U.S. v. Wetwattana, 95-3316

• Decision Date: 22 August 1996
• Docket Number: No. 95-3316,95-3316
• Citation: 94 F.3d 280
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paibool WETWATTANA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 280

94 F.3d 280

UNITED STATES of America, Plaintiff-Appellee, v. Paibool WETWATTANA, Defendant-Appellant.

No. 95-3316.

United States Court of Appeals Seventh Circuit.

Argued April 5, 1996.

Decided Aug. 22, 1996.

Barry Rand Elden, Chief of Appeals, Mark Filip (argued), Office of the U.S. Attorney, Criminal Appellate Division, Chicaco, IL, for Plaintiff-Appellee.

Robert A. Korenkiewicz (argued), Chicago, IL, Joseph R. Lopez, Chicago, IL, for Defendant-Appellant.

Before BAUER, CUDAHY, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Defendant Paibool Wetwattana pled guilty to conspiring to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846. The district court sentenced Wetwattana to 84 months of imprisonment to be followed by 48 months of supervised release. Wetwattana appeals the district court's enhancement of his sentence for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1) and the court's refusal to reduce his sentence for timely acceptance of responsibility under U.S.S.G. § 3E1.1(b). We affirm.

I.

In February of 1993, Wetwattana agreed with Siri Lanpouthakoun, his close friend and business associate, to sell approximately one pound of heroin. Their plan called for Wetwattana to obtain the pound of heroin from sources in Thailand for $60,000, for Lanpouthakoun to find a buyer, and for the two co-conspirators to split the profits of the illegal enterprise. Lanpouthakoun soon found a "buyer," who in fact was an undercover law enforcement officer, and agreed to sell the pound of heroin to the officer for $90,000.

On June 3, 1993, Wetwattana delivered a pound of heroin, along with a small sample of the drug, to Lanpouthakoun. Later that day, Lanpouthakoun brought the sample to the undercover officer, who agreed with Lanpouthakoun to consummate the drug transaction the next day in a room at the La Quinta Motel in Hoffman Estates, Illinois. On June 4, 1993, before the meeting time at the motel, Wetwattana visited Lanpouthakoun's home to discuss the particulars of the drug deal. Lanpouthakoun revealed that he was nervous about the deal and asked Wetwattana to accompany him to the motel. Wetwattana agreed to drive in a separate car to the motel and told Lanpouthakoun that he could be reached during the transaction by pressing a button on a cellular phone that he had given Lanpouthakoun a few days before. During their meeting, Wetwattana also informed Lanpouthakoun that he kept a gun in his car.

Lanpouthakoun drove to the motel, and Wetwattana followed in his own car. The two vehicles separated upon entering the parking lot of the motel. Lanpouthakoun parked behind the motel, grabbed a bag containing the pound of heroin, and was led by an undercover officer into a motel room. Meanwhile, Wetwattana parked his car in a Chili's Restaurant lot adjacent to the motel. Wetwattana maintained surveillance from a space in the lot approximately 100 yards from the room in which the drug transaction was taking place and waited for Lanpouthakoun to bring him $80,000 in cash from the sale of the heroin. ¹

Yet Wetwattana would never realize any profits from the heroin sale. Once Lanpouthakoun exchanged the heroin for the cash and attempted to leave the motel room, he was immediately arrested by the undercover officers. Two officers then arrested Wetwattana, who had remained in his car with the engine running. At the time of his arrest, Wetwattana was sitting in the back seat of the vehicle next to what appeared to be a box of tissues. A subsequent search of the vehicle and the tissue box revealed that the box actually contained a loaded .45 caliber semi-automatic handgun. Customs agents also retrieved a cellular phone from inside the vehicle.

On June 30, 1993, Wetwattana was charged in a three-count indictment with: (1) conspiring to possess with intent to distribute approximately one pound of heroin, in violation of 21 U.S.C. § 846; (2) knowingly and intentionally distributing approximately one pound of heroin, in violation of 21 U.S.C. § 841(a)(1); and (3) using or carrying a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). Wetwattana originally pled not guilty to all three counts, but expressed an intention to plead guilty to the conspiracy count on March 16, 1994, just nineteen days prior to the trial date on April 4th. In the meantime, the government had begun to pretry Lanpouthakoun, who had agreed to testify against Wetwattana. The government had also prepared a Santiago proffer ² in connection with Lanpouthakoun's expected testimony, and had responded to a defense motion to suppress statements made by Wetwattana after his arrest. On March 30, 1994, only five days before trial, the defendant entered a plea of guilty to the conspiracy count, pursuant to a written plea agreement.

