U.S. v. Gilbert

• Decision Date: 24 July 2007
• Docket Number: No. 06-CR-106-1-LRR.,06-CR-106-1-LRR.
• Citation: 496 F.Supp.2d 1001
• Parties: UNITED STATES of America, Plaintiff, v. Linda Darcell GILBERT, Defendant.
• Court: U.S. District Court — Northern District of Iowa

Page 1001

496 F.Supp.2d 1001

UNITED STATES of America, Plaintiff, v. Linda Darcell GILBERT, Defendant.

No. 06-CR-106-1-LRR.

United States District Court, N.D. Iowa, Cedar Rapids Division.

July 24, 2007.

Charles J. Williams, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.

SENTENCING MEMORANDUM

READE, Chief Judge.

                TABLE OF CONTENTS
                I.  INTRODUCTION 
                II.  RELEVANT PROCEDURAL BACKGROUND 
                III.  THREE-STEP PROCESS 
                IV.  THE ISSUES 
                V.  ADVISORY SENTENCING GUIDELINES RANGE 
                A.  Possession of Three or More Firearms — USSG § 2K2.1(b)(1)(A) .....
                B.  Possession of a Destructive Device — USSG § 2K2.1(b)(3)(B) .......
                C.  Possession of a Stolen Firearm — USSG § 2K2.1(b)(4) ............. 
                D.  Possession of a Firearm in Connection with Another Felony Offense —
                USSG § 2K2.1(b)(5) ..................................................
                1.  21 U.S.C. § 856: General principles ...............................
                2.  21 U.S.C. § 856(a)(1): Defendant's purpose ........................
                3.  21 U.S.C. § 856(a) (2): Family members' purposes ..................
                4.  Conclusion .............................................................
                VI.  DISPOSITION ......................................................................
                

I. INTRODUCTION

The matter before the court is the sentencing of Defendant Linda Darrell Gilbert.

II. RELEVANT PROCEDURAL BACKGROUND

On August 15, 2006, Defendant was charged with her husband, Robert Earl Cole ("Robert Cole"), and her son, Paul Matthew Gilbert ("Paul Gilbert"), in a five-count Indictment. Defendant was only charged in Count 1 of the Indictment.

Count 1 charged that, on about March 25, 2004, Defendant and Robert Cole possessed a firearm, that is, a weapon made from an Iver Johnson Champion model 12 gauge shotgun, no serial number, which had a barrel of less than 18 inches in length and an overall length of less than 26 inches, not registered to either of them with the National Firearms Registration and Transfer Record ("the Shotgun"). The government alleged that Defendant possessed the Shotgun in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871.

On October 19, 2006, a unanimous federal jury found, beyond a reasonable doubt, Defendant guilty of Count 1.¹

On June 5, 2007, the United States Probation Office filed a Presentence Investigation Report ("PSIR"). On June 12, 2007, the government and Defendant filed their respective sentencing memoranda.

On June 20 and July 24, 2007, the court held a sentencing hearing ("Hearing").² Assistant United States Attorney Stephanie M. Rose represented the government. Attorney Dennis E. McElvie represented Defendant, who was personally present.

At the Hearing, the court pronounced sentence in a manner consistent with the instant Sentencing Memorandum. The instant Sentencing Memorandum is designed to provide a more detailed understanding of the court's reasoning on some of the legal issues in the case. It is not comprehensive and should be read in conjunction with the record the court made at the Hearing.³

III. THREE-STEP PROCESS

The Sentencing Guidelines are no longer mandatory. United States v. Haack, 403 F.3d 997, 1002 (8th Cir.) (discussing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)), cert. denied, 546 U.S. 913, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). They are advisory. Id. The Eighth Circuit Court of Appeals has explained that, in the post-Booker world, "there are essentially three steps to determining an appropriate sentence." United States v. Sitting Bear, 436 F.3d 929, 934 (8th Cir.2006).

First, the district court should determine the applicable Sentencing Guidelines range without consideration of any [Sentencing] Guidelines departure factors, because the [Sentencing] Guidelines remain an important sentencing factor. See 18 U.S.C. § 3553(a)(4). Second, the district court, where appropriate, should consider the departure provisions contained in Chapter 5, Part K and/or § 4A1.3 of the [Sentencing] Guidelines, as those sentencing provisions have not been excised by Booker. The resulting range is the post-Booker advisory [Sentencing] Guidelines range. Third, the district court should consider the rest of the § 3553(a) factors in determining whether to impose the "Guidelines sentence" as determined in the prior steps or a "non-Guidelines sentence" driven by the other § 3553(a) considerations, and sentence the defendant accordingly. Haack, 403 F.3d at 1003; see also United States v. Denton, 434 F.3d 1104, 1114 (8th Cir.2006) (reviewing the sentence imposed by the district court under the three-part Haack methodology).

