U.S. v. Wheelwright, 90-1304

• Decision Date: 06 September 1990
• Docket Number: No. 90-1304,90-1304
• Parties: UNITED STATES, Appellee, v. John WHEELWRIGHT, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 226

918 F.2d 226

UNITED STATES, Appellee, v. John WHEELWRIGHT, Defendant, Appellant.

No. 90-1304.

United States Court of Appeals, First Circuit.

Heard Sept. 6, 1990.

Decided Oct. 18, 1990.

Dana Alan Curhan, New Bedford, Mass., with whom Barry M. Haight and Buckley, Haight, Muldoon, Jubinville & Gilligan, Milton, Mass., were on brief, for defendant, appellant.

Carolyn Stafford Stein, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, for appellee.

Before BREYER, Chief Judge, VAN GRAAFEILAND, ^* Senior Circuit Judge, and TORRUELLA, Circuit Judge.

BREYER, Chief Judge.

A jury found John Wheelwright (a previously convicted felon) guilty of unlawfully possessing firearms (1) on November 6, 1987, (2) on September 25, 1988, and (3) on August 3, 1989. 18 U.S.C. Sec. 922(g)(1). The district court, applying the Federal Sentencing Guidelines to these convictions, determined that Wheelwright's "offense level" was 17, his criminal history category was III, and the Guidelines therefore called for imprisonment of 30 to 37 months. The court imposed a sentence of 37 months imprisonment and a $50,000 fine. On this appeal, Wheelwright claims the court made various Guideline-related sentencing errors. We have found no legal error. We affirm the district court's judgment. We shall discuss each of appellant's arguments in turn.

1. Drug Offense Cross Reference (1987). We turn first to appellant's unlawful gun possession in November 1987. The district court correctly found the applicable United States Sentencing Guideline (hereinafter, U.S.S.G.) to be the 1987 version of Sec. 2K2.1 entitled "Receipt, Possession, or Transportation of Firearms and Other Weapons by Prohibited Persons." That guideline set forth an offense level of 9. U.S.S.G. Sec. 2K2.1(a). Subsection (c)(1) of that guideline, however, said that if "the defendant used the firearm in committing or attempting another offense," the court should "apply" the guideline applicable to that other offense where doing so would lead to a higher offense level.

The district court determined that the defendant unlawfully "used" the guns in "committing or attempting" a drug offense, namely the offense of possessing less than 25 grams of cocaine with the intent to distribute it. The relevant drug offense guideline sets forth a level of "12" for a person who possesses (with intent to distribute) less than 25 grams of cocaine, and it adds two levels where a gun is possessed during commission of the drug offense. U.S.S.G. Sec. 2D1.1(b)(1). Since the resulting drug offense level (14) was greater than the basic firearm offense level (9) the court used the number "14" not "9" in calculating Wheelwright's ultimate offense level. (Between the time the defendant committed the offense and the time of sentencing, the Guidelines were revised, but the revisions, such as those that increase punishment for the firearms offense, either do not apply to the defendant, or do not significantly affect this case.)

Wheelwright challenges the court's decision to use the drug offense guideline. He claims that the firearm guideline's cross reference language does not apply to him because he did not "use" the guns "in committing or attempting" drug offenses. The record shows, however, that, on the relevant date, November 6, 1987, police officers, searching his house with a warrant, found three plastic freezer bags with cocaine residue, a scale of a type used for drug transactions, a magazine folded in a special way used for drug sales, some marijuana, inositol powder (often used to dilute pure cocaine), $25,000 cash in a couch, and $9,000 cash elsewhere in the house. They also found a loaded shotgun at the foot of the stairs and a loaded rifle, which the appellant was shooting when they entered. The district court obviously believed that those who have drug-related material of this sort in their houses likely sell or distribute drugs, and that drug distributors who have loaded guns nearby are likely to use the guns in "committing or attempting" drug offenses. We see nothing unreasonable about these beliefs. And, we cannot say that a finding that the guns were used to commit drug offenses, based upon strong evidence of drug distribution and readily accessible loaded guns, is "clearly erroneous." United States v. Paulino, 887 F.2d 358, 359 (1st Cir.1989) (appeals court reviews such fact-based determinations under a "clearly erroneous" standard); United States v. Wright, 873 F.2d 437, 443-44 (1st Cir.1989) (same); United States v. Bronaugh, 895 F.2d 247, 251 (6th Cir.1990) (applying clearly erroneous standard to factual determination triggering cross reference provision U.S.S.G. Sec. 2K2.1(c)).

