United States v. Calvin Curtis Whitt , 470 F. App'x 820 ( 2012 )


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  •                                                         [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT          FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    APRIL 27, 2012
    No. 11-15458
    JOHN LEY
    Non-Argument Calendar
    CLERK
    ________________________
    D.C. Docket No. 3:11-cr-00054-LC-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    CALVIN CURTIS WHITT,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    ________________________
    (April 27, 2012)
    Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
    PER CURIAM:
    After pleading guilty, Calvin Curtis Whitt appeals his 48-month sentence for
    possession of a firearm by a convicted felon, in violation of 
    18 U.S.C. § 922
    (g)(1).
    On appeal, Whitt argues that the district court erred in applying a two-level
    dangerous weapon enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1). After
    review, we affirm.1
    I. WHITT’S GUIDELINES CALCULATIONS
    At sentencing, the district court determined Defendant Whitt’s base offense
    level using U.S.S.G. § 2K2.1, the guideline applicable to firearm offenses. Under
    § 2K2.1, Whitt’s initial base offense level was 14. See U.S.S.G. § 2K2.1(a)(6)(A).
    However, because Whitt possessed his firearm “in connection with” the uncharged
    offense of possessing cocaine base with intent to distribute, the district court
    applied § 2K2.1(c)’s cross reference. See U.S.S.G. § 2K2.1(c); United States v.
    Webb, 
    665 F.3d 1380
    , 1381 n.2 (11th Cir. 2012) (explaining that § 2K2.1(c)’s
    cross reference includes uncharged offenses). Section 2K2.1(c) directs the district
    court “to apply U.S.S.G. § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect
    to that other offense,” i.e., the base offense level for the drug trafficking offense, if
    that offense level is greater. U.S.S.G. §§ 2K2.1(c), 2X1.1(a).
    1
    We review for clear error the district court’s findings of fact under U.S.S.G.
    § 2D1.1(b)(1), and we review de novo the application of the Sentencing Guidelines to those
    facts. United States v. Pham, 
    463 F.3d 1239
    , 1245 (11th Cir. 2006).
    2
    Under U.S.S.G. § 2D1.1, the guideline applicable to drug trafficking
    offenses, Whitt’s base offense level was 22, which was the greater offense level.
    See U.S.S.G. § 2D1.1(c)(9) (2011). Thus, the district court used U.S.S.G.
    § 2D1.1’s level 22 for Whitt’s base offense level.
    The district court then applied the two-level dangerous weapon adjustment
    in § 2D1.1(b)(1) (explained below), for an adjusted offense level of 24.
    After a three-level reduction for acceptance of responsibility, Whitt’s total
    offense level was 21. Whitt’s criminal history category was III, which yielded an
    advisory guidelines range of 46 to 57 months’ imprisonment. The district court
    imposed a 48-month sentence. On appeal, Whitt challenges only the district
    court’s application of U.S.S.G. § 2D1.1(b)(1)’s two-level enhancement.2
    II. TWO-LEVEL ENHANCEMENT IN U.S.S.G. § 2D1.1(b)(1)
    Under U.S.S.G. § 2D1.1(b)(1), a defendant’s offense level increases by two
    levels “[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G.
    § 2D1.1(b)(1). This two-level increase applies “if the weapon was present, unless
    2
    The “in connection with” requirement in § 2K2.1(c) is satisfied when “the firearm . . .
    facilitated, or had the potential of facilitating” the other offense. U.S.S.G. § 2K2.1 cmt. n.14(A).
    In the context of drug offenses, the cross reference applies when the other offense is “a drug
    trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing
    materials, or drug paraphernalia.” Id. § 2K2.1 cmt. n.14(B). On appeal, Whitt does not
    challenge the district court’s application of § 2K2.1(c), but rather the application of
    § 2D1.1(b)(1).
    3
    it is clearly improbable that the weapon was connected with the offense.” Id.
    § 2D1.1, cmt. n.3(A).
    The government must show by a preponderance of the evidence that “the
    firearm was present at the site of the charged conduct” or that “the defendant
    possessed a firearm during conduct associated with the offense of conviction.”
    United States v. Stallings, 
    463 F.3d 1218
    , 1220 (11th Cir. 2006). However, the
    government is not required to prove that the firearm was used to facilitate the
    distribution of drugs for the enhancement to apply. United States v. Audain, 
    254 F.3d 1286
    , 1289-90 (11th Cir. 2001). Once the government meets this burden,
    then the evidentiary burden shifts to the defendant to demonstrate that a connection
    between the weapon and the offense was “clearly improbable.” Stallings, 
    463 F.3d at 1220
     (quotation marks omitted).
    In Defendant Whitt’s case, the district court properly applied
    § 2D1.1(b)(1)’s two-level enhancement. According to the undisputed facts in the
    presentence investigation report (“PSI”), Whitt and his roommate sold cocaine
    base directly in front of their residence. Law enforcement conducted several
    controlled buys from both Defendant Whitt and his roommate in amounts of less
    than one gram per transaction. Before each controlled buy, law enforcement called
    either Defendant Whitt or his roommate to arrange the transaction in front of the
    4
    residence. During the transactions, either Defendant Whitt or his roommate
    emerged from the residence, approached the confidential informant’s car to
    complete the transaction and then returned to the residence.
    While searching the residence, officers found approximately twenty grams
    of cocaine base, one gram of marijuana, smoking devices, plastic baggies, a digital
    scale with cocaine residue, $620 in cash and a loaded pistol. Approximately
    twelve grams of the cocaine base and the digital scale were found in a locked shed
    outside the residence. The key to that shed was found in Defendant Whitt’s pants
    pocket. The rest of the cocaine base was found in the roommate’s bedroom. The
    loaded firearm was found in Defendant Whitt’s bedroom in a dresser drawer. The
    $620 in cash was also found in Defendant Whitt’s bedroom in a juice bottle behind
    the bed. In a subsequent interview, Whitt told investigators that he had the gun for
    “protection.”
    Given the undisputed facts in the PSI, the government met its burden to
    show that the firearm was at the site of the drug trafficking offense. Although the
    drug transactions occurred right outside the residence, either Whitt or his
    roommate emerged from the residence to conduct the transactions and then
    immediately returned to the residence. Inside the residence, Whitt and his
    roommate stored enough cocaine for multiple purchases and the baggies used to
    5
    package them. The gun was loaded and was kept in the same room as the cash,
    which it can reasonably be inferred was the proceeds of the drug sales.
    In short, the gun was on the premises where the cocaine base was stored and
    packaged and where the transactions were arranged by telephone. The gun also
    was present in the house while the transactions were completed just outside. These
    facts are sufficient to support a finding that the gun was present at the scene of the
    drug trafficking, even though the gun was not carried outside during a transaction
    and was not found in the same room as the drugs. See United States v. Trujillo,
    
