U.S. v. Hooten

• Decision Date: 10 September 1991
• Docket Number: No. 90-8566,90-8566
• Citation: 942 F.2d 878
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David HOOTEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 878

942 F.2d 878

UNITED STATES of America, Plaintiff-Appellee, v. David HOOTEN, Defendant-Appellant.

No. 90-8566.

United States Court of Appeals Fifth Circuit.

Sept. 10, 1991.

Rehearing Denied Oct. 15, 1991.

Walter M. Reaves, West, Tex. (Court Appointed), for defendant-appellant.

Michael W. McCrum, LeRoy M. Jahn, John Phinizy, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before KING and DUHE, Circuit Judges, and SCHWARTZ, District Judge ¹:

KING, Circuit Judge:

David Hooten appeals his sentence imposed by the district court after he entered a guilty plea to the charge of conspiracy to manufacture amphetamine. He contends that the district court improperly adjusted his sentence contrary to Fed.R.Crim.P. 32(c) and the federal sentencing guidelines, and that the government breached its plea agreement. We remand for resentencing in accordance with this opinion.

I. BACKGROUND

Hooten became involved in a methamphetamine production scheme after meeting Alan Ray Molloy. Molloy told Hooten he was looking for a place to set up a methamphetamine lab. Hooten agreed to help Molloy find a place to produce methamphetamines. Hooten arranged for Molloy to set up the lab in San Saba, Texas, on property that Sidney Stewardson leased from his father. When Hooten, Molloy, and Edward McDaniels arrived at the property Stewardson directed them to a hunting cabin, where they produced approximately three pounds of methamphetamine. Molloy gave Hooten $1,000 for his assistance and left for Fort Worth. Several days later, on March 11, 1990, Hooten, Molloy, and McDaniels returned to San Saba to make more methamphetamine. This time, they set up the lab in a shed approximately 300 yards behind Stewardson's residence. The next day, law enforcement agents from the DEA, Texas Department of Public Safety, the Lampasas and San Saba Sheriff's offices, and the San Saba Police Department obtained and executed a search warrant on Stewardson's property. The agents found significant quantities of phenylacetone and amphetamine, as well as drug processing equipment, in various locations on the property. In addition, the agents discovered a handgun under a pillow on the back porch of Stewardson's residence. Hooten and others were arrested as they emerged from an unspecified building on the property.

A federal grand jury for the Western District of Texas indicted Hooten on one count of conspiracy to manufacture amphetamine on March 20, 1990. Hooten entered a guilty plea to this charge and submitted to a presentence investigation. In the presentence report (PSR), the probation officer recommended that the court apply U.S.S.G. § 2D1.1(b)(1) in computing Hooten's offense level for sentencing purposes. This section of the sentencing guidelines suggests a two-level increase from the base level offense if either the defendant or a codefendant possessed a dangerous weapon during the commission of a drug offense Hooten objected to the application of this enhancement factor to his case. During the sentencing proceedings on September 25, 1990, the court asked the government to respond to the objection by stating the evidence in support of a finding that Hooten was in possession of a firearm for sentencing purposes. After the government's presentation, the court summarily overruled Hooten's objection and applied the enhancement factor. Hooten also objected to the PSR recommendation that the court deny a downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) because of Hooten's failure to comply with the conditions of his bond. Nevertheless, the court considered the noncompliance and refused to apply this factor to reduce his sentence. This appeal followed.

II. ANALYSIS

Hooten challenges his sentence on three grounds. First, Hooten argues that the district court increased his offense level for possession of a firearm without making specific findings required under both Fed.R.Crim.P. 32(c)(3)(D) and U.S.S.G. § 2D1.1(b)(1) on the following controverted issues: (1) whether the gun was "present," (2) whether Hooten "possessed" the gun, and (3) whether Hooten could have reasonably foreseen possession of the gun by a co-conspirator. Second, Hooten asserts that the district court impermissibly considered his failure to comply with the conditions of his bond when it refused to find he had accepted responsibility for his criminal conduct. Third, Hooten claims that the government breached its plea agreement by neglecting to inform the court of his cooperation after arrest.

