NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 13, 2013
Decided June 27, 2013
Before
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐2756
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 10 CR 987
BRUCE WHITTLER
Defendant Appellant. Amy J. St. Eve,
Judge.
ORDER
Bruce Whittler pleaded guilty to conspiracy to possess and distribute cocaine, see 21
U.S.C. §§ 846, 841(a)(1), and the district court sentenced him to 92 months’ imprisonment.
Whittler argues that the court miscalculated his guidelines imprisonment range by applying
an upward adjustment for possessing a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1).
Because the court did not clearly err, we affirm the judgment.
In March 2009,Whittler began selling crack cocaine supplied by his cousin, Robert
Jones. Jones would deliver the crack to Whittler’s home. Jones was arrested in October 2009,
No. 12‐2756 Page 2
and after that the conspiracy ended. Whittler was not charged in federal court until
November 2010, and when agents arrested him they recovered 3 toy guns painted to
resemble real firearms. Whittler stipulated that the drug quantity was at least 50 grams, but
the record does not show that drugs were recovered from him or his home.
At sentencing the government argued that Whittler should receive a 2 level increase
under U.S.S.G. § 2D1.1(b)(1), which applies “[i]f a dangerous weapon (including a firearm)
was possessed.” Jones testified for the government that sometime during the summer of
2009—before their conspiracy ended—he was at Whittler’s home delivering crack or
collecting money for previous deliveries and asked to see Whittler’s gun. Whittler presented
the gun to Jones in his kitchen, where, according to Jones, Whittler sometimes received crack
from him. Jones described handling the gun, which he described as small, black, heavy, and
made of metal. Whittler possessed the gun, Jones opined, to protect his home from intruders,
and he acknowledged that, because of their trusting and familial relationship, Whittler didn’t
need protection from him. When asked if he knew whether Whittler used the gun in
connection with their drug dealings, Jones responded that he did not know.
To corroborate Jones’s testimony that Whittler had possessed a gun during the
conspiracy, the government played recordings of two intercepted telephone calls between
Jones and Whittler. During the first of those calls, on August 7, 2009, Whittler discussed a
recent burglary at his home. Whittler said:
They climbed through my room window. Didn’t take nothing else in the
room. They went through my bottom drawer where I keep my money and all
that stuff. They left my money in there. They left everything else in there. All
they took was the scale, the TV, the PlayStation and all the video games.
. . . .
They left the money. Everything else. . . . Right there in the drawer....
[T]he banger was sitting right there. You know what I’m saying? The clip.
Everything. The Taser. Everything.
Jones asserted that, when Whittler mentioned the “banger,” he was referring to the gun
shown to Jones earlier that summer.
During the second recorded call, on August 29, 2009, Whittler told Jones that his
cousin had been shot and was “tryin’ to find something,” which, Jones testified, meant that
Whittler’s cousin was trying to find a gun. Jones had replied that Whittler “better let him get
that, what you got,” meaning, according to Jones, that Whittler should give his cousin his
gun. Whittler answered, “I’ll let him get that one, you let me get that one that you got”;
No. 12‐2756 Page 3
Jones explained that Whittler had meant he would give his cousin his gun only if
Jones would replace it with his gun.
During cross examination Whittler’s lawyer attacked Jones’s credibility. She
forced Jones to concede that he hadn’t told the government about Whittler’s gun until two
weeks before the defendant’s sentencing hearing, skipping opportunities to divulge that
information when he first started cooperating with the government in October 2009 and
when he testified before Whittler’s grand jury the following year. She also highlighted
Jones’s testimony at sentencing that he too possessed a gun, which contradicted an earlier
statement to the government denying that he ever owned a gun.
The government also introduced the toy guns recovered when Whittler was arrested to
support the proposed increase for possession of a dangerous weapon. The prosecutor
acknowledged, however, that she had no idea when Whittler acquired those toys and thus
inferring a connection to the conspiracy was difficult because they were recovered so long
after it had ended.
Whittler did not testify or present any evidence, but defense counsel argued that the
government had failed to show that he possessed a gun in connection with the drug
conspiracy. First, she argued that the government could not meet (what she insisted was) its
burden by showing only that Whittler talked about a gun during the course of the
conspiracy. Next, she argued that, even if Whittler did have a gun, a connection between the
gun and the conspiracy was “clearly improbable,” see U.S.S.G. § 2D1.1 cmt. n.11, because, she
asserted, (1) the burglary discussed during the August 7 telephone call had not occurred at
Whittler’s home, but rather at his girlfriend’s home, and (2) Whittler showed the gun to Jones
as a trusted friend and not as part of a drug transaction. The government countered that
Whittler’s friendship with Jones was irrelevant because, the prosecutor argued,
Whittler sold crack to his own customers. Whittler’s possession of the gun fit within the
rationale for the upward adjustment, the prosecutor continued, because there is an
increased danger when crack deals are made in close proximity to guns.
