U.S. v. Suarez

• Decision Date: 30 August 1990
• Docket Number: No. 90-1052,90-1052
• Citation: 911 F.2d 1016
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Merbi SUAREZ, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1016

911 F.2d 1016

UNITED STATES of America, Plaintiff-Appellee, v. Merbi SUAREZ, Defendant-Appellee.

No. 90-1052

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 30, 1990.

Bob Craig, Lubbock, Tex., (Court-Appointed), for defendant-appellant.

Delonia A. Watson, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.

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

Before GEE, SMITH and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Merbi Suarez (Suarez) and her brother were named in a four-count indictment in which she was charged with possession of 500 grams or more of cocaine with intent to distribute, possession of 50 grams or more of cocaine base with intent to distribute, and use and carrying of a firearm during and in relation to a drug trafficking crime. Pursuant to a plea agreement, Suarez pleaded guilty to the first of those counts, a violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B)(ii) and 18 U.S.C. Sec. 2. In exchange for her guilty plea, the government agreed to dismiss at the time of sentencing the remaining counts against Suarez and all the counts against her brother. The district court accepted Suarez's guilty plea.

At a later sentencing hearing, Suarez received a sentence that included 145 months in prison. In determining this sentence, the district court added two "offense level" increments for the "specific offense characteristic" of possession of a firearm. See United States Sentencing Guidelines (U.S.S.G.) Sec. 2D1.1(b), reprinted in 18 U.S.C.S. App. (1990). Suarez timely appealed the incarceration portion of her sentence. Because we find that the district court mistakenly concluded that it could impose the two "offense level" increments for possession of a firearm without a showing of scienter, we reverse the trial court's ruling on sentencing and remand the case for further proceedings.

I.

Police officers entered an Abilene, Texas, duplex on August 10, 1989, pursuant to a search warrant. Suarez and Ramon Suarez were co-lessees of the duplex, but the latter was not present when the search warrant was executed. When the officers entered the duplex, Suarez and her brother, Teddy Suarez, were each in a different bedroom. Upon entering Suarez's bedroom, the officers found a woman's robe near the bed. In the robe was a "baggie" containing .63 grams of 86% pure cocaine and a glass vial containing another .099 grams of cocaine. The officers also found an unloaded Walther PPKS .380 semi-automatic pistol and its fully loaded clip under the mattress of the bed on which Suarez had been lying when the officers entered the duplex.

From the garden of the duplex the officers exhumed large quantities of cocaine, cocaine base and marijuana. In the kitchen they found additional quantities of controlled substances and a scale of the type commonly used to weigh such substances for illicit distribution. In a utility room cabinet they found two bags of paraffin wax. That wax was the same color as the wax that covered several of the drug packages excavated from the garden.

Suarez admitted that she knowingly and intentionally possessed the controlled substances with intent to distribute.

At Suarez's sentencing hearing on January 5, 1990, Suarez's counsel reiterated his objection to that part of the probation officer's report which added two levels for possession of a firearm. Counsel questioned the probation officer's conclusions (1) that Suarez possessed the pistol at all and, alternatively, (2) that she possessed it in committing the offense. The principal thrust of counsel's objections, however, was the failure of the district court to make a factual determination that Suarez intended to possess the firearm, distinct from its factual determination that she possessed that firearm. In support of his point, counsel for Suarez invited the district court to consider United States v. Burke, 888 F.2d 862 (D.C.Cir.1989).

Before imposing sentence, the district court overruled Suarez's objections and stated:

"I will make a finding that based upon my recollection of the record at the detention hearing, that Ms. Suarez was in actual, constructive possession of a firearm. I also find based on my recollection of the record, that there was a connection between possession of the firearm and the possession of the cocaine."

Counsel for Suarez again objected, not only to the district court's making findings of fact based upon a recollection of what had happened in a previous proceeding, but also to the court's failing to make a factual finding of scienter.

II.

In sentencing guidelines cases, this court employs the clearly erroneous standard in reviewing the factual findings of the district court; we review de novo, however, the district court's purely legal application of the guidelines. United States v. Otero, 868 F.2d 1412, 1413-14 (5th Cir.1989); see 18 U.S.C. Sec. 3742(e).

