United States v. Flucas

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 96-40293
Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

VERSUS

MITCHELL LEE FLUCAS

Defendant-Appellant

Appeal from the United States District Court
For the Eastern District of Texas
October 24, 1996

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:

Mitchell Lee Flucas appeals his sentence imposed after he

pleaded guilty, pursuant to a plea agreement, to possession of

cocaine base with intent to distribute. We affirm.

Flucas and co-defendant Perry Wayne Montgomery traveled from

Homer, Louisiana to Dallas, Texas, to obtain crack cocaine for

resale in Homer. In Dallas, Flucas obtained a box containing 600.7

grams of cocaine base. Flucas and Montgomery were stopped on their

way back to Homer for traffic violations. When they gave
conflicting stories concerning the nature of the trip, the officers

obtained permission to search the vehicle. Beneath the passenger

seat, officers found a .380 caliber pistol with seven rounds of

ammunition and the box containing the cocaine base. Flucas and

Montgomery were arrested. Flucas admitted to having picked up

drugs in Dallas on prior occasions.

Flucas, who is apparently a crack addict, tested positive for

drugs twice before his plea. Following his plea, but before

sentencing, Flucas failed to report to Pretrial Services on two

occasions and failed to report to his drug treatment provider for

urinalysis and counseling. Flucas was arrested and his bond

revoked.

At sentencing Flucas unsuccessfully objected to the PSR’s

recommendation that (1) his sentence be adjusted for weapons

possession; (2) his sentence not be reduced for acceptance of

responsibility; and (3) he not be given a reduction for being a

minor participant in the offense. At a separate hearing, the

court denied Flucas’s motion for reconsideration, supporting its

ruling with additional factual findings.

ANALYSIS

We review the district court’s application and legal

interpretation of the sentencing guidelines de novo, United States

v. Domino, 62 F.3d 716, 719 (5th Cir. 1995), and its findings of

fact for clear error. United States v. Hooker, 997 F.2d 67, 75

(5th Cir. 1993).

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THE FIREARM

Flucas argues that it was error to adjust his sentence by two

levels for possession of a firearm. The finding that Flucas

possessed a weapon is also significant because it disqualified

Flucas from being eligible for the “safety valve” provision of

U.S.S.G. § 5C1.2, which mandates that the court sentence a

defendant without regard to the minimum statutory sentence, if

certain criteria are met. Section 5C1.2 prohibits a sentence less

than the statutory minimum if the defendant possessed a firearm in

the course of committing the offense. U.S.S.G. § 5C1.2(2). The

Government admits that, but for the firearm possession, Flucas

would be eligible for a less-than-minimum sentence under § 5C1.2.

The sentencing guidelines direct a sentencing court to

increase the defendant’s sentence by two levels whenever, in a

crime involving the manufacture, import, export, trafficking, or

possession of drugs, the defendant possessed a dangerous weapon.

U.S.S.G. § 2D1.1(b)(1). Application Note 3 to § 2D1.1 explains

that this enhancement should be applied if the weapon was present,

unless it is clearly improbable that the weapon was connected with

the offense. See United States v. Mitchell, 31 F.3d 271, 277 (5th

Cir.), cert. denied, 115 S. Ct. 455, 649 (1994); 115 S. Ct. 770,

953 (1995). The Government may satisfy its burden of proving a

connection between the weapon and the offense by showing that the

weapon was found in the same location where drugs or drug

paraphernalia are stored or where part of the transaction occurred.

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Id. at 278.

The district court used the correct legal standard of “clear

improbability” and applied it to the facts, stating,

“...considering the spatial relationship between the gun and the

drugs, I don’t think it is clearly improbable that the gun was

there for the specific purpose of aiding in the defense of the

narcotics should someone attempt to take possession from the

defendant.” Because the gun was found under the same seat as the

drugs, this finding is not clearly erroneous.

