Case: 20-50597 Document: 00515959202 Page: 1 Date Filed: 07/30/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 30, 2021
No. 20-50597 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Tiffany Rene Sutton,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-10-2
Before Clement, Haynes, and Wilson, Circuit Judges.
Per Curiam:*
Tiffany Rene Sutton pleaded guilty to one count of conspiracy to
possess with intent to distribute 50 grams or more of actual
methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A), and one count of possession with intent to distribute five grams
or more of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-50597
and (b)(1)(B). On appeal, she argues that the district court erred: (1) in
assessing a two-level dangerous weapon enhancement under U.S. Sentencing
Guideline § 2D1.1(b)(1), (2) in failing to make particularized findings
regarding her relevant conduct in the conspiracy, and (3) in disregarding her
arguments for a downward variance, resulting in a procedurally unreasonable
sentence. For the following reasons, we AFFIRM in part, REVERSE in
part, and REMAND for resentencing.
I. Background
Investigators with the Ector County Sheriff’s Office Special
Investigations Unit detained Sutton after surveilling a residence that was
known to be involved in the sale and distribution of methamphetamine. On
the night of Sutton’s detention, investigators had observed a vehicle arrive at
that residence to pick up Christopher Aaron Davidson, who carried a black
backpack.
Investigators initiated a traffic stop after that vehicle failed to signal
and discovered Jordan Tavarez at the wheel, Sutton in the passenger front
seat, and Davidson in the back seat. The investigators detained Tavarez after
a record check revealed an active warrant for her arrest. After the
investigators asked them to, both Sutton and Davidson exited the vehicle.
They searched Davidson but found no contraband on his person. However,
after Tavarez asked for a jacket from the vehicle, the investigators observed
a loaded Smith and Wesson handgun located near where Davidson had been
sitting. Investigators then detained Sutton and Davidson.
The investigators conducted an inventory search of the vehicle,
discovering evidence of drug trafficking, including (among other items): a
purse containing a soda can with a false compartment containing heroin,
actual methamphetamine, a digital scale, a paper ledger, and a small amount
of currency. They also found a backpack that contained two live 9mm
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rounds, a glass smoking pipe with methamphetamine residue, a digital scale,
and a large amount of baggies.
Investigators arrested Sutton. She agreed to speak to investigators.
She claimed ownership of the purse but not of the seized narcotics.
A later investigation revealed that Sutton had obtained heroin and
methamphetamine from her friend and roommate, Kyle Myers, who was not
in the car. Like Sutton, Myers was arrested. He also agreed to speak to
investigators. He admitted that he picked up the drugs, placed them in his
RV, and sold methamphetamine, but he denied selling anything else. He also
reported that Sutton sold drugs, but not on his behalf.
Sutton ultimately pleaded guilty to one count of conspiracy to possess
with intent to distribute 50 grams or more of actual methamphetamine, in
violation of 21 U.S.C §§ 846, 841(a)(1), and 841(b)(1)(A) (“Count One”),
and one count of possession with intent to distribute five grams or more of
actual methamphetamine, in violation of 21 U.S.C §§ 841(a)(1), (b)(1)(B)
(“Count Two”). Notably, she signed a factual basis document in connection
with her guilty plea in which she admitted “that she conspired with MYERS
to possess with intent to distribute a quantity of Methamphetamine.”
In Sutton’s presentence investigation report (“PSR”), the probation
officer identified Myers as Sutton’s codefendant and coconspirator. Finding
Sutton accountable for seventy-six thousand kilograms of converted drug
weight and applying U.S. Sentencing Guideline § 2D1.1(a)(5), the PSR
assessed a base offense level of 36. The total drug weight included both the
drugs found in the vehicle that Sutton was a passenger in, as well as the
converted drug equivalent from money found in Myers’s and her residence.
The PSR recommended a two-level enhancement under U.S. Sentencing
Guideline § 2D1.1(b)(1) on the grounds that “a dangerous weapon . . . was
possessed” in connection with her offense conduct, apparently referencing
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the weapon found in the car near Davidson’s seat. After a recommended
three-level reduction for acceptance of responsibility, Sutton’s total offense
level (35) combined with her criminal history category (I) yielded a Guideline
range of 168 to 210 months of imprisonment. Her convictions also carried a
ten-year minimum prison term for Count One and a five-year minimum for
Count Two.
Sutton objected to the two-level dangerous weapon enhancement,
which the probation officer responded to in an addendum to the PSR (the
“Addendum”). At sentencing, she renewed her objection to the PSR and
argued for a sentence below the Guidelines range. The district court
overruled the objection, found the Guidelines range “to be fair and
reasonable,” adopted the PSR, and, relying on the probation officer’s
response in the Addendum, sentenced Sutton to two concurrent terms of 168
months of imprisonment, with concurrent terms of five years of supervised
release to follow. Sutton timely appealed.
