United States v. Rhodes

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4161

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DAVID RHODES, a/k/a Crotch,

Defendant – Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:07-cr-00042-1)

Argued: March 27, 2009 Decided: April 14, 2009

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Nicholas S. Preservati, PRESERVATI LAW OFFICES, PLLC,
Charleston, West Virginia, for Appellant. Joshua Clarke Hanks,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee. ON BRIEF: Charles T. Miller, United States
Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

David Rhodes, who pleaded guilty in the Southern District

of West Virginia to a 21 U.S.C. § 846 drug conspiracy offense,

appeals the seventy-month sentence imposed by the district

court. More specifically, Rhodes challenges the court’s

application of a Sentencing Guidelines offense level increase

for possession of a dangerous weapon during the conspiracy. See

USSG § 2D1.1(b)(1) (2007) (the “weapon enhancement”). As

explained below, we affirm.

I.

In March 2007, the grand jury in Beckley, West Virginia,

returned a two-count indictment against Rhodes, charging him

with (1) conspiracy to manufacture five grams or more of

methamphetamine, in contravention of 21 U.S.C. § 846 (the

“conspiracy offense”), and (2) possession of methamphetamine-

making chemicals, in violation of 21 U.S.C. § 841(c)(2) (the

“possession offense”). That September, Rhodes pleaded guilty to

the conspiracy offense, pursuant to a written plea agreement, in

exchange for the government’s promise to move for dismissal of

the possession offense. The district court accepted Rhodes’s

guilty plea, adjudged him guilty of the conspiracy offense, and

scheduled sentencing proceedings.

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 According to Rhodes’s Presentence Investigation Report (the

“PSR”), the conspiracy offense involved a methamphetamine-

manufacturing conspiracy that operated in Roane County, West

Virginia, from late 2003 until September 29, 2006. The PSR

reflects that Rhodes’s activities in furtherance of the

conspiracy included providing ingredients used to manufacture

methamphetamine at the residence of Timothy Jones, arranging for

Clyde McQuain to purchase ingredients used by Rhodes to cook

methamphetamine at McQuain’s home, and distributing

methamphetamine to customers in Roane County. The PSR further

reflects that Rhodes possessed several firearms during the

conspiracy: for example, following coconspirator Jones’s

February 14, 2004 arrest on methamphetamine-related charges,

Jones told police that, “about a month and a half before the . .

. arrest, David Rhodes had a gun with a laser sight which he

flashed on Mr. Jones’ head.” J.A. 109. 1 As detailed in the PSR,

Rhodes was arrested on state charges on February 14, 2004,

September 12, 2004, and September 29, 2006, with those charges

later being dismissed in favor of the federal prosecution.

Pursuant to the plea agreement, Rhodes and the government

stipulated that “the total offense and relevant conduct is

1
Citations herein to “J.A. ” refer to the contents of the
Joint Appendix filed by the parties in this appeal. The PSR is
contained in a sealed volume of the Joint Appendix.

3
between 20 grams and 35 grams of actual methamphetamine, or

between 200 grams and 350 grams of a mixture containing

methamphetamine.” Id. at 111.

The PSR calculated a total offense level of 27 for Rhodes

under the Sentencing Guidelines: a base offense level of 28,

see USSG § 2D1.1(c)(6) (2007); the two-level weapon enhancement,

id. § 2D1.1(b)(1); and a three-level reduction for acceptance of

responsibility, id. § 3E1.1. With a criminal history category

of I, the resulting advisory sentencing range was seventy to

eighty-seven months of imprisonment (within the statutory range

of five to forty years).

Rhodes submitted written objections to the PSR, contending

that application of the weapon enhancement would be improper.

During the sentencing hearing conducted by the district court on

November 26, 2007, the defense explained that “it is our

position that [Rhodes] did not possess [a] firearm in

furtherance of the conspiracy, and that the only firearms that

were in his residence [at the time of his February 14, 2004

arrest] under the guidelines aren’t attributable to him.” J.A.

14.

The government presented two witnesses at the sentencing

hearing. Coconspirator McQuain testified that he had witnessed

various firearms in Rhodes’s car during the time of the

conspiracy and that Rhodes had told him about trading drugs for

4
firearms, but that he did not know of any connection between the

various firearms and the conspiracy and that he had never seen

Rhodes engaging in a drugs-for-firearms transaction. McQuain

also testified that, at the time of his own June 14, 2004 arrest

on state charges, police found two handguns under a couch in his

home that had been left there earlier that day by Rhodes.

