United States Court of Appeals,
Eleventh Circuit.
No. 94-8197.
UNITED STATES of America, Plaintiff-Appellee,
v.
Dorcas Abike ADUWO, aka Joyce Omolakake Taiwo, aka Joyce Tawuo,
aka Joyce Labeke Atilade, Defendant-Appellant.
Sept. 19, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-CR-47), J. Owen Forrester, Judge.
Before ANDERSON and BIRCH, Circuit Judges, and JOHNSON, Senior
Circuit Judge.
ANDERSON, Circuit Judge:
Dorcas Abike Aduwo pled guilty to two counts of making false
statements in the acquisition of firearms, 18 U.S.C. § 922(a)(6),
and one count of possession of firearms by a convicted felon, 18
U.S.C. §§ 922(g) and 924(a), in connection with two purchases of
9mm handguns. Because Aduwo later participated in an attempted
armed robbery in which one of these guns was used, the sentencing
judge applied the cross-reference provision of U.S.S.G. § 2K2.1
(Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition), § 2K2.1(c) (Nov.1990), and sentenced Aduwo under
U.S.S.G. § 2B3.1 (Robbery) (Nov. 1990).1 Aduwo's appeal raises
1
The district court applied the sentencing guidelines
effective November 1, 1990. Generally a sentencing court should
apply the guidelines in effect at the time of sentencing. 18
U.S.C. § 3553(a)(4); United States v. Lance, 23 F.3d 343, 344
(11th Cir.1994). Thus, under the general rule, the November 1993
guidelines would have been applicable because Aduwo was sentenced
in February of 1994. However if, under the guidelines in effect
at sentencing, application of a post-offense amendment to the
guidelines would substantially disadvantage the defendant, the
sentencing court should apply the guidelines in effect at the
only one issue; Aduwo argues that the district court incorrectly
applied the § 2K2.1(c) cross-reference provision because Aduwo was
not in possession of a firearm during the attempted armed robbery
for the purpose of § 2K2.1(c). We affirm.
I. FACTS
At the behest of her boyfriend, Romeo Anthony Brown, Aduwo
made two purchases of 9mm handguns. On August 11, 1991, Aduwo
purchased five Glock 9mm handguns and five Taurus 9mm handguns.
Several days later, on August 16, Aduwo purchased nine more Glock
9mm handguns. At each handgun purchase, Aduwo certified on ATF
Form 4473, a firearms transaction record, that she had never been
convicted of a felony. In fact, Aduwo had been convicted of a
felony in 1989.
In January of 1992, Aduwo participated in an attempted "drug
rip-off" with Brown. Brown, Aduwo, and a third conspirator
negotiated a sale of five kilograms of cocaine with undercover
agents. They did not intend to deliver cocaine, but instead
planned to rob the buyers of $115,000 by exchanging a canvas bag
containing telephone books for the money. When the undercover
agents arrested them at the scene of the exchange, Brown was in
possession of one of the 9mm Glocks purchased by Aduwo on August
16, 1991, but Aduwo had no weapon. Aduwo was indicted and
prosecuted for this crime in Georgia state court; in that
time of the offense instead. Id. The November 1990 guidelines
were in effect when Aduwo made the illegal firearm purchases.
Because the parties do not object to the district court's
application of the November 1990 guidelines, we assume without
deciding that this case is governed by the exception rather than
the general rule.
proceeding, she pled guilty to criminal attempt to commit armed
robbery and was sentenced to four years imprisonment.
In this proceeding, Aduwo was charged with two counts of
making false statements to acquire firearms, 18 U.S.C. § 922(a)(6),
and two counts of possession of firearms by a convicted felon, 18
U.S.C. §§ 922(g) and 924(a). Aduwo pled guilty to both false
statement counts and one count of possession of a firearm by a
convicted felon. Finding that possession of one of the firearms in
the subsequent attempted armed robbery could be imputed to Aduwo,
the court applied U.S.S.G. § 2K2.1(c), and thus calculated Aduwo's
offense level based upon the robbery guideline, U.S.S.G. § 2B3.1.
