U.S. v. Wyatt

• Decision Date: 03 December 1996
• Docket Number: No. 95-3490,95-3490
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael E. WYATT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 241

102 F.3d 241

UNITED STATES of America, Plaintiff-Appellee, v. Michael E. WYATT, Defendant-Appellant.

No. 95-3490.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 27, 1996.

Decided Dec. 3, 1996.

Andrew B. Baker, Jr. (argued), Office of the United States Attorney, Dyer, IN, for Plaintiff-Appellee.

Suzanne Philbrick (argued), Portage, IN, for Defendant-Appellant.

Before CUMMINGS, EASTERBROOK and EVANS, Circuit Judges.

CUMMINGS, Circuit Judge.

A jury convicted Michael Wyatt for being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was subsequently sentenced to 120 months' imprisonment. In this appeal, Wyatt contends that his conviction violated his rights under the Double Jeopardy Clause of the Fifth Amendment because his possession of firearms had previously been used as one of the bases for revoking a two-year term of supervised release that he was serving in connection with a prior criminal conviction. ¹ Wyatt also contends that the district court committed clear error when it found that he possessed the firearms "in connection with" another felony offense and increased his base offense level by four levels pursuant to United States Sentencing Guideline § 2K2.1(b)(5). We affirm.

I. BACKGROUND

In March 1994, the LaPorte County, Indiana, Police Department was conducting surveillance of Ray Tejeda, a suspected distributor of marijuana. Wyatt had also been a subject of the department's surveillance periodically for a number of years. On March 5, 1994, the police observed Tejeda and another individual visit Wyatt's house. The police watched them enter the house, and they watched the house until Tejeda, the other individual, and Wyatt left. Tejeda and the other person left in one car; Wyatt left in another. The police stopped Wyatt on an outstanding warrant. Wyatt had $3,500 in his pocket; however, no marijuana or weapons were found in his possession or in his vehicle. Subsequently, a warrant for the search of Wyatt's home was obtained and executed.

Wyatt's residence was a small house with two bedrooms, a bathroom, kitchen, and living room on one floor and a basement. The master bedroom contained a waterbed, dresser and a safe. The police found a .22 caliber M-100 Calico short-barreled rifle on the floor under the overhang at the foot of the waterbed, which was about eight feet from the entrance of the room. The rifle had a 100-round magazine that was about half-full. Instead of the standard 16.1 inch barrel, the M-100 had a 5 1/4 inch barrel that was threaded to fit the two silencers which were found in a box on top of the dresser in the bedroom. The police also found a five-shot .38 caliber handgun concealed under some clothes or a box on a shelf in the master bedroom closet. The handgun was loaded with four rounds of ammunition. Both firearms were described by the police officer who found them as dusty and very unclean. He also stated that it appeared as if they had not been moved for some period of time. In addition to the firearms, the police found 559 rounds of ammunition of various calibers. About 80 percent of the ammunition fit the two weapons found in the bedroom. The safe in the master bedroom contained Wyatt's personal papers.

About two to three feet outside the entrance to the master bedroom sat a rolltop desk. In and on top of the rolltop desk, the officers found zip-lock plastic bags of a type used to package marijuana. The police also found two notebooks and several single sheets of paper in the rolltop desk. The officer who found these items testified that they appeared to be drug transaction records. Although no marijuana was found in the house, Wyatt subsequently admitted to engaging in drug transactions in his home.

At his trial, Wyatt attempted to establish through the testimony of one of his former wives, Jane Wright, that he did not possess the firearms. Wright testified that she lived in Wyatt's house, along with Wyatt's ten-year-old son, from August 1993 (while Wyatt was still in prison) to March 1994. Wright stated that following Wyatt's release from prison, he would come by the house to visit his son and would stay at the house on occasion. She testified that he would stay in the living room. According to Wright, she occupied the master bedroom and her understanding with Wyatt was that he would not go into the bedroom unless she was present and he had her permission. Wright also stated that the bedroom door had a padlock and she always kept it locked whenever she left the house. She left the house two to four times per month to go to Peru, Indiana to visit her family; and, she was out of town the day police arrested Wyatt and searched his house. When she returned the next day, she found that the lock and latch were not on the door; however, she was unaware of any damage having been done to the door. ² She stated that she did not know if Wyatt had a key to the lock. With respect to the firearms that were seized, Wright testified that she put the M-100 rifle under the overhang of the waterbed and she put the handgun in the closet on the top shelf. On cross-examination, she acknowledged that the guns belonged to Wyatt and that he knew they were in the bedroom. She also acknowledged that the padlock was on the door when she first moved into the house in 1993 and that she obtained her key from Wyatt. She had no knowledge as to the number of keys in existence that opened the lock. Finally, she testified that she had no knowledge of who may have been in the house when she was out of town or what Wyatt may have done in the house at such times.