Trooper Frederick L. Hammack of the West Virginia State

Police testified for the government that he had been assigned to

the Spencer (Roane County) detachment since October 2003 and had

been receiving information about Rhodes’s methamphetamine-

trafficking activities since late that year. Hammack testified

that, on February 14, 2004, he had responded to a Roane County

Sheriff’s Department request for assistance after a shot was

fired near coconspirator Jones’s Tawney Hollow residence in

southern Roane County. While Hammack and another officer were

waiting at the mouth of the hollow for other officers to arrive,

Rhodes drove up in his vehicle, and then parked and exited the

vehicle to “lock[] in the hubs” for four-wheel drive. J.A. 29.

Hammack and the other officer approached Rhodes, patted him

down, obtained permission to search his vehicle, and, having

found no contraband in the vehicle, sent him on his way. Later,

however, the officers discovered a methamphetamine laboratory in

Jones’s residence and were told it belonged to Rhodes. Hammack

then secured a search warrant for Rhodes’s residence, a mobile

5
home located on West Virginia Route 36 in Roane County. There,

Hammack found materials used to manufacture and distribute

methamphetamine — mainly in the kitchen/living room area, but

also in the bedroom — including “lots of little glassware,

tubes, and things with residue in it,” “a lot of sandwich bags

with the corners cut out,” and “blister packs of cold

medication.” J.A. 30.

Trooper Hammack testified during the sentencing hearing

that he had also searched Rhodes’s residence for “a black semi-

automatic pistol with a laser sight on it,” which he had

previously been told by sources that Rhodes would “break . . .

out just as an intimidation factor.” J.A. 30-31. Hammack

indeed found a firearm fitting that description in Rhodes’s

bedroom, along with one or two other firearms. Hammack

acknowledged that he could not remember where in the bedroom the

firearms were located (such as the closet or a dresser drawer),

nor the precise number of firearms found (a total of two or

three). He recalled the firearms being unloaded, and at least

the black pistol with the laser sight not being enclosed in a

gun case. When asked by the defense why he had not seized the

firearms or mentioned them in his subsequent report (even though

he had listed firearms in the search warrant application),

Hammack explained:

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 At the time, I had never done any federal cases.
In state court, firearms aren’t — there’s no
enhancement. That’s not the way things are here. And
I was very inexperienced in that. And had I known
what I know now, obviously I would have seized those
firearms.

But at the time, it didn’t really seem that
significant because [Rhodes] wasn’t a convicted felon.
. . . [L]ooking back knowing what I know now, I would
have taken them. But I didn’t know. It was just
inexperience.

J.A. 33. 2

The defense called one witness at the sentencing hearing,

Rhodes’s girlfriend Shelley Lynn Wagner, who was residing with

Rhodes and present in the home at the time of the February 14,

2004 search. Wagner testified that there were two or three

firearms in the bedroom, including one pistol that belonged to

her. According to Wagner, the firearms were kept unloaded in

the top of the bedroom closet under clothes and other “junk,”

and thus were not easily accessible. J.A. 41. At least one of

2
The defense pointed out to Trooper Hammack that, on the
same day Rhodes’s home was searched, the officers searching
coconspirator Jones’s residence (including Hammack) seized three
loaded handguns from that residence. Hammack explained that the
handguns were seized from Jones’s residence because “[t]hose
guns were the reason that I was called there,” i.e., to assist
with the response to a shot being fired, and “that was a
dangerous situation for our guys when they went in [because the
handguns] were loaded and either in hands or on a person.” J.A.
35. By contrast, although Hammack had been told that Rhodes had
used his black pistol with the laser sight to intimidate people,
“Mr. Rhodes didn’t have that firearm in his hands when we came
in,” and “[i]t wasn’t an immediate threat to any of my
officers.” Id. at 36.

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the firearms had a trigger lock, and at least one was kept in a

locked case. Wagner did not know of any ammunition in the

residence that fit those firearms.

After hearing argument from the parties, the district court

discussed the applicable burden of proof for the weapon

enhancement, explaining that “we are here to find by a

preponderance of the evidence whether it was clearly improbable

that a weapon present at a scene is connected with the offense.”