    146 F.3d 838
    , 847 (11th Cir. 1998) (concluding the firearm was present where
    defendant’s loaded gun was found in an office adjacent to the area where the
    cocaine was discovered).
    Thus, the burden shifted to Whitt to show that the connection between his
    loaded firearm in his bedroom and the drug trafficking was clearly improbable.
    Whitt did not meet his burden. Whitt argues that the presence of the gun was
    incidental to the drug trafficking because, as he told investigators, he bought the
    gun for protection because of break-ins in his neighborhood. However, as the
    district court explained, the fact that Whitt purchased the gun for personal safety
    does not mean he would not have used it had someone tried to steal the drugs or
    drug proceeds in his residence. See 
    id.
     (affirming district court’s rejection of
    6
    defendant’s proffered innocent explanation for gun’s presence and finding that gun
    was actually present for security in case anything went wrong during drug deal).
    Thus, Whitt did not show that the connection between the gun and the drug
    trafficking was clearly improbable.
    Accordingly, the district court did not err in imposing the two-level
    enhancement in U.S.S.G. § 2D1.1(b)(1). We affirm Whitt’s 48-month sentence.
    AFFIRMED.
    7
    

Document Info

Docket Number: 11-15458

Citation Numbers: 470 F. App'x 820

Judges: Hull, Kravitch, Per Curiam, Tjoflat

Filed Date: 4/27/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023