We review the district court's action to determine whether the district court was clearly erroneous in imposing a sentence. In addition, we examine de novo the district court's purely legal application of the sentencing guidelines. United States v. Rodriguez, 925 F.2d 107, 109 (5th Cir.1991); United States v. Suarez, 911 F.2d 1016, 1018 (5th Cir.1990). We consider each of his challenges separately below.

A. Possession of a Dangerous Weapon

1. Federal Rule of Criminal Procedure 32

Federal Rule of Criminal Procedure 32 governs the contents, disclosure, and application of presentence investigations, as well as other information pertinent to the imposition of a guidelines sentence. In Burns v. United States, --- U.S. ----, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), the Supreme Court recently reconfirmed that the rule assures the "focused, adversarial development of the factual and legal issues relevant to determining the appropriate Guidelines sentence." ² The rule performs this function by providing the parties with the opportunity to comment on the probation officer's findings and recommendation, as well as on other factors that the court may take into account in sentencing. ³ Of crucial importance to this case, the rule also requires the court either to make specific findings as to all contested facts contained in the PSR that the court finds relevant in sentencing, or determine that those facts will not be considered in sentencing. ⁴ In this manner, "Rule 32 serves the twin goals of obtaining a fair sentence based on accurate information and obtaining a clear record of the resolution of disputed facts." United States v. Smith, 844 F.2d 203, 206 (5th Cir.1988). See also United States v. Engs, 884 F.2d 894, 895-96 (5th Cir.1989) (emphasizing the continuing importance of accurate PSR material in assessing parole status).

Hooten contested the PSR's conclusion that his sentence should be increased according to the guidelines because "a handgun was found on the back porch of the residence near the shed where the amphetamine was being manufactured." At sentencing, he claimed that he had no knowledge that the gun existed, nor that a gun was involved in the offense. He adds further that the PSR contained no evidence of who owned or exercised control over the gun. Although he brought the fact of knowledge into issue, the district court neglected to make a specific finding on knowledge, nor did it indicate that knowledge of the gun's presence would not be considered in imposing the sentence. The district court also failed to address Hooten's contentions that the gun was not found near him or any of his possessions, and that the residence in which it was found was not his. Further, the PSR contains no evidence of gun ownership or control. The court's summary refusal to address Hooten's objections leaves an ambiguous premise for increasing his sentence on this ground. We cannot resolve this ambiguity on review. Such an endeavor "would require precisely the sort of second-guessing Rule 32(c)(3)(D) is designed to prevent." United States v. Lawal, 810 F.2d 491, 492-93 (5th Cir.1987). Therefore, we must remand so that the district court can state clearly the basis for its sentencing determination in compliance with the mandate of Rule 32.

2. Sentencing Guidelines

The sentencing guidelines echo the concern of Fed.R.Crim.P. 32(c)(3)(D) by requiring the court to make factual findings on any disputed issue arising from the PSR, or determine that the disputed information will not affect the sentence. United States v. Johnson, 935 F.2d 47, 50-51 (4th Cir.1991). Hooten asserts that the district court did not comply with this requirement because it failed to explain its decision to overrule his objection to the PSR's allegation that he possessed the gun pursuant to § 2D1.1(b)(1) of the sentencing guidelines.

Section 2D1.1(b)(1) allows for a two-level increase in the base offense level "[i]f a dangerous weapon (including a firearm) was possessed during commission of the offense." The commentary to this guideline explains that the "adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." ⁵ Its inclusion as an enhancement factor "reflects the increased danger of violence when drug traffickers possess weapons." ⁶

Courts have developed a standard inquiry to determine whether § 2D1.1(b)(1) applies to a particular case. The government must prove weapon possession by a preponderance of the evidence before the court can apply this factor to increase a sentence. U.S. v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir.1990). The government can prove possession in two ways. First, the government can prove that the defendant personally possessed the weapon by showing that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant. Suarez, 911 F.2d at 1018. Generally, the government must provide evidence that the weapon was found in the same location where drugs or drug paraphernalia are stored or where part of the transaction occurred. See, e.g., United States v. McKeever, 906 F.2d 129, 134 (5th Cir.1990) (possession found because house where guns and drug processing materials were stored became part of the situs of the offense); United...