II. Jurisdiction & Standard of Review
The district court had jurisdiction over Sutton’s claims under 18
U.S.C. § 3742. We have jurisdiction to review the district court’s final
decision under 28 U.S.C. § 1291.
For properly preserved claims of procedural error, we review the
district court’s interpretation and application of the Sentencing Guidelines
de novo and its findings of fact for clear error. United States v. Odom, 694
F.3d 544, 546 (5th Cir. 2012) (per curiam). We review unpreserved claims,
however, for plain error. United States v. Williams, 620 F.3d 483, 493 (5th
Cir. 2010). To prevail on such review, the defendant must demonstrate that:
(1) the district court erred, (2) the error was “clear or obvious,” and (3) the
error affected the defendant’s “substantial rights.” Puckett v. United States,
556 U.S. 129, 135 (2009). If those three prongs are satisfied, we may remedy
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the error if it “seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (brackets and quotation omitted).
III. Discussion
On appeal, Sutton primarily argues that the district court erred in
assessing her a two-level dangerous weapon enhancement under U.S.
Sentencing Guideline § 2D1.1(b)(1). Specifically, Sutton contends that the
Government failed to show that she possessed the firearm at issue or that she
was part of any joint undertaking with Davidson, who possessed the firearm.
Sutton also argues that the error was not harmless because it resulted in an
increased sentencing range.
Because Sutton preserved this challenge, we review the district
court’s interpretation and application of the Sentencing Guidelines de novo
and its findings of fact for clear error. Odom, 694 F.3d at 546. Under
Guideline § 2D1.1(b)(1), defendants convicted of a drug trafficking offense
receive a two-level enhancement “[i]f a dangerous weapon (including a
firearm) was possessed.” 1 For the enhancement to apply, the Government
must prove possession of a firearm by a preponderance of the evidence.
United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010). “If the
[G]overnment satisfies this burden, then the burden shifts and the defendant
must show that it is clearly improbable that the weapon was connected to the
offense.” United States v. Rodriguez-Guerrero, 805 F.3d 192, 195 (5th Cir.
2015).
1
The enhancement “reflects the increased danger of violence when drug
traffickers possess weapons,” and it is warranted “if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense.” U.S. Sent’g
Guidelines Manual (“U.S.S.G.”) § 2D1.1, cmt. n.11(A) (U.S. Sent’g Comm’n
2018).
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The Government can prove possession for the purposes of a
§ 2D1.1(b)(1) enhancement by demonstrating that the defendant “could
have reasonably foreseen” that another individual involved in the
commission of the offense would possess the weapon. 2 Zapata-Lara, 615
F.3d at 390 (quotation omitted). Because “firearms are ‘tools of the trade’
of those engaged in illegal drug activities,” the Government can establish an
inference of possession if it proves “that another participant knowingly
possessed the weapon while he and the defendant committed the offense by
jointly engaging in concerted criminal activity involving a quantity of
narcotics sufficient to support an inference of intent to distribute.” United
States v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990) (quotation
omitted). Critically, however, it must be determined that the coconspirator,
in fact, knowingly possessed the weapon at issue; “only then can the court
determine whether there existed the required link between the non-
possessing defendant and the weapon by finding that the co-participant’s
possession was foreseeable to the defendant.” Zapata-Lara, 615 F.3d at 391.
We conclude that the Government did not meet its burden. The
adopted PSR and Addendum do not cite to any evidence establishing that
Sutton and Davidson were coconspirators jointly involved in criminal
activity, nor do they provide any analysis regarding the possession of the gun.
In addition, neither the PSR nor the Addendum contained any indication or
2
The Government may also demonstrate possession with evidence that the
defendant “personally possessed the weapon,” though it failed to do so here. Zapata-Lara,
615 F.3d at 390. There is no evidence that Sutton possessed the weapon; the evidence
suggests that the weapon belonged to Davidson, due to its temporal and spatial proximity
to him in the vehicle, with nothing suggesting it was even in Sutton’s view. See id. (stating
that personal possession may be shown by “a temporal and spatial relationship of the
weapon, the drug trafficking activity, and the defendant”).
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evidence that would support the conclusion that Davidson’s possession of
the firearm was reasonably foreseeable to Sutton.