We find no merit in Suarez's claim that the district court clearly erred in its factual findings that Suarez possessed the firearm and that she did so while committing the drug offense. The operable facts more than suffice to support the district court's ultimate finding of fact that Suarez possessed the firearm. The large caliber automatic pistol and loaded clip were found under the mattress of the bed she was occupying in her own bedroom within the duplex she had been leasing for over four months. That situation is not analogous to an "unloaded hunting rifle in the closet"--the illustration of weapons possession unconnected to the offense which the commentary to 2D1.1(b)(1) states does not increase the base offense level. The facts of Suarez's situation differ significantly from the illustration. Unlike the unloaded rifle in the illustration, Suarez's pistol, as a firearms expert testified, could have been loaded and fired within 1 1/2 to 2 seconds. Furthermore, Suarez possessed a large caliber automatic pistol, not a hunting rifle, and her gun was under the mattress upon which she lay, not in a remote closet.

This court has approved findings of firearms possession in fact situations much more benign than the one in this case. See, e.g., United States v. Hewin, 877 F.2d 3 (5th Cir.1989) ("dinky little gun" in box in back seat of co-defendant's car in which defendant arrested while transporting marijuana); United States v. Otero, 868 F.2d 1412 (5th Cir.1989) (handgun and five rounds of ammunition found in defendant's van parked outside motel room site of cocaine sale and arrest). Other circuits are in accord. See, e.g., United States v. Restrepo, 884 F.2d 1294 (9th Cir.1989) (32 caliber automatic pistol discovered between mattress and box springs of defendant's bed following arrest in another part of house); United States v. Torres, 901 F.2d 205 (2nd Cir.1990) (search of apartment leased to female defendant and shared with male occupant revealed loaded handgun under queen-sized mattress). Suarez can take no comfort from our rejection of firearms possession in United States v. Vasquez, 874 F.2d 250 (5th Cir.1989), wherein a loaded .38 caliber pistol was found in the defendant's bedroom after he had been arrested buying (not selling) drugs several miles from his residence.

The district court was not clearly erroneous in finding that Suarez possessed the pistol under her mattress and that "there was a connection between the possession of the firearm and the possession of the cocaine." Not only was there cocaine in the bedroom in which the gun was possessed at the instant of Suarez's arrest, but cocaine, cocaine base, marijuana, and drug paraphernalia were also found throughout Suarez's duplex and in its garden. Unlike a one-time drug sale, Suarez's crime of possession with intent to distribute involved continuing criminal conduct during which she possessed the pistol at least part of the time. Although the weapon and the crime must be connected temporally and spatially, they need not be connected functionally. Hewin, 877 F.2d at 5. Subject to the issue of scienter discussed below, possession per se "during the commission of the offense" suffices for an upward adjustment, "unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. Sec. 2D1.1(b)(1), comment. (n. 3). See also Hewin, 877 F.2d at 5 (citing Otero, 868 F.2d at 1414-15).

III.

Suarez's contention that scienter is required in order to apply Sec. 2D1.1(b)(1) to a defendant who personally possesses a firearm during a drug offense makes her case res nova to this circuit. ¹ The district court's above quoted statements, made in overruling counsel's objections to the absence of a finding of scienter, confirm that the court made no factual finding that Suarez possessed the pistol "intentionally, recklessly or by criminal negligence." See Burke, 888 F.2d at 870 (quoting U.S.S.G. Sec. 1B1.3(a)(3)).

Suarez relies on Burke, 888 F.2d 862 (D.C.Cir.1989), for the proposition that sentencing courts cannot enhance a defendant's sentence under Sec. 2D1.1(b)(1) absent a showing of scienter. The Burke court noted that, for offenses involving drugs, U.S.S.G. Sec. 2D1.1(b)(1) instructs the court to increase by two levels the base offense level "[i]f a dangerous weapon (including a firearm) was possessed during commission of the offense." Burke, 888 F.2d at 866. That court observed that although Sec. 2D1.1(b) itself is silent as to scienter, "section 1B1.3--which supplies 'general application principles'--is not." Id. The Burke court based its decision on the version of U.S.S.G. Sec. 1B1.3 that was in effect between January 15, 1988, and November 1, 1989. During that time Sec. 1B1.3 provided that "[t]he conduct that is relevant to determining the applicable guideline range includes that set forth below....

(a) ... Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, [and] (ii) specific...