At sentencing the district court heard the testimony of several witnesses and considered defendant's arguments regarding the application of various provisions of the Sentencing Guidelines. The court determined that Wetwattana had possessed a handgun during the conspiracy and therefore enhanced his base offense level by two levels, pursuant to U.S.S.G. § 2D1.1(b)(1). With respect to this enhancement, the court found that the handgun in the tissue box was within Wetwattana's reach and that his possession of the gun was related to the drug conspiracy. The district court also determined that Wetwattana was entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a). The court, however, denied Wetwattana an additional one-level reduction under U.S.S.G. § 3E1.1(b)(2), which is available for a defendant who timely notifies authorities of an intention to enter a guilty plea.

II.

Wetwattana first asserts that the district court erred in applying a two-level enhancement for possession of a dangerous weapon pursuant to Sentencing Guideline § 2D1.1(b)(1). The government must prove that this enhancement is warranted by a preponderance of the evidence. United States v. Vold, 66 F.3d 915, 920 (7th Cir.1995); United States v. Mumford, 25 F.3d 461, 465 (7th Cir.1994). We review a district court's factual determination to enhance a sentence under § 2D1.1(b)(1) for clear error only. See, e.g., United States v. Berchiolly, 67 F.3d 634, 640 (7th Cir.1995); United States v. Covarrubias, 65 F.3d 1362, 1370 (7th Cir.1995).

Sentencing Guideline § 2D1.1(b)(1) provides for a two-level enhancement of a defendant's base offense level "[i]f a dangerous weapon (including a firearm) was possessed." Application Note Three to Guideline § 2D1.1 states that "[t]he enhancement for weapon possession reflects the increased danger for 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 to the offense." The government, therefore, is not required to demonstrate a connection between the weapon and the offense. See, e.g., United States v. Montgomery, 14 F.3d 1189, 1199 (7th Cir.1994); United States v. Cantero, 995 F.2d 1407, 1410 (7th Cir.1993). Rather, the government need only prove that the weapon was possessed during the offense of conviction or during related "relevant conduct," as defined in U.S.S.G. § 1B1.3. See, e.g., United States v. Anderson, 61 F.3d 1290, 1303-04 (7th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 543, 133 L.Ed. 2d 446 (1995); Mumford, 25 F.3d at 468-69. ³

Wetwattana confusingly maintains that he did not actually possess the handgun contained in the sealed tissue box, arguing that the gun was inaccessible to him. We note, however, that § 2D1.1(b)(1) does not require actual possession of the weapon by the defendant. Covarrubias, 65 F.3d at 1371; Cantero, 995 F.2d at 1410. Constructive possession of the firearm is also "sufficient to trigger the enhancement." Covarrubias, 65 F.3d at 1371. Possession of an object, whether actual or constructive, exists when a person exercises control over the object. See United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990). ⁴ The evidence in this case clearly shows that Wetwattana possessed a firearm at the time of his arrest. Wetwattana admits that he owned the handgun and that he stored the handgun in the tissue box in his car. Moreover, the arresting agents testified at sentencing that Wetwattana was seated in the rear seat of his car next to the tissue box when he was apprehended. Thus, rather than showing that the handgun was inaccessible to Wetwattana, the record supports the district court's conclusion that the handgun was within his reach and control. ⁵

Wetwattana further argues that the district court erred in enhancing his sentence under § 2D1.1(b)(1) because he did not possess the handgun in proximity to the drug transaction, citing our decisions in United States v. Rodriguez-Nuez, 919 F.2d 461 (7th Cir.1990), and United States v. Edwards, 940 F.2d 1061 (7th Cir.1991). In both of those cases, a defendant was convicted of distributing drugs and a weapon was seized at a location miles away from the site of the specific drug transaction charged in the indictment. This court held that, since § 2D1.1(b)(1) required the defendant to possess the firearm during the offense of conviction, the weapons enhancement could not apply in such situations. Edwards, 940 F.2d at 1064; Rodriguez-Nuez, 919 F.2d at 466-67. ⁶

We need not examine the issue of whether Wetwattana possessed the handgun in sufficient proximity to the drug transaction. Unlike the defendants in Rodriguez-Nuez and Edwards, Wetwattana was convicted of the crime of conspiracy. Thus the enhancement under § 2D1.1(b)(1) is warranted if the weapon was possessed during the course of the conspiracy. See, e.g., Cantero, 995 F.2d at 1412 (finding Rodriguez-Nuez and Edwards inapplicable in conspiracy cases); United States v. Durrive, 902 F.2d 1221, 1232 (7th...