U.S. v. Paulk, 89-1921

• Decision Date: 07 November 1990
• Docket Number: No. 89-1921,89-1921
• Citation: 917 F.2d 879
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Robert PAULK and Darrell Thomas, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 879

917 F.2d 879

UNITED STATES of America, Plaintiff-Appellee, v. James Robert PAULK and Darrell Thomas, Defendants-Appellants.

No. 89-1921.

United States Court of Appeals Fifth Circuit.

Nov. 7, 1990.

Rehearing Denied Jan. 9, 1991.

Gerald A. Banks, Dallas, Tex., for Paulk.

John D. Nation, Dallas, Tex., for Thomas.

Mark L. Nichols, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, REAVLEY and KING, Circuit Judges.

CLARK, Chief Judge:

I.

James Paulk and Darrell Thomas appeal their sentences imposed under the United States Sentencing Guidelines (U.S.S.G.). Paulk and Thomas claim the district court erroneously enhanced their sentences for possession of firearms under U.S.S.G. Sec. 2D1.1(b)(1). Thomas also claims the district court improperly computed his criminal history score under the Guidelines. We affirm Thomas' conviction and sentence, vacate Paulk's sentence and remand for further proceedings.

II.

Paulk and Thomas were indicted along with several co-defendants in a seven count indictment charging a conspiracy to knowingly possess with intent to distribute amphetamine in violation of 21 U.S.C. Sec. 846, distribution, and possession with intent to distribute, both in violation of 21 U.S.C. Sec. 841(a)(1).

A. Paulk

Pursuant to a plea agreement, Paulk plead guilty only to Count 5 charging distribution of amphetamine. Paulk's Guidelines sentence of incarceration was calculated to range from sixty-three to seventy eight months. He received a two level increase in his base offense level under U.S.S.G. Sec. 2D1.1(b)(1) predicated on a finding that he was in possession of a firearm during the commission of the drug offense. Paulk objected to the increase.

The firearm, a .22 caliber pistol, was in the glove compartment of the car Paulk drove to the scene of the drug transaction where he was arrested. At the time of his arrest, Paulk was some distance from the car observing the sale of amphetamine by a co-conspirator to an undercover federal drug enforcement agent. The gun was apparently inoperative and unloaded. Paulk claimed that he put the gun in the glove compartment about a week before his arrest, intending to take it to a gunsmith for repair. Further, Paulk claimed he had forgotten the gun was in the console of his car until it was recovered by the federal agents. The district court overruled Paulk's objection and sentenced him to seventy-eight months incarceration.

B. Thomas

Thomas, also made a plea agreement. He plead guilty only to Count 7 of the Indictment, possession with intent to distribute amphetamine in violation of 21 U.S.C. Sec. 841(a)(1). Thomas' sentence range was calculated under the Guidelines to be from one hundred and thirty months to one hundred and sixty-two months incarceration. As with Paulk, Thomas' base sentence level was increased by two points under U.S.S.G. Sec. 2D1.1(b)(1) for possession of a firearm. Likewise, Thomas objected to the increase.

Thomas was arrested by federal drug enforcement agents on January 29, 1989 in the possession of one quarter pound of amphetamine and handwritten notes indicating drug transactions. At the time of his arrest, Thomas was alone and no gun was found. However, Thomas had been arrested by Texas officials on January 21, 1989, in possession of amphetamines and two handguns. Because Thomas had clearly possessed a firearm during the life of the alleged conspiracy and because co-conspirators possessed guns when arrested, the district court overruled Thomas' objection to the two point increase in his base sentence level.

Thomas also objected to the criminal history score contained in his presentence report. The pre-sentence report noted that Thomas had seven convictions in the State of Texas, both felony and misdemeanor, for which criminal history points had been assigned. The report carried a criminal history score of twelve, counting each of the seven convictions separately. Thomas objected to the separate treatment of several of his convictions. The district court sustained his objection to the separate treatment of two 1982 convictions for possession of marijuana and driving while intoxicated which were consolidated for sentencing. However the court overruled Thomas' objection to the separate treatment of a 1984 conviction for possession of a controlled substance and a 1985 conviction for possession of a controlled substance even though the sentences for these convictions were imposed on the same day and ran concurrently. The district court found that Thomas' base criminal history score was ten and added two points pursuant to U.S.S.G. Sec. 4A1.1(d), resulting in a final score of twelve. Thomas was then sentenced to one hundred and sixty-two months incarceration.

Both Paulk and Thomas appeal their sentences.

