United states court of appeals tenth circuit united states of america

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Dangerous Weapon Enhancement

Kovac’s second contention on appeal is that “he should not have been assessed a two-level enhancement under §2D1.1(b)(1) of the Guidelines for possession of a dangerous weapon in connection with a drug offense because it was clearly improbable that the weapon in question [i.e., the bomb] was connected with the offense.” Appellant’s Opening Br. at 6. The district court found that the Government sufficiently proved that Kovac possessed the bomb during the commission of the manufacturing crime to which he pled guilty, and overruled Kovac’s objection. Tr. of Sentencing Hr’g at 105. This finding is not clearly erroneous.

USSG §2D1.1(b)(1) provides for a two-level enhancement if a “dangerous weapon (including a firearm) was possessed” during the commission of the offense. “The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” USSG §2D1.1, Comment (n. 3). “The government has the burden to prove by a preponderance of the evidence that a weapon was possessed in physical proximity to the offense.” United States v. Contreras, 59 F.3d 1038, 1040 (10th Cir. 1995). To meet this burden, the government is required to “present evidence demonstrating ‘that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant.’” United States v. Lang, 81 F.3d 955, 964 (10th Cir. 1996) (quoting United States v. Robertson, 45 F.3d 1423, 1449 (10th Cir. 1995)) (further quotations omitted). Once the government meets its burden, the onus is on the defendant to demonstrate that the two-level enhancement should not apply. Contreras, 59 F.3d at 1040.

“The government meets its initial burden when it shows that a weapon was located near the general location where at least part of a drug [offense] occurred.” United States v. Vaziri, 164 F.3d 556, 568 (10th Cir. 1999). It is undisputed that Kovac owned, constructed and operated the lab at his residence, and the Government presented evidence that Kovac knew there was a bomb in the attic, as well as evidence connecting the bomb to the drug activity occurring on his premises.14

Kovac’s rejoinder is that despite this evidence, it was “clearly improbable” that the bomb was actually connected to the manufacturing offense. Kovac argues that because manufacturing related activity occurred only in the kitchen, the basement and the detached garage, areas of the residence “far removed” from the attic where the bomb was actually found, there was an insufficient “spatial” connection between the weapon and the manufacturing charge. Appellant’s Opening Br. at 8; Appellant’s Reply Br. at 2. It is undisputed, however, that the attempted manufacture occurred in Kovac’s residence, and the presence of the bomb in that same residence is enough to support the enhancement if the residence was generally used in the furtherance of the alleged drug offense. See United States v. Dickerson, 195 F.3d 1183, 1188 (10th Cir. 1999) (concluding that enhancement proper because although firearms were not found in same room as drugs, they were found in “close proximity” to the drugs and the entire house was utilized for drug activity);15 Contreras, 59 F.3d at 1039 (holding that although firearm was found in attached garage, twenty five feet from drugs in living room, enhancement proper because entire residence was used as a “stash house” for drugs); United States v. Earls, 42 F.3d 1321, 1326 (10th Cir. 1994) (upholding enhancement where residence generally “used in furtherance of the drug business”). The record indicates that Kovac’s drug activity did not occur in a small, isolated part of his residence, but extended throughout the house and even into adjacent buildings. See Tr. of Sentencing Hr’g at 15-20; Reply Brief at 2 (“There was activity in the kitchen . . . , in the basement . . . and in the detached garage). As we recognized in United States v. Flores, 149 F.3d 1272 (10th Cir. 1998):

enhancement under §2D1.1(b)(1) is designed to reflect the increased danger of violence when drug traffickers add firearms to the mix. . . . Although in many cases the weapon will be involved with some sort of illegal transaction, it is not necessary for the Government to show that drugs and money changed hands near the weapon; the weapon may simply serve as a potentially deadly means of protecting the trafficker’s goods, thereby increasing the danger of violence.

Id. at 1280 (citation omitted). Although there is no evidence that any manufacturing actually occurred in the attic or the adjacent bedroom, there is sufficient evidence to support the conclusion that the residence was generally used to further Kovac’s illegal manufacturing activities, and that the bomb served as a “potentially deadly means of protecting” Kovac’s operations from detection by destroying evidence in the event a police raid on the lab appeared imminent, “thereby increasing the danger of violence.” Id.

Kovac further asserts that the district court’s ruling was erroneous because there was no evidence that he actually owned or controlled the bomb. For purposes of §2D1.1(b)(1), however, “[p]ersonal possession of a [weapon] . . . is not necessary.” United States v. Smith, 131 F.3d 1392, 1400 (10th Cir. 1997). Regardless of whether or not Kovac was the technical owner of the bomb, the evidence demonstrated that Kovac was aware that the bomb was in the attic, and that Kovac had full access to the bomb during his illegal drug manufacturing. See United States v. Hallum, 103 F.3d 87, 89 (10th Cir. 1996) (finding enhancement proper where weapon was accessible to criminals while they were involved in drug cultivation activity). Although Kovac told Officer Sorrell that the bomb was not his and was not intended to be used in connection with his illegal manufacturing operation, Officer Sorrell testified that he did not believe Kovac, and the district court apparently found Officer Sorrell’s testimony to be more credible than the statements made by Kovac at the time of his arrest (or thereafter). We will not disturb such determinations on appeal. United States v. Caro, 248 F.3d 1240, 1243 (10th Cir. 2001).16

In light of the evidence presented at the sentencing hearing, the district court did not clearly err in finding that the Government met its burden under §2D1.1(b)(1), and in concluding that there was a sufficient connection between the bomb, the manufacturing activity, and Kovac to overrule Kovac’s objection to the two-level enhancement.

Criminal History Departure

Kovac’s final contention on appeal is that the district court erred in refusing to depart downward when fixing his criminal history category under the Sentencing Guidelines. Kovac claims that the PSR over-represented his criminal history and asserts that a downward departure was warranted under USSG §4A1.3.17 However, “[i]t is established law in this circuit, and in every circuit which has considered the jurisdictional issue, that an appellate court does not have jurisdiction to review a district court’s discretionary refusal to depart downward from the sentencing guidelines.” United States v. McHenry, 968 F.2d 1047, 1048 (10th Cir. 1992).

Kovac expressly acknowledges the limits on our jurisdiction and attempts to overcome them by asserting that “the District Court did not understand its authority to [depart]” because it did not mention the departure motion in its ruling at sentencing, or in the judgment itself. Appellant’s Reply Br. at 6-7. Although we will review discretionary refusals to depart where it appears from the record that “the district court refused . . . because it erroneously interpreted the Guidelines as depriving it of the power to depart based on the proffered circumstances,” United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir. 1993), such review is appropriate only where “the judge’s language unambiguously states that the judge does not believe he has authority to downward depart.” United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir. 1994). Such unambiguous language does not exist here, and there is nothing in the record to suggest that the district court misunderstood its authority to depart downward under USSG §4A1.3. The district court heard argument on Kovac’s motion and implicitly rejected it, finding “that the total offense level as modified by the court’s ruling should be a total offense level 31, criminal history category 2.” Tr. of Sentencing Hr’g at 113. The fact that the district court did not articulate the exact reasons for its discretionary refusal does not evidence that the district court misunderstood its ability to depart downward. Thus, we lack jurisdiction to consider this allegation of error.

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