert. denied,
506 U.S. 889 (1992), and cert. denied, 506 U.S. 158 (1993); United States
v. Carey, 898 F.2d 642, 646 (8th Cir. 1990) (affirming departure from 180
months to 228 months, and noting sentence was well within statutory
maximum).
Accordingly, the judgments are affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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