USA. v. Cashman

• Decision Date: 09 June 2000
• Docket Number: Nos. 98-1955,98-2584,s. 98-1955
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD V. CASHMAN, and SCOTT D. FEDDERLY, Defendants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 582

216 F.3d 582 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD V. CASHMAN, and SCOTT D. FEDDERLY, Defendants-Appellants.

Nos. 98-1955, 98-2584

In the United States Court of Appeals For the Seventh Circuit

Argued September 14, 1999

Decided June 9, 2000

Appeals from the United States District Court for the Western District of Wisconsin. No. 97 CR 102--John C. Shabaz, Chief Judge. [Copyrighted Material Omitted]

Before BAUER, ROVNER, and EVANS, Circuit Judges.

ROVNER, Circuit Judge.

Donald Cashman and Scott Fedderly pleaded guilty to conspiring to distribute methamphetamine, in violation of 21 U.S.C. sec. 846. Cashman contests the legality of a traffic stop that culminated in the search of his automobile and the discovery of evidence pointing to his involvement in the conspiracy. Fedderly contests the district court's finding that he possessed a firearm in the course of the conspiracy, see U.S.S.G. sec. 2D1.1(b)(1), asserting, inter alia, that the district court improperly relied on information which, according to the terms of his plea agreement, could not be used against him. We affirm.

I.

On August 17, 1997, Cashman was driving his Chevy Blazer on Interstate Highway 94 through St. Croix County, Wisconsin, when Wisconsin State Trooper Jason Spetz pulled him over. Trooper Spetz effectuated the stop when he noticed a crack in the windshield of Cashman's Blazer. In the course of issuing a warning ticket to Cashman, Spetz asked for and received Cashman's permission to search the interior of the Blazer. Inside, the trooper discovered, among other things, methamphetamine and a spiral index-card notebook containing drug-related entries.

After he was indicted, Cashman moved unsuccessfully to suppress the evidence that Trooper Spetz seized from his vehicle. Cashman argued that the traffic stop that led to the search was unlawful. However, acting on the recommendation of the magistrate judge, the district court concluded that the stop was justified by the crack in the Blazer's windshield. Wisconsin law requires that a vehicle's windshield not be "excessively cracked or damaged." See Wis. Admin. Code sec. Trans. 305.34(3) (1997). A photograph of the Blazer's windshield indicated that the crack was from seven to ten inches long, extending two inches above the left windshield wiper of the car in its resting position. Gov. Exs. 1, 1-A; see R. 52 at 2-3; R. 56 at 2. In the court's view, this appeared to be an "excessive" crack, supplying Spetz with probable cause to stop Cashman's vehicle. R. 52 at 2-3; R. 56 at 2. The motion to suppress was therefore denied, and Cashman pleaded guilty a short while later.

An anonymous tip led the authorities to Fedderly, a distributor of methamphetamine whom Cashman supplied. The tipster apprised the Dunn County, Wisconsin Sheriff's Department by telephone on August 12, 1997, that Fedderly, who was wanted on several outstanding warrants, was staying in a stolen motor home parked in rural Menominee. After looking the home over and confirming that it had been reported stolen, officers performed an inventory search. Inside a cupboard at the foot of a bed, they discovered a loaded .22 caliber revolver along with some of Fedderly's clothing. Elsewhere in the home they found a baggie containing what appeared to be marijuana, drug paraphernalia, a wallet with a social security card issued to Fedderly, and just under $500 in cash. Fedderly was arrested the following day. When asked about the gun, he admitted that it belonged to him and (unlike the motor home) was not stolen. R. 112 at 12, 21-22; see also R. 100 para. 14. On August 14 the home was searched again. That search produced, among other things, a black nylon tote bag, a digital scale, syringes, and baggies, as well as a gram scale and a Tupperware container, both of which had methamphetamine residue on them.

Ultimately, Fedderly pleaded guilty to conspiring along with Cashman to distribute methamphetamine. His plea agreement contained a provision committing him to "make a full, complete and truthful statement regarding his involvement in violations of federal criminal statutes, as well as the involvement of all other individuals known to the defendant." R. 84 sec. 2. That same provision, however, specified that "the information provided by the defendant under the terms of this plea agreement will not be used against him to determine the applicable sentencing guideline range except as otherwise indicated in U.S.S.G. sec.1B1.8(b)." Id.; see also R. 111 at 8-9.