Flucas argues that he did not know that the gun was in the

car, and he supports his contention with the affidavit of co-

defendant Perry Montgomery, who stated that the vehicle was his and

that the gun had been placed in it by a third person. Montgomery’s

affidavit also states, however, that Flucas knew about the gun when

it was placed in the car, but that he did not know that it remained

in the car. Flucas gave the probation department a similar account

of his knowledge. The district court made no specific factual

finding about whether Flucas knew the gun was present. We infer

from the court’s ruling -- made after the probation officer

explained that the gun and drugs were found approximately eight

inches away from each other -- that the court did not find these

statements credible and that it believed Flucas knew the gun was

there.

Neither the sentencing guidelines nor the case law requires

that the Government prove a defendant had knowledge of a weapon’s

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existence. The adjustment must be made when a weapon is found at

the scene of the crime unless there is clear improbability that the

weapon is connected to the offense. U.S.S.G. § 2D1.1, comment (n.

3); Rodriguez, 62 F.3d at 724-25; United States v. Ortiz-Granados,

12 F.3d 39, 41 n.3 (5th Cir. 1994) (citing cases). The court

specifically found such clear improbability did not exist.

Although, as Flucas argues, a defendant’s lack of knowledge may

make it clearly improbable that the weapon is connected to the

defendant’s conduct, the district court did not find that Flucas

lacked knowledge. We see no error.

Flucas argues that Bailey v. United States, 116 S. Ct. 501

(1995) prohibits the two-level adjustment. Bailey, however, dealt

with the application of 18 U.S.C. § 924(c)(1), not the sentencing

guidelines, and it thus does not control the analysis here. United

States v. Castillo, 77 F.3d 1480, 1499 n.34 (5th Cir. 1996), cert.

denied, 65 U.S.L.W. 3236 (U.S. Oct. 7, 1996) (No. 96-139).

ACCEPTANCE OF RESPONSIBILITY

Flucas contends that he should have been granted a three-level

downward adjustment for acceptance of responsibility because he

pleaded guilty, entered an outpatient substance abuse program, and

gave timely information, cooperation, and assistance to the

Government.

Section 3E1.1 of the guidelines permits a two-level reduction

for acceptance of responsibility. Commentary to the guidelines

suggests that whether the defendant has voluntarily terminated or

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withdrawn from criminal conduct or associations should be

considered. U.S.S.G. § 3E1.1, comment. (n.1(b)). The defendant

bears the burden of demonstrating that he is entitled to the

reduction, and this court reviews the sentencing court’s

determination with even more deference than the pure “clearly

erroneous” standard. United States v. Bermea, 30 F.3d 1539, 1577

(5th Cir. 1994), cert. denied, 115 S. Ct. 1113, 115 S. Ct. 1825

(1995); § 3E1.1, comment. (n.5) (stating that the determination of

the sentencing judge is entitled to great deference). The entry of

a guilty plea does not entitle a defendant to a reduction as a

matter of right. See United States v. Shipley, 963 F.2d 56, 58

(5th Cir.), cert. denied, 506 U.S. 925 (1992).

The court’s decision not to grant the reduction was based upon

Flucas’s drug use subsequent to his apprehension, his failure to

report to Pretrial Services, and his failure to submit to

counseling and testing after entering his plea. In United States

v. Watkins, 911 F.2d 983, 985 (5th Cir. 1990), we held that the

district court’s denial of a reduction for acceptance of

responsibility was not an abuse of discretion when the defendant

used cocaine while on release pending sentencing. Watkins, 911

F.2d at 985.1 Flucas argues that this case is distinguishable from

1
The Sixth Circuit has criticized this holding. United States
v. Morrison, 983 F.2d 730, 734-35 (6th Cir. 1993). Other circuits
that have considered the issue have agreed with this circuit.
United States v. O’Neil, 936 F.2d 599, 600-01 (1st Cir. 1991);
United States v. Pace, 17 F.3d 341, 343 (11th Cir. 1994); United
States v. McDonald, 22 F.3d 139, 142-43 (7th Cir 1994); United