III.

Paulk and Thomas raise three issues for review. Both Paulk and Thomas claim that the circumstances of his arrest do not justify the increase in his base sentence level for possession of a firearm pursuant to U.S.S.G. Sec. 2D1.1(b)(1). Thomas asserts that the district court erred in calculating his criminal history score by treating cases which were consolidated for sentencing as separate convictions.

When reviewing sentences imposed under the Guidelines, the "district court's application of the guidelines to the facts" shall be upheld unless they are "clearly erroneous" and will be given "due deference" by this court. 18 U.S.C. Sec. 3742(d). The district court's legal interpretation of the Guidelines are reviewed de novo. United States v. Suarez, 911 F.2d 1016, 1018 (5th Cir.1990).

1. Paulk's Firearm Claim

U.S.S.G. Sec. 2D1.1(b)(1) is a "specific offense characteristic" which allows the district court to increase the base sentence level of a person convicted of drug related offenses by two points "[i]f a firearm or other dangerous weapon was possessed during the commission of the offense." Paulk claims that the district court improperly increased his base sentence level under section 2D1.1(b)(1) because the facts of his arrest do not warrant the increase. The facts are not in dispute. Paulk was arrested some distance from his car as he was watching the sale of amphetamines take place at the car. The pistol could not be fired, was unloaded and was inside the fastened glove compartment of the car. Thus, Paulk argues he did not "possess a firearm or other dangerous weapon" "during the commission of the offense" within the meaning of section 2D1.1(b)(1). Paulk is mistaken.

Application Note 3 to section 2D1.1(b)(1) provides: "the adjustment should be applied if the weapon was present, unless it was clearly improbable that the handgun was connected to the drug transaction." The decision to apply section 2D1.1(b)(1) is essentially a factual determination to be made by the district court and is reviewed under the clearly erroneous standard. The fact that Paulk was arrested some distance from his car is not dispositive. This court has approved the application of section 2D1.1(b)(1) under similar circumstances. In United States v. Otero, we held the district court correctly applied section 2D1.1(b)(1) even though the handgun was found in a defendant's van parked outside the motel room where the cocaine sale and arrest took place. 868 F.2d 1412, 1415 (5th Cir.1989). Paulk was in relative proximity to his car and could have retrieved the gun from the glove compartment without any significant delay.

The inoperable character of the gun is also not dispositive. United States v. Luster, 896 F.2d 1122, 1129 (8th Cir.1990). Section 2D1.1(b)(1) was designed to provide added punishment for those drug offenders who heighten the danger inherent in drug trafficking by possession of dangerous weapons. U.S.S.G. Sec. 2D1.1 (Application Note 3). The mere presence of a handgun can escalate the danger inherent in such situations. Since it is difficult, if not impossible to tell from sight whether a gun is loaded or operational, an unloaded or broken gun may be of use in a criminal act. Flashing an unloaded gun often has the same effect as waving a loaded one. It " '[i]nstills fear in the average citizen' and 'as a consequence ... creates an immediate danger that a violent response will ensue.' " United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989) (quoting McLaughlin v. United States, 476 U.S. 16, 17-18, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986)). Although the gun may not be able to inflict harm, its appearance may evoke it. The district court was not clearly erroneous in finding it not improbable that the handgun was connected with the sale of amphetamine.

Paulk maintained at his pretrial hearing and now contends on appeal that he did not remember the gun was in the glove compartment of his car. He claims that the gun had been there approximately one week and that he forgot about the gun until it was recovered from his car. Paulk was sentenced in September of 1989 under a version of U.S.S.G. Sec. 1B1.3 which this court has recently held imported a scienter requirement into Sec. 2D1.1(b)(1). Suarez, 1019-22 (adopting the holding of United States v. Burke, 888 F.2d 862 (D.C.Cir.1989)). While Sec. 2D1.1(b)(1) does not address the defendant's culpability, the version of Sec. 1B1.3--which sets out "general application principals"--in effect when Paulk was sentenced required possession of the weapon to be "intentional[ ], reckless[ ], or by criminal negligence" Id. (quoting U.S.S.G. Sec. 1B1.3(a)(3)). ¹ The record does not indicate whether the district court considered Paulk's intent, recklessness or criminal negligence in possessing the pistol in overruling Paulk's objection to section 2D1.1(b)(1). We vacate the district court's sentencing determination for further proceedings. We express no opinion about the factual determination of Paulk's culpability in possessing the gun.

2. Thomas' Firearms...