The district court applied the 2 level increase. Earlier during the sentencing
hearing, while ruling on an evidentiary objection to the drug quantity, the court had
explained that it would not credit any uncorroborated statements from Jones because his
testimony at the sentencing hearing and earlier before the grand jury had been rife with
inconsistencies. Still, the court reasoned that the August 7 call strongly corroborated
Jones’s testimony that Whittler had possessed a gun during the conspiracy. Whittler had
told Jones that the burglar “left the banger” but took the scale, which, the judge explained,
“is direct evidence of his involvement in the conspiracy and having drug paraphernalia at
the home where the weapon was, by his own acknowledgment.” The court added that the
August 29 call further corroborated Jones’s testimony that Whittler had kept a gun near
No. 12‐2756 Page 4
where he kept his drugs and money. And so it was not clearly improbable, the judge
concluded, that the gun was connected to the offense. Jones’s testimony plus the calls were
sufficient to support the increase, the court decided, and thus it declined to address the toy
gun argument.
On appeal Whittler contests the application of § 2D1.1(b)(1). The adjustment applies
“[i]f a dangerous weapon (including a firearm) was possessed,” U.S.S.G. § 2D1.1(b)(1), and
the commentary spells out that the increase “should be applied if the weapon was present,
unless it is clearly improbable that the weapon was connected to the offense,“ Id. § 2D1 .1
cmt. n.11; see United States v. Perez, 581 F.3d 539, 546 (7th Cir. 2009); United States v. Idowu, 520
F.3d 790, 793 (7th Cir. 2008). “Individuals who do no more than conspire to distribute
narcotics are nonetheless eligible for the enhancement, so long as they possess a firearm in
the course of the conspiracy.” United States v. Cashman, 216 F.3d 582, 587 (7th Cir. 2000). For §
2D1.1(b)(1) to apply, the government needed to prove by a preponderance of the evidence
that Whittler had possessed a weapon during the drug conspiracy. See United States v.
Rollins, 544 F.3d 820, 837 (7th Cir. 2008); United States v. Martin, 287 F.3d 609, 617 (7th Cir.
2002); Cashman, 216 F.3d at 587. Proof of possession would then shift to Whittler the burden of
demonstrating that a connection between the gun and the conspiracy was clearly
improbable. See U.S.S.G. § 2D1.1(b)(1) & cmt. n.11; United States v. McCauley, 659 F.3d 645,
652 (7th Cir. 2011); United States v. Are, 590 F.3d 499, 526 (7th Cir. 2009).
Whittler first argues that the government did not prove that he possessed a weapon.
The core of his argument is that Jones was unreliable, and so the district court should not
have relied on his testimony without corroboration. And though the court concluded that the
August 7 and 29 phone calls did corroborate Jones’s testimony, Whittler contends that the
August 7 call—most heavily relied on by the court—does not sufficiently corroborate Jones’s
testimony because Whittler never mentioned drugs and there is no evidence that the money
discussed was connected to drug sales.
Whittler is wrong about the import of the phone calls, though, in any event, his legal
argument is unfounded. At sentencing a district court may rely entirely on uncorroborated
testimony, see United States v. Johnson, 489 F.3d 794, 797 (7th Cir. 2007); United States v.
Galbraith, 200 F.3d 1006, 1012 (7th Cir. 2000), or credit some but not all portions of a witness’s
testimony, see United States v. Smith, 674 F.3d 722, 734 (7th Cir. 2012). We will accept a judge’s
credibility finding unless it is “so inconsistent or improbable on its face that no reasonable
factfinder could accept it.” United States v. Stewart, 536 F.3d 714, 720 (7th Cir. 2008) (quotation
marks and citation omitted). Here, Jones testified that he was at Whittler’s home on drug
business when the defendant showed him a gun. There is nothing inherently unbelievable
about that statement. To show that the district court was clearly erroneous for crediting Jones’s
testimony about seeing Whittler’s gun, Whittler needed to provide evidence demonstrating
that Jones was inaccurate. See United States v. Sainz Preciado, 566 F.3d 708, 713 (7th Cir. 2009).
