[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 7, 2009
No. 08-15700 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00391-CR-T-17-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERECK LANE,
a.k.a. D,
a.k.a. D-Lane,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 7, 2009)
Before BIRCH, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Dereck Lane appeals his 168-month sentence for conspiracy to possess with
intent to distribute 1000 kilograms or more of marijuana, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(vii), and 846. Lane argues that the district court erred in
applying a two-level enhancement for firearm possession under U.S.S.G.
§ 2D1.1(b)(1) because there was insufficient evidence that a co-conspirator was in
possession of the firearm. For the reasons that follow, we VACATE his sentence
and REMAND for further proceedings in light of this opinion.
I. BACKGROUND
On 10 June 2008, Lane pleaded guilty to conspiracy to possess with intent to
distribute 1000 kilograms or more of marijuana, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A)(vii), and 846. Lane and Maurice Hemingway were identified
as the organizers of a marijuana distribution operation in Pinellas County, Florida.
Lane and Hemingway set up residences known as “traps” in St. Petersburg,
Florida, where large quantities of marijuana were stored and distributed. On 25
October 2006, law enforcement officers executed a search warrant at a trap house
located at 2400 12th Street South, finding one pound of marijuana and a firearm
inside the residence. Lane, Hemingway, and other individuals were arrested and
charged with possession of marijuana and other offenses.
Under the Sentencing Guidelines, Lane’s final adjusted offense level was 35,
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which included a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(1) for
possession of a firearm. This, along with Lane’s criminal history category of I,
yielded a sentence range of 168 to 210 months of imprisonment.
At the sentencing hearing, Lane noted his objection to the firearm
enhancement, contending that he should not be held accountable for the firearm
since he was not arrested on the date of the search and was not charged with a
firearms offense. See R3 at 13-14. Lane also argued that, because he was not in
possession of the firearm, it was the government’s burden to show that a co-
conspirator constructively possessed the firearm before the burden shifted to Lane
to show that it was clearly improbable that the presence of the firearm was
connected to the possession of the one pound of marijuana. See id. at 18.
In response, the government called one witness, Frederick Hutson, who was
also indicted and convicted for the conspiracy. Hutson testified that Lane was
present at the time the trap house was searched and that Lane told him that a gun
was found in a sofa cushion, with an individual named Sheffield, who was not
charged in the indictment, lying on top of it. See id. at 43-45. When asked about
Sheffield’s role with respect to the distribution of marijuana, Hutson replied that,
“[f]rom [his] knowledge,” Sheffield distributed small amounts of marijuana that
“maybe he purchased himself and then sold small amounts himself.” Id. at 45.
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Hutson stated that he “believe[d]” Sheffield purchased the marijuana from
Hemingway. Id. On cross-examination, Hutson stated that he was not at the trap
house when it was searched, and that he did not know to whom the firearm
belonged. See id. at 54-55.
Based on Hutson’s testimony, the government argued that Sheffield was a
co-conspirator and that he was in constructive possession of the firearm since he
was lying on top of the cushion in which the firearm was located. See id. at 65.
Lane argued in response that there was no connection between himself and
Sheffield, and the fact that Sheffield may have been seated on a cushion with a gun
underneath was not sufficient to put him in possession, constructively or actually.
See id. at 66-67.
The district court overruled Lane’s objection to the firearm enhancement,
finding that the government had tied Sheffield into the conspiracy by presenting
evidence that he was an unindicted co-conspirator. See id. at 67, 70. Based on the
availability of the weapon under the couch, the district court stated that
“constructive possession . . . [was] satisfied.” Id. at 68. The district court then
stated that the government had “established by a preponderance of the evidence
that there [was] a foreseeable connection between the firearm and the offense.” Id.
at 69-70. The district court sentenced Lane to 168 months of imprisonment and 5
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years of supervised release. See id. At 75-76. This appeal follows.
II. DISCUSSION
“We review the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1)
for clear error, and the application of the Sentencing Guidelines to those facts de
novo.” United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006) (per curiam)
(quotation marks and citation omitted). “Pursuant to § 2D1.1(b)(1), if a defendant
possessed a dangerous weapon during a drug-trafficking offense, his offense level
should be increased by two levels.” United States v. Audain, 254 F.3d 1286, 1289
(11th Cir. 2001) (per curiam). The commentary to § 2D1.1(b)(1) states that “[t]he
adjustment should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G.
§ 2D1.1(b)(1), comment. (n.3) (Nov. 2008). In the context of a conspiracy case,
the § 2D1.1(b)(1) enhancement may be applied if the firearm is “found in a place
where acts in furtherance of the conspirac[y] took place.” Pham, 463 F.3d at 1246.
The government has the burden to demonstrate the proximity of the firearm
to the site of the charged offense by a preponderance of the evidence. See United
States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995) (per curiam). A preponderance of
the evidence standard requires the government to present reliable and specific
evidence. See United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995)
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(“Although not as rigorous as the reasonable doubt or clear and convincing
standards, the preponderance standard is not toothless. It is the district court’s duty
to ensure that the [g]overnment carries this burden by presenting reliable and
specific evidence.”). If the government successfully meets its initial burden, the
evidentiary burden then shifts to the defendant, who must demonstrate that a
connection between the weapon and the offense was “clearly improbable.” Pham,
463 F.3d at 1245 (quotation marks and citation omitted).
The U.S.S.G. § 2D1.1(b)(1) enhancement may be applied to a convicted
defendant when a firearm is possessed by a co-conspirator if the government
proves by a preponderance of the evidence that: “(1) the possessor of the firearm
was a co-conspirator; (2) the possession was in furtherance of the conspiracy; (3)
the defendant was a member of the conspiracy at the time of possession; and (4)
the co-conspirator possession was reasonably foreseeable by the defendant.”