Aduwo argues that the district court's application of § 2K2.1(c),
and thus § 2B3.1, was in error because she did not possess a
firearm in connection with the attempted armed robbery.
II. DISCUSSION
Whether, under these facts, possession of a firearm can be
imputed to Aduwo for the purpose of § 2K2.1(c) is a question of law
which we review de novo. United States v. Huppert, 917 F.2d 507,
510 (11th Cir.1990).
United States Sentencing Guidelines § 2K2.1 addresses the
unlawful receipt, possession or transportation of firearms.
U.S.S.G. § 2K2.1 (Nov. 1990). Subsections (a) and (b) provide the
general rules for calculating an offense level for such crimes.
However, if the defendant used or possessed the firearm in
connection with the commission or attempted commission of another
offense, § 2K2.1(c) directs the sentencing judge to apply § 2X1.1
if the resulting offense level is greater than that determined
under § 2K2.1(a) and (b). Section 2X1.1 in turn directs the
sentencing court to apply the guideline for the offense that the
defendant committed while in possession of the firearm. § 2X1.1(a)
(Nov. 1990). Thus, a defendant who merely possesses a firearm
illegally will be sentenced under § 2K2.1(a) and (b), but a
defendant who then uses that weapon in another crime may be given
a longer sentence under the guideline applicable to the subsequent
crime instead. In this way the 2K2.1 sentencing scheme permits the
sentencing court to impose a sentence which reflects the magnitude
of the crime. As the Tenth Circuit has observed, "[I]t [is]
obvious that the culpability—and the resultant punishment—of a
person who passively possesses a gun is different than the person
who possesses that same gun but also uses is it [in another
crime]." United States v. Willis, 925 F.2d 359, 361 (10th
Cir.1991).
The district court determined that § 2K1.1 was applicable to
Aduwo's illegal firearm purchases. Because the court found that
Aduwo "possessed" one of the illegally purchased firearms in
connection with the January, 1992, attempted armed robbery, the
court applied § 2X1.1(a) which in turn referred the court to §
2B3.1, the robbery guideline. U.S.S.G. § 2B3.1 (Nov. 1990). Aduwo
was sentenced based upon the resulting offense level of 232 because
2
The district court calculated an offense level of 23 under
the robbery guideline. U.S.S.G. § 2B3.1 (Nov. 1990). Aduwo's
base offense level was 20. § 2B3.1(a). The base offense level
was then increased by 3 points because a dangerous weapon was
used in the attempted armed robbery, § 2B3.1(b)(2)(C), and by
another 2 points because the crime involved more than $50,000. §
2B3.1(b)(6)(C). The court then decreased the offense level by 2
for acceptance of responsibility. U.S.S.G. § 3E1.1(a) (Nov.
1990).
that offense level was greater than the offense level that would
have resulted under § 2K2.1(a) and (b).3
Aduwo argues that the district court should not have applied
the § 2K2.1(c) cross-reference provision because she did not
possess a firearm in connection with the attempted armed robbery.
Aduwo claims that the "rip-off" plan never included the use of
weapons, that she never had physical possession of a weapon during
the attempted robbery, and that she did not know that a firearm was
present during her participation in the crime. The government
contends that Brown's possession of the Glock during the crime may
be imputed to Aduwo as Brown's co-conspirator.
Whether possession of a firearm by a co-conspirator can be
imputed to a defendant for the purposes of § 2K2.1(c) is a question
of first impression in this Circuit. We have, however, concluded
that a sentencing court may enhance a defendant's sentence based
upon a co-conspirator's possession of a firearm in the similar
context of U.S.S.G. § 2D1.1(b). United States v. Otero, 890 F.2d
366, 367 (11th Cir.1989); see also United States v. Nino, 967 F.2d
1508, 1513-15 (11th Cir.1992), cert. denied, --- U.S. ----, 113
S.Ct. 1432, 122 L.Ed.2d 799 (1993). Under § 2D1.1(b)(1), a
defendant's narcotics trafficking sentence can be enhanced "[i]f a
dangerous weapon (including a firearm) was possessed [during
commission of the offense]." U.S.S.G. § 2D1.1(b)(1) (Nov. 1994).
