U.S. v. Bothun, 04-1388.

• Decision Date: 15 September 2005
• Docket Number: No. 04-1388.,04-1388.
• Citation: 424 F.3d 582
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Aric R. BOTHUN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

424 F.3d 582

UNITED STATES of America, Plaintiff-Appellee, v. Aric R. BOTHUN, Defendant-Appellant.

No. 04-1388.

United States Court of Appeals, Seventh Circuit.

Argued February 16, 2005.

Decided September 15, 2005.

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Timothy M. O'Shea (argued), Elizabeth Altman, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Robert T. Ruth (argued), Madison, IN, for Defendant-Appellant.

Before EASTERBROOK, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

Aric Bothun got more than he bargained for when he returned to the border checkpoint near El Paso, Texas, to find out why his friend, Jacob Johnson, had not yet passed through. When he reached the border, he found Johnson and then some. Law enforcement agents had stopped Johnson, who was driving Bothun's truck and trailer, and had found 80 grams of a mixture containing methamphetamine, some marijuana, and $32,543 in cash. Both Johnson and Bothun were arrested. After a grand jury indicted Bothun, he pleaded guilty to one count of attempting to possess with the intent to deliver 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 846.

In this appeal, Bothun raises two challenges to the way that the district court applied the U.S. Sentencing Guidelines in determining his sentence; he also asserts that his Sixth Amendment rights were violated when his sentence was increased based on judicially found facts, under then-mandatory Guidelines. We find no error in the application of the Guidelines, but Bothun is entitled to a limited remand under United States v. Paladino, 401 F.3d 471 (7th Cir.2005), for a determination whether the district court would impose a different sentence under the now-advisory guidelines. See United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I

Months before Bothun's capture at the border, the Drug Enforcement Administration (DEA) received information from an informant about Bothun's drug activities that eventually led to the DEA's search and seizure of 75.3 grams of methamphetamine from Bothun's mailbox at a Mailboxes Etc. store. After obtaining a search warrant covering both Bothun's Edgerton, Wisconsin, home and two storage units leased to him, the DEA conducted a search and found a wealth of drugs, drug paraphernalia, and guns.

At Bothun's home the DEA agents discovered a .22 caliber rifle and ammunition in a child's bedroom. The agents also found marijuana, pharmaceutical bottles, needles, syringes, mailing labels, and other drug paraphernalia in the home. In the attic above Bothun's workshop, which was attached to his garage, the agents found two rifles and a shotgun, more marijuana and methylenedioxyamphetamine. In the Madison storage unit, the agents found a .40 caliber semiautomatic handgun, a digital scale, 83.8 grams of Oxycodone, 2.02 grams of Hyrcodone, and marijuana. Finally, at Bothun's storage locker in Edgerton, the agents found 7,646 grams of marijuana.

In July 2003, following his arrest in Texas, a grand jury indicted Bothun in a two-count indictment charging him with violations of 21 U.S.C. § 846 for conspiring to possess with intent to distribute more than 50 grams of methamphetamine and attempting to possess with intent to distribute more than 50 grams of methamphetamine. Bothun pleaded guilty to Count Two in October 2003.

In the fall of 2003, while incarcerated at the Dane County Jail awaiting sentencing, Bothun made several calls to his wife, during which he instructed her how to manufacture methamphetamine. Bothun indicated that he would send her a letter with a "recipe" describing how to cook "cake and stuff." He also had his wife speak to another inmate, known as Country, to whom Bothun referred as his "chemist buddy"; Country also offered Ms. Bothun some tips on how to manufacture methamphetamine. Bothun told his wife to "hit" various Wal-Marts each day to purchase the ingredients and slowly build up a stock of cold medicine that could be converted into methamphetamine.

In February 2004, the district court sentenced Bothun to 235 months' imprisonment based on its finding that Bothun was responsible for possessing with intent to distribute at least 3,000 but not more than 10,000 kilograms of marijuana equivalent. (The Drug Equivalency Tables that follow U.S.S.G. § 2D1.1 translate most common drugs into an equivalent amount of marijuana, to facilitate comparisons. Under the table, one gram of methamphetamine equals two kilograms of marijuana; one gram of what is called methamphetamine (actual)—meaning the weight of the pure substance in a mixture—equals 20 kilograms of marijuana.) The court increased his sentence by two levels under U.S.S.G. § 2D1.1(b)(1) because it found that he possessed a gun in connection with a drug offense. The court found that the government had met its burden of showing that the guns found at Bothun's home and storage locker were used in connection with his drug distribution. Bothun objected to the application of the gun enhancement on the ground that the government had not shown that he actually possessed the weapons or that he was present in the home or storage facilities when the guns were there, but the court was not persuaded. The court also determined that Bothun should not receive a reduction for acceptance of responsibility because of his efforts (along with those of Country) to have his wife continue to manufacture methamphetamine while he was incarcerated.

II

A

Bothun's first argument on appeal is that the district court erred in enhancing his sentence by two levels for possession of a weapon in connection with a drug crime, because (he asserts) the evidence did not permit a finding that he had direct or constructive possession of the weapons found in his home. The government never offered physical proof that he had touched any of the guns, nor did it introduce testimonial evidence from its informants that he had used the weapons. Finally, according to Bothun, the government failed to prove that he exercised the type of control over the weapons that would be necessary for a finding of constructive possession. Post-Booker we continue to review the court's application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Turner, 400 F.3d 491, 500 (7th Cir.2005); see also United States v. Garcia, 413 F.3d 201, 221-24 (2d Cir.2005) (explaining why and how the clear error standard of review for factual findings applies even though the ultimate issue is reasonableness).

The application note to § 2D1.1(b)(1) instructs a court to apply this provision "if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." § 2D1.1, cmt. n. 3. This determination requires that the government first prove by a preponderance of the evidence that the defendant possessed the gun. United States v. Corral, 324 F.3d 866, 872 (7th Cir.2003). If the government is able to do so, the burden shifts to the defendant to show that it was "clearly improbable" that the weapon was connected to the offense. Id. "Actual possession of the firearm need not be established in order to trigger the enhancement. Instead, proof of constructive possession, that is, that the defendant had the power and the intention to exercise dominion or control of the firearm, is sufficient to warrant the enhancement." Id. (quoting United States v. Thomas, 294 F.3d 899, 906 (7th Cir.2002)).

The government met its initial burden. We described earlier the many firearms that the agents found when they searched Bothun's home and storage units. Those weapons were found close by drugs and drug paraphernalia. As we have explained before, "guns found in close proximity to drug activity are presumptively connected...