No. 12‐2756 Page 5
He did not do so at sentencing and on appeal has not offered a compelling reason to disturb the
credibility finding made by the court, which is in the best position to evaluate the credibility of
a witness who offers conflicting testimony. See Morisch v. United States, 653 F.3d 522, 529 (7th
Cir. 2011); United States v. Pulley, 601 F.3d 660, 664 (7th Cir. 2010) (noting that credibility
finding can “virtually never be clear error”).
And aside from Jones’s testimony, the court concluded that Whittler’s admission to
having a ”banger” during the August 7 call, on its own, provided “direct evidence of his
involvement in the conspiracy and his having drug paraphernalia at the home where the
weapon was.” Whittler never contested Jones’s assertion that banger meant gun, and thus, in
addition to sufficiently corroborating Jones’s testimony, the August 7 call gave the court an
independent ground to conclude that Whittler possessed a weapon during the conspiracy.
See United States v. Johnson, 643 F.3d 545, 551–52 (7th Cir. 2011) (approving district court’s
reliance on discussion of crack during intercepted phone calls to make drug quantity finding;
remanding to consider crack to powder cocaine sentencing disparity); United States v.
Oros, 578 F.3d 703, 712 (7th Cir. 2009) (finding no clear error where, after defendant attacked
principal witness’s credibility, district court credited that witness’s testimony in light of
corroborating evidence).
Whittler also argues that, even if the government met its burden, he demonstrated
that a connection between his gun and the conspiracy was clearly improbable. Whittler
contends that Jones’s testimony establishes that he retrieved his gun not as part of a drug
transaction but simply to show it to a close relative. (Id.) Whittler further asserts that drugs
and guns typically must be found to apply § 2D1.1(b)(1) and, since authorities recovered
neither from his home, the district court erroneously applied the increase based on the
“mere talk of weapons.” (Id. at 26–27.)
The government presented evidence through Jones and two recorded phone calls,
which the district court relied on, that Whittler kept a gun and drug paraphernalia in the
same home. Instead of presenting contradictory evidence, defense counsel argued that
Jones’s concessions that he and Whittler enjoyed a trusting relationship and that fear did not
infiltrate their drug related interactions proved that “[t]here is no reason why a gun
would be involved in any kind of transaction.” But this reasoning, which presumes that
Whittler possessed the gun only on the single occasion where he showed it to Jones, is
frivolous. Jones’s testimony was offered to prove the existence of the gun, not its connection
to Whittler’s dealings with Jones. That Whittler and Jones got along does not mean that a
connection between the gun and Whittler’s drug sales to his own customers was clearly
improbable. See United States v. Orozco, 576 F.3d 745, 752 (7th Cir. 2009) (concluding that
absence of evidence that defendant used gun during drug transaction does not make it
clearly improbable that gun was connected to conspiracy); Cashman, 216 F.3d at 588
(concluding that upward adjustment was proper despite no evidence that defendant sold
No. 12‐2756 Page 6
drugs where gun was found or that he carried gun while making drug transactions; no
evidence suggested that gun and drug paraphernalia being found together was
coincidental). Whittler supplied no competing explanation for the gun, and thus the district
court could not have clearly erred by concluding that a connection between the gun and the
conspiracy was not clearly improbable. See United States v. Rea, 621 F.3d 595, 607 (7th Cir.
2010); United States v. Womack, 496 F.3d 791, 798 (7th Cir. 2007); United States v. Olson, 450
F.3d 655, 684–85 (7th Cir. 2006).
Finally, although Whittler asserts that physical recovery of guns, drugs, or both is
needed to apply § 2D1.1(b)(1), nothing in the language of the guideline, the relevant
commentary, or the decisions of this court supports his position. This court has found
statements or testimony about gun possession adequate to support the increase. See United
States v. Moreland, 703 F.3d 976, 990 (7th Cir. 2012) (upholding enhancement based on
statements that defendant’s sister followed his instructions to hide gun and drugs before
police arrived); United States v. Strode, 552 F.3d 630, 632, 636 (7th Cir. 2009) (concluding that
testimony from coconspirators who saw defendant with gun was sufficient to support
upward adjustment even though no gun or drugs were seized directly from defendant). So
to the extent that Whittler is asking us to impose a higher evidentiary standard for applying
§ 2D1.1(b)(1), we reject that argument.
AFFIRMED.