J.A. 53. That is, the government “need only show that a weapon

was present and the enhancement applies unless the defendant

carries a burden, unusual burden shifting in a criminal case[,]

that it was clearly improbable that the gun was involved in the

drug business.” Id. at 54. The court advised that it was

continuing the sentencing hearing until January 11, 2008, so

that it could further deliberate on the applicability of the

weapon enhancement. Before recessing, though, the court

announced the following findings of fact:

I find by a preponderance of the evidence that there
were firearms present at the defendant’s residence at
the time a search warrant was conducted which also
turned up methamphetamine residue and paraphernalia at
that residence consistent with the manufacture of
methamphetamine at some time at some place, and
consistent with the defendant’s guilt of being
involved in a conspiracy to manufacture
methamphetamine.

I find . . . by a preponderance of the evidence
that the weapons were in the bedroom, whereas the bulk
of the evidence seized was in the living room area.

8
 I further find by a preponderance of the
evidence, based on the testimony of the state
policeman, that the bedroom is in close proximity to
the living room, it being a mobile home.

I make no finding about what weapons or the
description of the weapons that were found as I can’t
readily determine a description of the weapons except
that they appear to be handguns and not long guns.
And that’s the only finding I would make regarding the
character of the guns.

* * *

[However,] I do find[,] based on the trooper’s
testimony[,] that one of the guns was black and had a
laser sight, but I don’t know what kind of gun it was.

J.A. 55-56.

The parties subsequently submitted supplemental memoranda

to the district court. When the sentencing hearing resumed on

January 11, 2008, the court announced that it was overruling

Rhodes’s objections to the weapon enhancement and finding “that

the Government proved by a preponderance of the evidence that

Mr. Rhodes possessed a firearm during the commission of the

offense.” J.A. 85. The court explained:

At the time the search warrant was executed, the
firearms were discovered in the defendant’s bedroom
while methamphetamine residue and drug paraphernalia
consistent with the manufacture of methamphetamine
were discovered in the adjacent kitchen/living room
area, and also within the bedroom.

Most of the stuff was in the kitchen and living
room area, according to the evidence, but some
glassware testing positive for methamphetamine residue
was found in the bedroom where the guns were found.

9
Id. The court further found that it was “not clearly improbable

that the firearms were connected to the offense.” Id. On this

point, the court explained:

The guns found in Mr. Rhodes’s bedroom were
handguns, one having a laser sight, the fact of a
weapon with a laser sight being consistent with one of
the witness’s statements in the [PSR] that he had seen
Mr. Rhodes with a gun with a laser sight and which the
witness said Mr. Rhodes had pointed at his head. The
guns and drug paraphernalia were found in close
proximity within the house.

. . . .

Again, Timothy Jones said that the
methamphetamine was cooked in his residence and he’s
the one that talked about the laser sight.

Id. at 85-86. The court then confirmed that there were no

“additional objections from either party,” and expressly adopted

the PSR based on the finding that there was “sufficient indicia

of reliability to support the probable accuracy of the matters

contained” therein. Id. at 86. Asked for clarification by the

defense, the court stated that “[t]he weapons in [Rhodes’s]

home” — and not any firearms discussed by coconspirator McQuain

in his testimony — “are the finding upon which I rely for the

enhancement.” Id. at 92.

The district court considered the advisory Guidelines range

(seventy to eighty-seven months) and the 18 U.S.C. § 3553(a)

factors, and then sentenced Rhodes to seventy months. That same

day (January 11, 2008), the court entered its judgment,

10
reflecting Rhodes’s conviction on the conspiracy offense, the

dismissal of the possession offense on the government’s motion,

and the imposition of the seventy-month sentence.

Rhodes timely noted this appeal, challenging the court’s

application of the Guidelines weapon enhancement. We possess

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291.

II.

We review a sentence imposed by a district court for

reasonableness, applying an abuse of discretion standard. See

Gall v. United States, 128 S. Ct. 586, 591 (2007); United States

v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Generally, in

order to determine whether a sentencing court has abused its

discretion, we engage in a two-step analysis. Pauley, 511 F.3d

at 473. First, we examine the sentence for “significant

procedural errors,” and, second, we evaluate the substance of

the sentence. Id.