The appellant adds that even if the court was right to apply the drug guideline, it should not have added two levels for possession of the guns. See U.S.S.G. Sec. 2D1.1(b)(1). The language of the firearm guideline cross reference makes clear, however, that the court is to apply the cross-referenced drug "guideline " which includes that guideline's upward adjustment for having guns. U.S.S.G. Sec. 2K2.1(c)(1). We concede that the italicized word appears only in the 1987 version of the Guidelines; that the sentencing court, where the Constitution's ex post facto clause permits, is normally to apply the version of the Guidelines in effect at the time of sentencing, see 18 U.S.C. Sec. 3553(a)(4); and that the newer 1989 Guidelines were in effect when appellant was sentenced. But, this fact does not help appellant. The more recent 1989 version of Sec. 2K2.1(c) adds an additional cross-reference to Sec. 2X1.1 (which then cross-references back to the drug guideline, Sec. 2D1.1) which explicitly states that the court is to apply both the drug guideline's "base offense level" and any "adjustments," such as the gun adjustment, that can be "established with reasonable certainty." U.S.S.G. Sec. 2X1.1(a). While the cross-references are linguistically complex, the policy they embody is simple: The punishment for a defendant who unlawfully possesses both guns and (related) drugs is to reflect both the guns and the drugs.

2. Drug Offense Cross Reference (1988). The appellant repeats the two arguments just discussed in respect to his unlawful possession of guns in 1988. But, the 1988 evidence is very much like the 1987 evidence. Police officers searched appellant's house. They found two plastic bags with cocaine residue, a different kind of scale used to weigh drugs, a jar of inositol, and $16,000 cash. They also found three firearms, including a loaded shotgun readily accessible in a hallway. Again, we cannot say that the district court was "clearly erroneous" in concluding (on the basis of this evidence) that the guns were used in "committing or attempting" drug offenses.

3. Obstruction of Justice. Guideline Sec. 3C1.1 instructs the sentencing court to add two offense levels if "the defendant willfully impeded or obstructed ... justice during the investigation or prosecution" of the offense. The district court, applying this guideline, added two additional levels to the drug guideline's 14 levels because, in its view, the appellant obstructed justice by intimidating a witness, Norman McKinnon. McKinnon provided the state police with information that led to their initial November 1987 search of appellant's home. Soon after McKinnon did so, several men (whom McKinnon would not name) beat him badly. Subsequently, he received threats, usually just before he was scheduled to appear as a witness in a court proceeding against the appellant, and he was beaten on two other occasions just before he was supposed to testify. Appellant argues that this evidence does not show that he was behind the threats and beatings. In our view, however, the timing and the pattern of the threats and the beatings would permit a sentencing court to find "by a preponderance of the evidence," United States v. Wright, 873 F.2d at 441, that appellant was involved. That is to say, we cannot say that the district court's finding is "clearly erroneous." See United States v. Brown, 900 F.2d 1098, 1103 (7th Cir.1990) (reviewing finding that defendant had obstructed justice under clearly erroneous standard); United States v. Christman, 894 F.2d 339, 342 (9th Cir.1990) (same).

In reaching this conclusion we have taken account of appellant's claim that the district court should not have believed McKinnon's testimony. But, matters of credibility are normally for the trial court, not this court, to decide. Scarpa v. Murphy, 806 F.2d 326 (1st Cir.1986). In any event, McKinnon's story is not inherently incredible. And, it was corroborated by a police officer who himself saw rope burns on McKinnon's face.

We have also noticed that the application notes to the 1987 obstruction guideline say that "suspect testimony and statements should be evaluated in a light most favorable to the defendant." U.S.S.G. Sec. 3C1.1, comment. (n.2). We think the statement most likely refers, not to "suspicious" testimony, but rather to testimony given by a "suspect," i.e., by the defendant himself in court under circumstances where a judge might (after conviction) find it tempting to impose an "obstruction" increase on the ground that the defendant had lied on the witness stand. The statement may caution the courts to give the defendant the benefit of the doubt in such circumstances. If that is what it means, the statement is inapplicable here. Even if the statement means that "suspicious" testimony should be interpreted in defendant's favor, we would reach the same result. Whether or not testimony was "suspicious" would be a matter for the district court in the first instance. And, we cannot say that the district court had to find McKinnon's testimony "suspicious" enough to require a different result. (We note that the Sentencing Commission in its 1990 Guidelines has removed the statement from the commentary to Sec. 3C1.1.)

4. Acceptance of Responsibility. The...