U.S. v. McGhee

• Citation: 882 F.2d 1095
• Decision Date: 18 August 1989
• Docket Number: No. 88-5878,88-5878
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sammy Don McGHEE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1095

882 F.2d 1095

UNITED STATES of America, Plaintiff-Appellee, v. Sammy Don McGHEE, Defendant-Appellant.

No. 88-5878.

United States Court of Appeals, Sixth Circuit.

Argued May 23, 1989.

Decided Aug. 18, 1989.

John W. Gill, Jr., U.S. Atty. and Steven H. Cook, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Chattanooga, Tenn., for the U.S., plaintiff-appellee.

Jerry H. Summers (argued), Summers, McCrea & Wyatt, Chattanooga, Tenn., for Sammy Don McGhee, defendant-appellant.

Before MERRITT and NELSON, Circuit Judges, and LIVELY, Senior Circuit Judge.

DAVID A. NELSON, Circuit Judge.

This is an appeal from a sentence imposed under the new sentencing guidelines following the appellant's conviction on charges involving the possession and distribution of cocaine and phencyclidine (PCP). The appellant's sentence was enhanced by two levels under Sec. 2D1.1(b) of the guidelines because of his possession of firearms during the commission of the offenses. The commentary to this section of the guidelines states that "[t]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense."

The appellant argues, among other things, that he was denied due process of law by being required to show affirmatively that it was "clearly improbable" that the weapons were connected to the offense. He also argues that his Sixth Amendment right to a jury trial was violated, and that even if the enhancement provision is constitutionally sound, there was not sufficient evidence to show that the firearms discovered in his residence were in fact connected to the offense. Finding none of these arguments persuasive, we shall affirm the judgment of the district court.

I

On January 14, 1988, Sammy Don McGhee and a housemate were arrested at the McGhee residence in East Ridge, Tennessee, by officers of the Hamilton County Sheriff's Department. The arrest was the result of Mr. McGhee's purchase of a quantity of cocaine from his daughter, Tammy McGhee Claremont, a government informant who was wearing an electronic surveillance device.

Upon searching the McGhee residence, pursuant to a warrant, the officers found an antiperspirant can with a false bottom containing bags of cocaine and PCP, a chocolate syrup can with a false bottom containing bags of cocaine, cocaine on a tray in the bedroom, electronic scales, triple beam balance scales, a cocaine sifter and an accompanying replacement screen, and several bottles of Inositol, commonly used as a cutting agent for cocaine. The search also turned up eight rifles concealed in a secret compartment in the floor under the living room couch, six handguns in a secret compartment in the living room wall, and a .38 caliber pistol in a safe in Mr. McGhee's bedroom. Ten to fifteen boxes of ammunition were found in various places around the house.

A federal grand jury returned a two-count indictment against Mr. McGhee, charging him with possession of cocaine with intent to distribute it, in violation of 21 U.S.C. Sec. 841(a)(1), and possession of PCP with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Although the McGhee residence might appear to have been a classic drug "fortress," see United States v. Henry, 878 F.2d 937 (6th Cir.1989), Mr. McGhee was never charged with a violation of 18 U.S.C. Sec. 924(c)(1) ("Whoever, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime, be sentenced to imprisonment for five years....").

Before the scheduled trial date, the grand jury returned a superseding indictment that contained four counts. Count one charged Mr. McGhee with having distributed cocaine on April 3, 1987, in violation of 21 U.S.C. Sec. 841(a)(1). This count related to a cocaine sale Mr. McGhee had made to his daughter on that date. The remaining counts, all of which stemmed from the events of January 14, 1988, charged Mr. McGhee with conspiracy to distribute and possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846; possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1); and possession of PCP with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1).

Following a four-day trial, Mr. McGhee was found guilty on all four counts. A sentencing hearing was held on July 27, 1988, after the submission of a pre-sentence report. Because counts two, three, and four related to offenses committed after January 1, 1986, the district court applied the sentencing guidelines to those counts.

The court selected a base offense level of 16, corresponding to the total of 28.3 grams of cocaine and 6.3 grams of PCP found in Mr. McGhee's residence. The base offense level was increased by two points by reason of Sec. 2D1.1(b) of the guidelines, which provides that: "If a firearm or other dangerous weapon was possessed during commission of the [drug] offense, increase by 2 levels." An additional two points were added because, based on his daughter's testimony that she and three other people worked for him, Mr. McGhee was considered to be a leader or organizer.

When the resultant offense level of 20 was cross-indexed with Mr. McGhee's criminal history category of five, the result was a guideline range of imprisonment for 63 to 78 months. The court decided on sentences of 78 months' imprisonment on all three counts. The court then added 33 months under 18 U.S.C. Sec. 3147, in recognition of the fact that the January 14 offenses occurred at a time when Mr. McGhee was out of jail on bond. Mr. McGhee was thus sentenced to serve a 111-month term of imprisonment on counts two, three, and four. On count one, which arose from conduct committed before the guidelines took effect, Mr. McGhee was sentenced to 20 years in prison, to be served concurrently with the sentence imposed for the other three counts. Additionally, the court imposed a $15,200 fine and a six-year term of supervised release.

II

On appeal, Mr. McGhee argues that the firearms enhancement provision of Sec. 2D1.1(b) is unconstitutional as applied to him. Under the commentary accompanying this section, he says, the burden of proof is placed on the defendant to show that the enhancement provision should not be applied. That commentary reads, in part, as follows:

"The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet."

Mr. McGhee claims that the shift in the burden of proof on the probability of a connection between the weapons and the offense runs afoul of the Due Process Clause as interpreted by the Supreme Court in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

In Winship, the court held that even in a juvenile delinquency proceeding the prosecutor must prove beyond a reasonable doubt "every fact necessary to constitute the crime with which [the defendant] is charged." 397 U.S. at 364, 90 S.Ct. at 1073.

Mullaney involved a Maine law under which any felonious homicide was punishable as murder unless the defendant proved by a preponderance of the evidence that the killing was committed "in the heat of passion on sudden provocation;" in that event the crime would be punishable as manslaughter. 421 U.S. at 691-692, 95 S.Ct. at 1885-86. The Supreme Court rejected the government's argument that because the issue did not arise until after the jury had decided whether the defendant was at least guilty of manslaughter, the absence of "heat of passion on sudden provocation" was not a fact necessary to constitute the crime of felonious homicide. Mr. Justice Powell wrote, for a unanimous Court:

"The safeguards of due process are not rendered unavailing simply because a determination may already have been reached that would stigmatize the defendant and that might lead to a significant impairment of personal liberty. The fact remains that the consequences resulting from a verdict of murder, as compared with a verdict of manslaughter, differ significantly. Indeed, when viewed in terms of the potential difference in restrictions of personal liberty attendant to each conviction, the distinction established by Maine between murder and manslaughter may be of greater importance than the difference between guilt or innocence for many lesser crimes.

Moreover, if Winship were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect without effecting any substantive change in its law. It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment." Id. at 698, 95 S.Ct. at 1889.

Mr. McGhee would have us liken the enhancement in punishment for drug offenses where the defendant possesses a firearm to the treatment of felonious homicide as murder where the defendant fails to prove that he acted in the heat of passion on sudden provocation. The analogy, we believe, is flawed. This case differs from Mullaney in that possession of a firearm during the commission of a drug offense may fairly be considered by the court as a factor bearing on the extent of punishment, while the absence of the heat of passion on sudden provocation is more appropriately categorized as one of the elements of the substantive crime, to be established to the satisfaction of the jury beyond a reasonable doubt. Not all factors that bear on punishment need to be proven before a jury.

If Mullaney left any...