When the probation officer interviewed him prior to sentencing, Fedderly told the officer that Cashman had given him the motor home in which the gun was found because Fedderly had no place to live. According to Fedderly, Cashman said that his friends had stolen the motor home and that the handgun was in the home "at the time."¹ Fedderly said that he had never even taken the gun from the home, let alone used or carried it. The probation officer included this information in the pre-sentence report. R. 100 para.para. 40, 50.

The Sentencing Guidelines call for a two-level increase in the defendant's base offense level when the defendant possessed a dangerous weapon in the course of a drug-related offense, so long as it is not "clearly improbable" that the gun was connected to the offense. U.S.S.G. sec. 2D1.1(b)(1) & comment. (n.3). The probation officer applied that enhancement in calculating Fedderly's offense level. R. 100 para. 50. Although "[t]here is no evidence to suggest Fedderly used or carried the gun during any drug transaction," the officer reasoned, "since the weapon was provided to him by his drug supplier and was found with other indicia of drug distribution, we cannot say it is clearly improbable that the weapon was connected with the offense." Id. Fedderly contested the propriety of the enhancement, R. 112 at 18-20, but he did not argue that consideration of his statement to the probation officer as to the source of the gun violated his plea agreement with the government.

At sentencing, the district court concluded that the two-level enhancement for possession of the gun in the course of the methamphetamine conspiracy was appropriate. As the court's remarks reveal, the fact that Cashman had given Fedderly the gun figured prominently in the court's rationale.

The Court further finds that the loaded .22 caliber handgun was found in the stolen motor home in which the defendant was sometimes residing. Initially defendant informed Cragin [one of the officers who arrested him] the gun was his and not stolen; has since informed [the] probation officer that gun was in the motor home when the vehicle was provided to him by Donald Cashman. The Court notes that there is no evidence to suggest that Fedderly used or carried the gun during any drug transaction. However, this weapon was provided to him by his drug supplier and was found with other indicia of drug distribution.

The Court notes that the adjustment should be applied if the weapon was present. Now the weapon was present in a mobile home . . . which the defendant sometimes used. It was in the vicinity, the immediate vicinity of methamphetamine residue and drug paraphernalia. That is[,] items which were normally assimilated with and/or relating to the distribution of methamphetamine. The Court cannot find that it is clearly improbable that the weapon was connected with the offense.

Those are the elements. That is the determination. The Court believes that there is a reason for this enhancement that has been suggested in numerous other cases and notes relating to the enhancement for weapon possession. It does, as indicated, reflect the increased danger of violence when drug traffickers possess weapons. We have a drug trafficker. We have . . . Donald Cashman, a drug trafficker, who provided him, [Fedderly] now tells us in his latest version, the gun. It certainly wasn't given to him to hunt squirrel. It certainly wasn't given him as a plaything.

He is in a dangerous livelihood. Perhaps [he] doesn't as yet realize how dangerous it was, but the fact is this was provided to him by a drug supplier, it was found with the other evidence and indicia of drug distribution, and the Court believes that the weapon was connected with this offense having previously advised that it cannot say it is clearly improbable the weapon was connected. It is in words of the vernacular to protect the stash and to protect the distribution thereof and to protect the cash surrounding it and to protect the defendant when he was in the mobile home in those surroundings.

R. 112 at 22-23. (emphasis ours). Again, Fedderly raised no objection as to the propriety of taking into consideration Fedderly's statement to the probation officer about the source of the gun.

The district court sentenced Cashman to a prison term of 180 months and Fedderly to a term of 144 months. Cashman now appeals his conviction, contending that the district court should have suppressed the evidence seized from his Blazer. Fedderly challenges his sentence, arguing that the government failed to establish that he possessed the revolver discovered in the mobile home during the conspiracy to distribute the methamphetamine, that it is clearly improbable that the gun had any connection to the conspiracy, and that the district court erred in considering his statement that Cashman had given him that gun.

II.

A.

Cashman contends that the district court erred in concluding that Trooper Spetz had probable cause to effectuate the traffic stop that culminated in the search of his Blazer. We of course review the court's probable cause determination de novo, deferring to any subsidiary findings of historical fact that are not clearly erroneous. Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996); United States v. Richardson, 208 F.3d 626, 629 (7th Cir. 2000). The particular legal rule pertinent to this case is...