United States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999) (emphasis omitted).
To prove that the possession was in furtherance of the conspiracy, the government
need show only that the firearm was present at the site of the charged offense,
unless it was “clearly improbable that the weapon was connected with the offense.”
United States v. Fields, 408 F.3d 1356, 1359 (11th Cir. 2005) (quotation marks and
citation omitted). Possession may be proved through either actual or constructive
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possession. See United States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir.
2005). “Constructive possession exists when a [person] has ownership, dominion,
or control over an object itself or dominion or control over the premises in which
the object is concealed.” Id. (quotation marks and citation omitted).
The government argues that, because the evidence showed that the firearm
was present at a place where acts in furtherance of the conspiracy took place, it met
its burden, and the burden shifted to Lane to show that a connection between the
firearm and the offense was clearly improbable. Such a showing, however, does
not discharge the possession requirement set forth in § 2D1.1(b)(1). In cases
where we have stated that the presence of the weapon at the site of the charged
offense is all that the government needs to show, the defendant’s possession of the
firearm was clear. See United States v. Trujillo, 146 F.3d 838, 847 (11th Cir.
1998) (affirming a § 2D1.1(b)(1) enhancement when officers found a firearm that
belonged to the defendant in a warehouse where the charged conduct took place);
United States v. Hansley, 54 F.3d 709, 715-16 (11th Cir. 1995) (affirming a
§ 2D1.1(b)(1) enhancement when officers found a firearm and other drug-related
items in the defendant’s home).
When possession of the firearm by the defendant has been at issue before
our court, it has generally been the case that a co-conspirator clearly had
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possession of the firearm, and the defendant claimed that he should not be
responsible for the firearm because he was not the possessor and/or because he was
unaware of the firearm. See e.g., United States v. Martinez, 924 F.2d 209, 210
(11th Cir. 1991) (affirming a § 2D1.1(b)(1) enhancement when the possessor of the
firearm was charged as a co-conspirator, even though the defendant claimed he was
unaware of the firearm) (per curiam); United States v. Otero, 890 F.2d 366, 367
(11th Cir. 1989) (affirming a § 2D1.1(b)(1) enhancement when the defendant’s co-
conspirator pleaded guilty to possession of a firearm) (per curiam). In those cases,
we have applied the analysis set forth in Gallo (or its predecessor, Otero) for
applying the enhancement to a defendant when a co-conspirator was the possessor
of the firearm. See Gallo, 195 F.3d at 1284. For instance, in Fields, a firearm was
found only at a co-conspirator’s home. See Fields, 408 F.3d at 1358. Even though
we found that the co-conspirator’s home was a place where acts in furtherance of
the conspiracy took place, we ensured that each condition set forth in Gallo was
met before determining that the enhancement could be applied to the defendant.
See id. at 1359. The fact that the firearm was found at a place where acts in
furtherance of the conspiracy took place established only that one of the four Gallo
conditions was met. It did not, by itself, justify the application of the U.S.S.G.
§ 2D1.1(b)(1) enhancement. See id.
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The district court found that Sheffield was a co-conspirator in constructive
possession of the firearm and attributed his possession to Lane. This conclusion,
however, was based solely on the testimony of Hutson, who admitted that he was
not at the trap house at the time of the search. Hutson also conceded that he did
not know to whom the firearm belonged. Furthermore, Hutson did not state
definitively that Sheffield was involved in the conspiracy. From this evidence, it is
not clear whether Sheffield was a distributor for the conspiracy or whether he was
simply a buyer who then sold the drugs for his own profit. See United States v.
Solomon, 686 F.2d 863, 876 (11th Cir. 1982) (“The relationship of buyer and seller
absent any prior or contemporaneous understanding beyond the mere sales
agreement does not prove a conspiracy . . . [because] [t]here is no joint objective.”)
(quotation marks and citation omitted). Even if the district court could infer that
Sheffield was responsible for the firearm in the couch, Hutson’s vague and general
testimony was not enough to prove by a preponderance of the evidence that
Sheffield was in fact a co-conspirator.
Moreover, even if it could be assumed that Sheffield was a co-conspirator in
possession of the firearm, the district court still erred because it did not make a
finding with respect to each of the other conditions set forth in Gallo: that the
possession was in furtherance of the conspiracy, that Lane was a member of the
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conspiracy at the time of possession, and that Sheffield’s possession was
reasonably foreseeable by Lane. See Gallo, 195 F.3d at 1284 (vacating the
defendant’s sentence and remanding because the district court failed to make a
finding regarding the foreseeability of the co-conspirators’ possession of the
firearms).
III. CONCLUSION
The only evidence presented to establish Sheffield’s role as a co-conspirator
and possession of the firearm was the vague and general testimony of Hutson, who
was not present at the time of the search. This evidence was not specific enough to
prove by a preponderance of the evidence that a co-conspirator was in possession
of the firearm. Therefore, the district court clearly erred in applying the
enhancement to Lane based on a co-conspirator’s possession. Accordingly, we
VACATE Lane’s sentence and REMAND for further proceedings consistent with
this opinion.
VACATED AND REMANDED.
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