The jury was unpersuaded, and convicted Wyatt of being a felon in possession of firearms. Following a sentencing hearing, the district court imposed a sentence of 120 months' imprisonment. Wyatt's sentence reflected, among other things, a 4-level enhancement under § 2K2.1(b)(5) of the sentencing guidelines because the district court determined that he possessed the firearms in connection with his distribution of marijuana. Wyatt attacks that determination as unsupported by the evidence. He also challenges his conviction as constitutionally infirm under the Double Jeopardy Clause.

II. ANALYSIS

Double Jeopardy

Wyatt failed to present his double jeopardy argument to the district court; accordingly, we review for plain error. ³ United States v. Penny, 60 F.3d 1257, 1261 (7th Cir.1995), certiorari denied, --- U.S. ----, 116 S.Ct. 931, 133 L.Ed.2d 858.

Wyatt's argument that his prosecution for being a felon in possession violated his rights under the Double Jeopardy Clause because that same conduct served as a basis for revoking his supervised release, is one that has been considered and rejected by the Fourth, Ninth, and Tenth Circuits. See, e.g., United States v. Woodrup, 86 F.3d 359 (4th Cir.1996), certiorari denied, --- U.S. ----, 117 S.Ct. 332, 136 L.Ed.2d 245; United States v. Soto-Olivas, 44 F.3d 788 (9th Cir.1995), certiorari denied, --- U.S. ----, 115 S.Ct. 2289, 132 L.Ed.2d 290; United States v. Acuna-Diaz, 1996 WL 282262 (10th Cir.1996) (unpublished decision adopting the Ninth Circuit's reasoning in Soto-Olivas ). In accord with our sister circuits, we also reject the argument.

The Double Jeopardy Clause provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. C ONST. AMDT. 5. The Supreme Court has repeatedly explained that " 'the Clause serves the function of preventing both successive punishment and successive prosecution.' " Witte v. United States, --- U.S. ----, ----, 115 S.Ct. 2199, 2204, 132 L.Ed.2d 351 (quoting United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556). As explained below, Wyatt's double jeopardy argument rests on the mistaken premise that the revocation of his term of supervised release--which was imposed as part of the sentence for his marijuana conviction--constituted a punishment for his possession of firearms.

Although this Circuit has never addressed the precise issue presented here, it has considered (and rejected) essentially the same double jeopardy argument in the closely analogous context of a parole revocation. ⁴ In United States v. Hanahan, 798 F.2d 187 (7th Cir.1986), a panel of this Court held that Double Jeopardy "protections are not triggered by the revocation of parole." Id. at 189. As Judge Bauer explained in Hanahan:

A parole revocation proceeding is an administrative proceeding designed to determine whether a parolee has violated the terms of his parole, not a proceeding designed to punish a criminal defendant for violation of a criminal law. A criminal prosecution is a judicial proceeding that vindicates the community's interests in punishing criminal conduct. Because the two proceedings serve different ends, the finding that the defendant no longer merits parole does not foreclose the criminal justice system from punishing the defendant for that conduct.

Id.

Just as revocation of parole is not intended to serve as punishment for the subsequent misconduct that results in the revocation, revocation of supervised release is similarly designed to meet objectives entirely distinct from punishing the subsequent misconduct. Indeed, the Sentencing Commission expressly views violations of the conditions of supervised released as a "breach of trust" and considers "the sentence imposed upon revocation [of supervised release as] intended to sanction the violator for failing to abide by the conditions of the court-ordered supervision, leaving the punishment for any new criminal conduct to the court responsible for imposing the sentence for that offense." United States Sentencing Commission, Guidelines Manual, Ch. 7 Pt. A § 3(b).

In this regard, it is critical to bear in mind that supervised release is a part of the defendant's original sentence, see 18 U.S.C. § 3583(a) ("The court ... may include as a part of the sentence ... a term of supervised...