Despite the lack of factual support for any of these critical questions,
the Government maintains that the district court did not clearly err because
the Addendum also “cited to a case with similar circumstances.” 3 The
Government’s suggested implication, of course, is that the district court
resolved this case based on findings in that allegedly analogous case. But the
Addendum fails to provide any analysis demonstrating that similarity. We
decline the Government’s invitation to stack inference on inference to
resolve issues the Addendum itself did not. United States v. Evbuomwan, 992
F.2d 70, 74 (5th Cir. 1993) (noting that “[w]e do not tolerate inferences based
on inferences”); see also United States v. Hammond, 201 F.3d 346, 351 (5th
Cir. 1999) (per curiam) (concluding that, to impose liability based on a third
party’s misconduct, a district court must make findings that: (1) the
defendant agreed to jointly undertake criminal activity with those parties,
(2) the misconduct by the third parties was within the scope of that
agreement, and (3) the third-parties’ misconduct was foreseeable to the
defendant); U.S. Sent’g Guidelines Manual (“U.S.S.G.”)
§ 1B1.3(B) (U.S. Sent’g Comm’n 2018). We conclude that no evidence
3
The case the probation officer and the district court relied on—United States v.
Montelongo, 539 F. App’x 603 (5th Cir. 2013) (per curiam)—is not as similar as the
Government suggests. In fact, that case is readily distinguishable. In Montelongo, the
district court explicitly concluded that the coconspirator “possessed the firearm in
connection with the conspiracy in which he and [the defendant] participated and that [the
defendant] could have reasonably foreseen that [the coconspirator] would possess a
weapon in furtherance of their jointly undertaken criminal activity.” Id. at 606–07. Unlike
Montelongo, the district court here did not establish (1) who possessed the gun; (2) whether
Sutton and Davidson jointly undertook a criminal activity; or (3) whether Sutton could
have reasonably foreseen Davidson would possess the gun in furtherance of such a
conspiracy. In short, many of the necessary findings in Montelongo are notably absent in
this case.
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submitted supported this enhancement; accordingly, we reverse the district
court’s application of the two-level dangerous weapon enhancement,
necessitating a remand for resentencing. 4
Sutton makes two other arguments, both of which are unpreserved
and lack merit. First, Sutton argues that the district court erred in failing to
make particularized findings regarding her relevant conduct concerning the
charge of conspiracy to possess with intent to distribute a controlled
substance. 5 However, by adopting the PSR, the district court made implicit
findings regarding Sutton’s relevant conduct, including (1) that Myers and
Sutton were coconspirators in a conspiracy to possess with the intent to
distribute controlled substances; (2) that Myers’s possession of distributable
amounts of controlled substances and the paraphernalia of distribution was
“within the scope of that agreement”; and (3) that—given their conspiracy
to distribute—Myers’s possession of distributable quantities was reasonably
foreseeable to Sutton. See United States v. Carreon, 11 F.3d 1225, 1231 (5th
Cir. 1994) (acknowledging that a district court can “make implicit findings
by adopting the PSR”). Because the district court’s adopted findings do not
leave us to “second guess” the basis for its decision, 6 the court did not plainly
4
The Government does not contend that such an error would have been harmless.
5
Sutton also argues that the district court plainly erred in failing to consider her
personal drug use when calculating the drug quantity attributable to her. This argument is
foreclosed by United States v. Clark, in which we held that a court may consider amounts
of drugs for personal use when calculating a defendant’s base offense level in a drug
conspiracy case. 389 F.3d 141, 142 (5th Cir. 2004) (per curiam). Sutton’s contention that
Clark has been overruled “sub silentio” is unpersuasive.
6
Notably, in connection with her guilty plea, Sutton candidly admitted “that she
conspired with MYERS to possess with intent to distribute a quantity of
Methamphetamine.”
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err in failing to make particularized findings regarding Sutton’s relevant
conduct. Id. (internal quotation marks omitted).
Second, Sutton argues that the district court imposed a procedurally
unreasonable sentence by disregarding her arguments for a downward
variance. We disagree. The district court provided Sutton a procedurally
adequate explanation by listening to each argument, reading letters written
on her behalf by third parties, considering and adopting the PSR, expressly
finding the Guidelines range to be fair and reasonable in light of factors listed
in § 3553(a), and declaring that it would not depart from the Guidelines. See
Rita v. United States, 551 U.S. 338, 358 (2007) (holding that the sentencing
court’s rejection of a downward variance was legally sufficient based on
similar facts). Therefore, the district court did not plainly err in sentencing
Sutton.
Accordingly, we REVERSE the district court’s application of the
two-level dangerous weapons enhancement and REMAND for
resentencing. We AFFIRM the district court’s judgment in all other
respects.
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