United States v. Gary Clifford Chupurdy

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 5, 2008
No. 08-11066 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket Nos. 07-00223-CR-BAE-4
07-00312-CR-BAE

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GARRY CLIFFORD CHUPURDY,
a.k.a. Garry C. Chupurdy,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
_________________________

(November 5, 2008)

Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:
Garry Clifford Chupurdy appeals his concurrent 220-month sentences for

importation of marijuana, conspiracy to import marijuana, conspiracy to possess

with intent to distribute marijuana, and money laundering.1 First, Chupurdy argues

that the cooperation-agreement provisions of U.S.S.G. § 1B1.8(a) were violated

when the district court held him accountable at sentencing for 47.09 kilograms of

hashish oil found in Chupurdy’s two storage sheds because, Chupurdy claims, law

enforcement agents were not aware of the existence of the hashish oil until he told

them about it. Next, Chupurdy argues that the court erred in its application of the

two-level increase for possession of a firearm, pursuant to U.S.S.G. § 2D1.1(b)(1)

because, he claims, the weapons he admitted that he possessed were kept aboard

his 78-foot catamaran, the “CAT’S MEOW,” solely for protection from pirates.

For the reasons set forth more fully below, we affirm.

I. LAW & ANALYSIS

A. Section 1B1.8’s Cooperation-Agreement Provisions

We review for clear error the district court’s factual determination of the

1
As a result of the charges in two separate indictments filed in the Southern District of
Georgia (“CR407-00223”) and the District of South Carolina (“CR407-00312”), Chupurdy pled
guilty to: (1) importation of 100 kilograms of marijuana, in violation of 21 U.S.C. § 952(a), CR407-
00223/Count 2; (2) conspiracy to import 1,000 kilograms of marijuana, in violation of 21 U.S.C.
§ 963, CR407-00312/Count 1; (3) conspiracy to possess with intent to distribute and to distribute
1,000 kilograms or more of marijuana, in violation of 21 U.S.C. § 846, CR407-00312/Count 2; and
(4) money laundering, in violation of 18 U.S.C. § 1956(h), CR407-00312/Count 3. Chupurdy
received concurrent sentences of 220 months’ imprisonment for all four convictions.

2
drug quantity for which Chupurdy is accountable. United States v. Rodriguez, 398

F.3d 1291, 1296 (11th Cir. 2005). Where a defendant alleges a violation of

§ 1B1.8 in the district court, we review the district court’s factual findings for clear

error. United States v. Pham, 463 F.3d 1239, 1243 (11th Cir. 2006). “For a

factual finding to be ‘clearly erroneous,’ this court, ‘after reviewing all of the

evidence, must be left with a definite and firm conviction that a mistake has been

committed.’” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir.

2004) (citation omitted).

Section 1B1.8 provides that,

[w]here a defendant agrees to cooperate with the government by
providing information concerning unlawful activities of others, and as
part of the cooperation agreement the government agrees that
self-incriminating information provided pursuant to the agreement
will not be used against the defendant, then such information shall not
be used in determining the applicable guideline range . . .

U.S.S.G. § 1B1.8(a). However, the provision expressly provides that, inter alia, it

“shall not be applied to restrict the use of information . . . known to the government

prior to entering the agreement.” U.S.S.G. § 1B1.8(b)(1). In addition, we have

held that “so long as the information is obtained from independent sources . . ., it

may be used at sentencing without violating § 1B1.8.” Pham, 463 F.3d at 1244.

“However, ‘the government may not evade U.S.S.G. § 1B1.8(a) where the

evidence was elicited solely as a result of, or prompted by, the defendant’s

3
cooperation.” Id.

The district court did not clearly err in holding Chupurdy accountable for

3,488.2 kilograms of marijuana, which included the marijuana equivalency of

47.09 kilograms of hashish oil that was found in the two storage sheds.2 Law

enforcement agents had obtained search warrants for the storage sheds prior to

Chupurdy’s arrest and disclosure, and one of the agents testified at Chupurdy’s

sentencing hearing that (1) agents were preparing to execute the warrants at the

time of Chupurdy’s disclosure, and (2) the warrants would have been executed

regardless of whether Chupurdy agreed to cooperate. Thus, Chupurdy’s disclosure

did not prompt agents to search those locations. In other words, the hashish oil

discovered in the storage sheds was not elicited solely as a result of Chupurdy’s

cooperation, even though agents were unaware of its existence prior to Chupurdy’s

disclsoure. See Pham, 463 F.3d at 1244. As such, the district court’s calculation

of Chupurdy’s base offense level did not violate § 1B1.8(a).3 See id.

B. Two-level firearm increase, pursuant to § 2D1.1(b)(1)

We review “the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1)

2
Some of the hashish oil (24.23 kilograms) was recovered from a search of Chupurdy’s
smaller Bertram boat that had been taken to one of the storage sheds.
3
The hashish oil that was found at the bottom of the ocean was not included in the
calculation of Chupurdy’s base offense level. Thus, to the extent Chupurdy argues otherwise, his
argument lacks merit.

4
for clear error, and the application of the Sentencing Guidelines to those facts de

novo.” United States v. Gallo, 195 F.3d 1278, 1280-81 (11th Cir. 1999). “The

district court’s factual findings for purposes of sentencing may be based on, among

other things, evidence heard during trial, undisputed statements in the PSI, or

evidence presented during the sentencing hearing.” United States v. Polar, 369

F.3d 1248, 1255 (11th Cir. 2004).

Pursuant to § 2D1.1(b)(1), a defendant’s offense level should be increased

by two levels “[i]f a dangerous weapon (including a firearm) was possessed.”

U.S.S.G. § 2D1.1(b)(1). Application Note 3 of the provision provides:

The adjustment should be applied if the weapon was present, unless it
is clearly improbable that the weapon was connected with the offense.
For example, the enhancement would not be applied if the defendant,
arrested at his residence, had an unloaded hunting rifle in the closet.

U.S.S.G. § 2D1.1, comment. (n.3). “The government has the burden under

§ 2D1.1 to demonstrate the proximity of the firearm to the site of the charged

offense by a preponderance of the evidence.” United States v. Audain, 254 F.3d

1286, 1289 (11th Cir. 2001). The government need not prove that the firearm was

used to facilitate the distribution of drugs. Id. at 1289-90. “If the government is

successful, the evidentiary burden shifts to the defendant to demonstrate that a

connection between the weapon and the offense was ‘clearly improbable.’” Id. at

1289 (citation omitted).

5
Chupurdy’s argument that the district court erred in applying § 2D1.1(b)(1)

is without merit. Chupurdy concedes that the government met its burden, thus,

Chupurdy was required to demonstrate that a connection between the weapons and

the offense was clearly improbable, which he has failed to do. See U.S.S.G.

§ 2D1.1, comment. (n.3); Audain, 254 F.3d at 1289. Although Chupurdy claims

that the weapons were onboard the CAT’S MEOW to protect the crew from

pirates, his claim does not diminish the likelihood that the weapons also could have

been used to protect the large quantities of drugs that were being transported.4 See

Audain, 254 F.3d at 1289. Accordingly, the district court did not clearly err in

applying the two-level increase.

AFFIRMED.

4
This is true regardless of the other crew members’ failure to admit to the weapons’
whereabouts and Chupurdy’s forthcomingness with authorities.