Id. at 934-35. At the Hearing, the court adhered to this three-step process. The so-called presumption of reasonableness that attends to the advisory Sentencing Guidelines range in the Eighth Circuit Court of Appeals played no part in the court's analysis. See Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007) ("[T]he presumption applies only on appellate review.").

IV. THE ISSUES

At the Hearing, the parties litigated a number of issues, including but not limited to: whether the court should apply (1) a two-level enhancement, pursuant to USSG § 2K2. 1(b)(1)(A) (2004),⁴ because Defendant possessed three or more firearms; (2) a twolevel enhancement, pursuant to USSG § 2K2. 1(b)(3)(B), because Defendant possessed a destructive device; (3) a two-level enhancement, pursuant to USSG § 2K2. 1(b)(4), because Defendant possessed a stolen firearm; and (4) a fourlevel enhancement, pursuant to USSG § 2K2. 1(b)(5), because Defendant possessed a firearm in connection with another felony offense.

At the Hearing, the court resolved these four issues, as well as others not discussed herein. To the extent necessary, the court made factual findings under a preponderance-of-the-evidence standard. See United States v. Bah, 439 F.3d 423, 426 n. 1 (8th Cir.2006) ("[J]udicial fact-finding using a preponderance[-] of[-]the[-]evidence standard is permitted provided that the [Sentencing Guidelines] are applied in an advisory manner."). The government bore the burden of proof on all four issues. See United States v. Flores, 362 F.3d 1030, 1037 (8th Cir.2004) (stating that the government bears the burden to prove sentencing enhancements).

V. ADVISORY SENTENCING GUIDELINES RANGE

A. Possession of Three More Firearms — USSG § 2K2.1(b)(1)(A)

In relevant part, USSG § 2K2.1(b)(1)(A) provides for a two-level increase to a defendant's base offense level, "if the offense involved" between three and seven firearms. USSG § 2K2. 1(b)(1)(A). Further, the Commentary explains:

For purposes of calculating the number of firearms under subsection (b)(1), count only those firearms that were unlawfully sought to be obtained, unlawfully possessed, or unlawfully distributed, including any firearm that a defendant obtained or attempted to obtain by making a false statement to a licensed dealer.

Id., cmt. (n. 6). "`Possession may be actual or constructive, joint or sole.'" United States v. Dass, 178 Fed.Appx. 992, 996 (11th Cir.2006) (quoting United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004)); of United States v. Meads, 479 F.3d 598, 600-01 (8th Cir.2007) (reaffirming standard jury instruction regarding possession), petition for cert. filed, ___ U.S.L.W. ___ (2007); United States v. Balanga, 109 F.3d 1299, 1302 (8th Cir. 1997) (affirming conviction under 18 U.S.C. § 922(g)(1) on theory of constructive possession). In determining how many firearms were involved in the offense, the court may generally consider offense conduct and relevant conduct. USSG § 1B1.3; see, e.g., United States v. Birk, 453 F.3d 893, 899 (7th Cir.2006).

At the Hearing, the court found by a preponderance of the evidence that, when law enforcement officers raided a threelevel residence at 373 Eighteenth Street SE, Cedar Rapids, Iowa ("the House"), on March 25, 2004, Defendant unlawfully possessed three firearms: (1) the Shotgun, (2) a Federal Ordnance, .45 caliber pistol, Government Model, Serial Number F8902557 ("the .45") and (3) a Smith & Wesson, .22 caliber pistol, Model 422, Serial Number TBL7761 ("the .22"). The House was Defendant's residence, and law enforcement officers found all three firearms in the House's second-level master bedroom. They found the Shotgun under Defendant's bed, the .45 under a pillow on the bed and the .22 near the bed in an armoire. All three firearms were found in areas over which Defendant had, at the very least, common control and authority. See United States v. Wells, 469 F.3d 716, 721 (8th Cir.2006) (holding that the district court did not clearly err in applying a USSG § 2K2.1(b)(1) enhancement, where the defendant knew about and had control over firearms in a house); cf. United States v. Boykin, 986 F.2d 270, 274 (8th Cir.1993) (holding that there was sufficient evidence to find that a defendant used a firearm in connection with a drug trafficking crime, in violation of 18 U.S.C. § 924(c), where the law enforcement officers found firearms in various places in a bedroom that the defendant shared with his wife).⁵

It is of no moment that Defendant was not charged with or convicted of possessing the .22 and the .45. Cf. United States v. No Neck, 472 F.3d 1048, 1055 (8th Cir. 2007) (stating that "[a]cquitted conduct may be used for sentencing purposes if proved by a preponderance of the evidence"); United States v. Dennis, 926 F.2d 768, 769 (8th Cir.1991) (per curiam) (holding that the district court did not clearly err when it increased the defendant's offense level for distributing six firearms, pursuant to USSG 2K2. 1(b)(1)(B), even though the defendant was only convicted of possessing one firearm). Defend...