[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 19, 2009
No. 08-15453 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00328-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT JACOB CHAPPELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(June 19, 2009)
Before MARCUS, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Robert Chappell appeals his sentence of 77 months of imprisonment for the
possession of ammunition by a convicted felon. 18 U.S.C. § 922(g)(1). Chappell
argues that he was entitled to a downward adjustment for his acceptance of
responsibility, and he challenges the enhancement of his sentence for possession of
ammunition in connection with another felony offense. We affirm.
I. BACKGROUND
While Chappell was a passenger in Bobby Glass’s vehicle, the two men
were arrested on outstanding arrest warrants. Officer William Hudson searched the
vehicle and discovered in the passenger floorboard fragments of a crystal substance
that he believed to be methamphetamine and a black book bag and under the
passenger seat a .380 caliber handgun. Chappell admitted to an officer that he had
crushed the crystal substance with his shoe, and Chappell admitted ownership of
the book bag but denied knowledge of the gun. Inside the book bag, officers
discovered seven rounds of .380 caliber ammunition. Chappell later told
authorities that he “t[oo]k responsibility for making the decision to get in the car
that night. I knew the person I was riding with, and that I was on state probation. I
knew I shouldn’t have been in that car.”
Chappell was indicted for possession of a firearm by a convicted felon, 18
U.S.C. § 922(g)(1), and possession of ammunition by a convicted felon, id.
Chappell agreed to plead guilty to the ammunition charge and submit to the court a
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factual resume in exchange for a recommendation by the government for a
sentence at the low end of the guideline range and dismissal of the firearm charge.
In the final paragraph of his factual resume, Chappell admitted that he had
“knowingly possessed [the seven (7) rounds of .380 caliber] ammunition” that
police discovered in his book bag.
At the change of plea hearing, Chappell acknowledged that the government
would have to prove that he knowingly possessed ammunition. Chappell also
agreed that the government could prove the facts contained in his factual resume.
The district court accepted Chappell’s plea of guilt.
The presentence investigation report provided a base offense level of twenty,
United States Sentencing Guidelines § 2K2.1(a)(4)(A) (Nov. 2007), and increased
that level by four points for possession of ammunition in connection with another
felony offense, id. § 2K2.1(b)(6). The report also decreased the base level by three
points because Chappell accepted responsibility for his conduct and timely notified
authorities of his intent to plead guilty. Id. § 3E1.1. With a criminal history of IV,
the report provided a sentencing range between 57 and 71 months of
imprisonment.
Chappell objected to the presentence report and challenged the application
of section 2K2.1(b)(6). Chappell argued that he had not conceded in his factual
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resume actual knowledge of the bullets found in his book bag and he had pleaded
guilty because the government could prove a prima facie case based on his “‘joint
constructive possession’ of certain inculpatory evidence found in the vehicle.”
Chappell added that he had taken and continued to take “responsibility for his
conduct in this matter.”
During the sentencing hearing, Chappell repeated his objection to the
enhancement. Chappell acknowledged that the government could “technically”
argue that the ammunition was discovered “during the course of possession of
drugs that were found in the car[,]” but he argued that he had never been charged
with a drug offense. Based on Chappell’s argument, the district court questioned
whether Chappell had accepted responsibility for the possession of ammunition
when he disavowed knowledge of the bullets. Chappell responded that “after he
got in the car, he knew or should have known” about the ammunition and he was
unaware how the ammunition got into his backpack. The district court stated that
Chappell could not be held responsible for the ammunition without actual
knowledge and the court was not inclined to reduce the offense level for an
acceptance of responsibility. The court continued the hearing for Chappell and
counsel to discuss the matter and for the government to call witnesses to establish
that Chappell was subject to section 2K2.1(b)(6).
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When the hearing resumed, the district court stated that Chappell construed
his guilty plea as an “Alford type plea.” Chappell confirmed that he contested
whether he possessed the ammunition but acknowledged that the government could
prove the charge. The government asked the district court to consider whether
Chappell’s argument was consistent with an acceptance of responsibility. After
Chappell again denied actual knowledge of the ammunition, the court ruled that
Chappell had not accepted responsibility. The government presented testimony
from Officer Hudson about the traffic stop.
Based on the officer’s testimony and Chappell’s admissions, the court found
“that the possession of the ammunition was likely to facilitate [the possession of
the methamphetamine], if not that it actually did facilitate that,” and applied the
four-level enhancement. The district court calculated Chappell’s offense level at
24 and ruled, based on the guidelines and the statutory factors, “that the low end of
the guidelines provide for an appropriate sentence.” The district court sentenced
Chappell to 77 months of imprisonment followed by three years of supervised
release. Counsel objected to the application of section 2K2.1(b)(6).
II. STANDARDS OF REVIEW
We review the interpretation and application of the Guidelines de novo and
related findings of fact for clear error. United States v. Foley, 508 F.3d 627, 632
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(11th Cir. 2007). Because the district court is in a unique position to evaluate
whether a defendant has accepted responsibility, we review with “great deference”
the decision to deny a reduction and will not overturn that decision “unless the
facts in the record clearly establish that the defendant has accepted responsibility.”
United States v. Moriarty, 429 F.3d 1012, 1022–23 (11th Cir. 2005) (per curiam).
Objections or arguments that are not raised in the district court are reviewed for
plain error. United States v. Beckles, 565 F.3d 832, 842 (11th Cir. 2009).
III. DISCUSSION
Chappell challenges his sentence on two grounds. First, Chappell argues
that he was entitled to a downward adjustment for his acceptance of responsibility.
Second, Chappell argues for the first time on appeal that the ammunition did not
facilitate or have the potential to facilitate the possession of methamphetamine.
These arguments fail.
The record supports the denial of the downward adjustment. A defendant
may receive a two-level downward adjustment of his offense level if he “clearly
demonstrates acceptance of responsibility for his offense[.]” U.S.S.G. § 3E1.1(a).
A plea of guilty before trial and truthful admissions about the charged conduct
constitutes “significant evidence of acceptance of responsibility[,]” but may be
“outweighed by conduct . . . that is inconsistent with such acceptance . . . .” Id. §
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3E1.1 cmt. n.1. Chappell admitted in his factual statement and during his plea
colloquy that he “knowingly possessed” the ammunition found in his book bag, but
he disavowed that admission after the court accepted his plea of guilt. The district
court did not clearly err by denying Chappell a downward adjustment for
acceptance of responsibility.
The record also supports the enhancement of Chappell’s sentence for
possessing ammunition in connection with another felony offense. A defendant is
subject to a four-level enhancement if he “used or possessed any firearm or
ammunition in connection with another felony offense[.]” U.S.S.G. § 2K2.1(b)(6).
The enhancement applies “if the firearm or ammunition facilitated, or had the
potential of facilitating, another felony offense.” Id. cmt. n.14(A). The district
court was entitled to find that the ammunition had the potential to facilitate
Chappell’s felony possession of methamphetamine. In the absence of a contrary
interpretation from this Court or the Supreme Court, the district court did not
plainly err by applying the enhancement.
IV. CONCLUSION
Chappell’s sentence is AFFIRMED.
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