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Watkins because the defendant in Watkins used drugs while on

release pending sentencing, in contrast to Flucas, who used drugs

while on pretrial release before pleading guilty. His argument is

flawed in two respects. First, Flucas’s failure to submit to drug

testing and counseling after entering his plea invites the

inference that his drug use continued after he entered his plea,

bringing this case squarely under Watkins. Furthermore, even if no

such inference can be drawn, Flucas’s argument is foreclosed by

this Court’s holding in United States v. Rickett, 89 F.3d 224 (5th

Cir. 1996). In Rickett, the defendant admitted to using marijuana

two days before entering his guilty plea while on pretrial release.

Id. at 226. This Court, applying Watkins, determined that, under

these circumstances, denial of acceptance of responsibility was not

error. Id. at 227.

Flucas argues that his reason for violating conditions of his

release did not show a lack of contrition but, instead, was a

result of his drug addiction. There is no indication that the

Watkins or Rickett Courts considered whether a court may deny a

defendant the acceptance-of-responsibility reduction, if the sole

reason for defendant’s continued drug use is addiction.2 The

Second Circuit has in dicta indicated that drug addiction alone

should not form the basis of the denial of acceptance of

States v. Byrd, 76 F.3d 194 (8th Cir. 1996).
2
The Government never denied Flucas’s assertion that he was a
drug addict.

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responsibility. United States v. Woods, 927 F.2d 735, 736 (2d Cir.

1991). The Seventh Circuit, which has also considered the issue,

has determined that while one or two “dirty” tests from an addict

might not prevent the acceptance of responsibility reduction, a

court may refuse to give the reduction based on continuous drug use

by an addict. United States v. Dawson, 52 F.3d 631, 633-34 (7th

Cir. 1995) (finding that the district court did not err in refusing

to give reduction when 2/3 of the urine tests were positive). The

Seventh Circuit has also held that it was not error to deny the

reduction to a professed addict who has failed even to show up for

drug testing. United States v. Kirkland, 28 F.3d 49, 51 (7th Cir.

1994).

Because Flucas not only tested positive for drug use, but also

failed to keep appointments with Pretrial Services and attend drug

counseling, it was not clear error for the district court to deny

downward adjustment for acceptance of responsibility.

MINOR PARTICIPANT

A district court may reduce a defendant’s offense level by two

levels if the defendant was a “minor participant” in the criminal

activity, or by four levels if the defendant was a “minimal

participant.” See U.S.S.G. § 3B1.2. A downward adjustment under

§ 3B1.2 is generally appropriate only if a defendant is

substantially less culpable than the average participant. United

States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995). A district

court’s finding on this sentencing factor is reviewed under the

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clearly erroneous standard. Mitchell, 31 F.3d at 278.

Flucas argues that he was merely a “mule,” transporting drugs

for the benefit of others. However, Flucas’s role was not minor,

as he made trips between Homer and Dallas on a regular basis to

transport drugs. Furthermore, Flucas was not held accountable for

the total amount of crack cocaine distributed by his co-

conspirators but, instead, only for the amount of cocaine in his

possession at the time of the arrest.

This case is analogous to United States v. Lampkins, 47 F.3d

175, 180 (5th Cir.), cert. denied, 115 S. Ct. 1440, 115 S. Ct. 1810

(1995). In Lampkins, the district court based the defendant’s

sentence only on those acts in which the defendant was involved,

despite the fact that the court could have based his sentence on

the relevant conduct of his co-conspirators. Id. at 180. The

court relied on § 3B1.2, comment (n.4), which provides that a

defendant who is convicted of less than his actual criminal conduct

is not also entitled to a minor participation reduction unless his

conduct is on the minor end of the crime for which he actually was

sentenced. Id. at 181 n.3. Although Flucas was originally charged

with conspiracy and other drug trafficking offenses, he pleaded

guilty only to possession of the amount of cocaine base found at

the time of his arrest. The district court used only this amount

in calculating his sentence.

AFFIRMED.

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