In this appeal, Rhodes challenges only the procedural

reasonableness of his sentence. More specifically, he contends

that the district court committed “significant procedural error”

by “improperly calculating[] the Guidelines range.” Gall, 128

S. Ct. at 597; see also id. at 596 (observing that “a district

court should begin all sentencing proceedings by correctly

11
calculating the applicable Guidelines range”). In assessing

whether a sentencing court properly applied the Guidelines, we

review the court’s factual findings for clear error and its

legal conclusions de novo. See United States v. Osborne, 514

F.3d 377, 387 (4th Cir. 2008).

III.

For offenses falling under section 2D1.1 of the Sentencing

Guidelines, the weapon enhancement provides for a two-level

increase in the defendant’s offense level “[i]f a dangerous

weapon (including a firearm) was possessed.” USSG § 2D1.1(b)(1)

(2007). According to the Guidelines commentary, “[t]he

enhancement for weapon possession reflects the increased danger

of violence when drug traffickers possess weapons.” Id. § 2D1.1

cmt. n.3. The Guidelines instruct that the enhancement “should

be applied if the weapon was present,” id. — that is, if the

government shows “that the weapon was possessed during the

relevant illegal drug activity,” United States v. McAllister,

272 F.3d 228, 234 (4th Cir. 2001). The Guidelines further

instruct, however, that the enhancement should not be applied if

“it is clearly improbable that the weapon was connected with the

offense.” USSG § 2D1.1 cmt. n.3. “For example,” the Guidelines

illustrate, “the enhancement would not be applied if the

12
defendant, arrested at his residence, had an unloaded hunting

rifle in the closet.” Id.

Here, the district court properly recognized that, under

our precedent, it was the government’s burden to prove the

presence of a weapon and Rhodes’s burden to establish the clear

improbability that the weapon was connected to his conspiracy

offense. See United States v. Harris, 128 F.3d 850, 852-53 (4th

Cir. 1997). In finding that the government had proven the

presence of a weapon and that Rhodes had failed to establish

that it was clearly improbable the weapon was connected with his

offense, the court relied on the following findings of fact:

(1) firearms and methamphetamine-making materials were present

in Rhodes’s residence at the time of the February 14, 2004

search thereof; (2) the bulk of the methamphetamine-making

materials were found in the kitchen/living room area, but some

such materials (including glassware testing positive for

methamphetamine residue) were found in the nearby bedroom, where

the firearms were also found; (3) the firearms were “handguns”

and not “long guns”; (4) one of the handguns was black and had a

laser sight, consistent with the description of a firearm that,

according to coconspirator Jones, Rhodes had recently pointed at

Jones’s head; and (5) Jones had also stated that methamphetamine

was cooked at his residence. See J.A. 55-56, 85-86. The

information from Jones was outlined in Rhodes’s PSR, which the

13
district court found to be sufficiently reliable and, thus,

adopted.

Simply put, the district court did not clearly err in its

application of the weapon enhancement. See McAllister, 272 F.3d

at 234 (reviewing application of weapon enhancement for clear

error). First of all, the presence of methamphetamine-related

materials in Rhodes’s residence while the conspiracy was

ongoing, in close physical proximity to the firearms, was

sufficient to support a finding that Rhodes possessed the

firearms during the conspiracy. The evidence demonstrates that,

even if methamphetamine was not cooked in Rhodes’s home,

methamphetamine-making materials were stored there in

furtherance of the conspiracy. As we have recognized,

possession of the weapon during the commission of the
offense is all that is needed to invoke the [weapon]
enhancement. . . . [W]hen the offense committed is
conspiracy, [any geographical and temporal] proximity
conditions are met when the weapon is discovered in a
place where the conspiracy was carried out or
furthered.

United States v. Apple, 962 F.2d 335, 338 (4th Cir. 1992); see

also Harris, 128 F.3d at 852 (“We now unequivocally affirm the

rule, already recognized in several other circuits, that the

proximity of guns to illicit narcotics can support a district

court’s enhancement of a defendant’s sentence under Section

2D1.1(b)(1).”).

14
 Furthermore, the application of the weapon enhancement to

Rhodes is supported by the district court’s finding that one of

the firearms discovered in Rhodes’s home — a black handgun with

a laser sight — matched the description of a firearm that Rhodes

had pointed at the head of Jones, who cooked methamphetamine as

part of the conspiracy. The court was entitled to rely for its

finding on information in the PSR, because there was no showing

that this aspect of the PSR was inaccurate. See United States

v. Love, 134 F.3d 595, 606 (4th Cir. 1998) (“Without an

affirmative showing the information is inaccurate, the court is

free to adopt the findings of the presentence report without

more specific inquiry or explanation.” (internal quotation marks

and alterations omitted)).

We are not persuaded by Rhodes’s attempts to show that the

district court erred by not finding a clear improbability that

the firearms discovered in his home on February 14, 2004, were

connected to his conspiracy offense. For example, Rhodes points

to the fact that Trooper Hammack declined to seize the firearms

or note them in his subsequent report — a fact that

demonstrates, in Rhodes’s view, that “Hammack did not believe

the weapons . . . were connected to the drug activity.” Br. of

Appellant 18. The sentencing court was entitled, however, to

accept Hammack’s explanation of why he did not seize Rhodes’s

firearms. Additionally, the court was not required to either

15
draw the inference that Hammack did not believe the firearms

were connected to the conspiracy offense, or to deem any such

belief to be binding on the court.

Rhodes also relies on the testimony of girlfriend Wagner

that “[t]he weapons were unloaded [and] stored in a closet in

the bedroom”; “[s]everal of the weapons had trigger locks or

were placed in gun cases,” with “[a]t least one of the gun cases

[being] locked”; “[t]here was no ammunition for the guns in the

residence”; and “[n]umerous items were placed on top of the

weapons, thereby interfering with their accessibility.” Br. of

Appellant 19-20. Unfortunately for Rhodes, we have recognized

“that the mere fact that a weapon is unloaded cannot prevent a

court from enhancing a sentence under Section 2D1.1(b)(1).”

Harris, 128 F.3d at 853 (explaining that “even an unloaded

firearm enhances the risk of violence,” in that such weapon may

be “employ[ed] . . . to intimidate others” and “may encourage

others to resort to weapons in response”). Moreover, simply

because Rhodes’s firearms were not in use or readily accessible

at the time of the search does not mean they were not connected

to the conspiracy, as demonstrated by the evidence that Rhodes

had recently pointed one of the guns at coconspirator Jones’s

head. Indeed, the district court was careful to identify

Rhodes’s firearms as “handguns” and not “long guns,” J.A. 56,

thus implicitly equating them with the sort of firearms useful

16
to a drug manufacturing conspiracy, and distinguishing them from

the unloaded hunting rifle in the closet that the Guidelines

instruct would not justify the weapon enhancement.

In these circumstances, we must reject Rhodes’s contention

that the district court erred by applying the weapon enhancement

in calculating his advisory Guidelines range. 3 As such, the

3
We also reject Rhodes’s contention that the district
court’s application of the weapon enhancement contravened his
constitutional rights. More specifically, requiring Rhodes to
show that it was clearly improbable that his firearms were
connected to his drug conspiracy offense did not violate his due
process rights, either by creating an impermissible presumption
of a firearm-offense connection that it was his burden to rebut,
or by imposing a too-stringent clearly improbable standard. As
one of our sister courts of appeals has explained,

the language of the Guidelines does not require that a
connection be shown. Rather, it requires only that
the weapon be possessed during commission of the
offense. The Commentary, therefore, creates an
exception to the terms of the Guideline, not a
presumption that a connection existed. The Due
Process Clause does not require that the government
prove the absence of every possible exception or
mitigating circumstance.

United States v. Restrepo, 884 F.2d 1294, 1296 (9th Cir. 1989);
see also United States v. Bjorkman, 270 F.3d 482, 492-93 (7th
Cir. 2001) (rejecting due process challenge to weapon
enhancement burden-shifting scheme); United States v. McGhee,
882 F.2d 1095, 1097-99 (6th Cir. 1989) (same).

Finally, the weapon enhancement did not contravene Rhodes’s
Second Amendment rights. Rhodes contends that, under District
of Columbia v. Heller, 128 S. Ct. 2783 (2008), he was entitled
to possess firearms in his home. The Heller Court emphasized,
however, that “the right secured by the Second Amendment is not
unlimited,” and that “nothing in our opinion should be taken to
cast doubt on longstanding” regulatory measures, such as
“prohibitions on the possession of firearms by felons and the
(Continued)
17
court committed no significant procedural error, and thus did

not abuse its discretion, in sentencing Rhodes.

IV.

Pursuant to the foregoing, we affirm the seventy-month

sentence imposed by the district court on Rhodes.

AFFIRMED

mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial
sale of arms.” Id. at 2816-17 & n.26 (providing nonexhaustive
list of “presumptively lawful regulatory measures”).

18