A defendant who did not physically possess a weapon during a drug
3
The district court calculated an offense level of 10 under
§ 2K2.1(a) and (b). Aduwo's base offense level was 12 because
she had a prior felony conviction. § 2K2.1(a)(2). The court
then decreased Aduwo's offense level by 2 for acceptance of
responsibility. § 3E1.1(a) (Nov. 1990).
conspiracy may still merit a sentence enhancement for "possession"
of a dangerous weapon under § 2D1.1(b) if a co-conspirator
possessed a dangerous weapon. Otero, 890 F.2d at 367. This
follows from the basic rule that conspirators are liable for the
reasonably foreseeable acts of their co-conspirators in furtherance
of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 66
S.Ct. 1180, 90 L.Ed. 1489 (1946); see also U.S.S.G. §
1B1.3(a)(1)(B) (Nov. 1994) (Relevant conduct for the purpose of
determining specific offense characteristics includes "all
reasonably foreseeable acts and omissions of others in furtherance
of [a] jointly undertaken criminal activity."); United States v.
Martinez, 924 F.2d 209, 210 n. 1 (11th Cir.) (noting Otero's §
2D1.1(b) co-conspirator possession rule tracks Pinkerton and the
Guidelines, which "require[ ] that the firearm possession be
reasonably foreseen as a necessary or natural consequence of the
unlawful agreement"), cert. denied, 502 U.S. 870, 112 S.Ct. 203,
116 L.Ed.2d 163 (1991). We see no reason why thePinkerton rule of
conspirator liability should not apply equally in the context of §
2K2.1(c).
Applying the Pinkerton rule to our facts, Brown's possession
of the Glock during the attempted armed robbery may be imputed to
Aduwo. Brown and Aduwo were co-conspirator's in a conspiracy to
effect a "drug rip-off;" Aduwo, Brown, and their co-conspirator
agreed to commit a robbery and, in its attempt, committed overt
acts in furtherance of that crime. See United States v.
Wieschenberg, 604 F.2d 326, 331 (5th Cir.1979) (A conspiracy is an
agreement between two or more persons with an unlawful purpose, and
an overt act in furtherance of that purpose.). Therefore, Aduwo is
liable for all acts in furtherance of the "drug rip-off" which are
"reasonably foresee[able] as a necessary or natural consequence of
the unlawful agreement." Pinkerton, 328 U.S. at 648, 66 S.Ct. at
1184.
Although Aduwo claims that she had no idea that Brown would be
carrying the concealed Glock,4 Brown's possession of the weapon
during the attempted robbery was both foreseeable and in
furtherance of the conspiracy. The conspirators planned to "rip
off" people whom they believed were drug purchasers. The quantity
of drugs involved, five kilograms of cocaine, would indicate to the
conspirators that these purchasers were not merely occasional
users, but drug dealers as well. Thus, it was reasonably
foreseeable that one of the conspirators might carry a weapon as
protection against the very real possibility that the purchasers
would discover their deception and retaliate violently. In fact,
Aduwo pled guilty to attempted armed robbery in state court,
thereby acknowledging that the conspirators planned to use some
weapon to effect the "rip off." Moreover, Aduwo had purchased
firearms for Brown, including the particular Glock which he
carried, and thus was well aware that Brown had access to such
weapons. Therefore, because Brown's possession of a concealed
4
Whether Aduwo had actual knowledge of Brown's possession of
the Glock is irrelevant to our inquiry. Aduwo's alleged lack of
knowledge notwithstanding, she is liable for Brown's possession
of the Glock if such possession was foreseeable and in
furtherance of the conspiracy. See United States v. Martinez,
924 F.2d 209, 210 (11th Cir.1991) (§ 2D1.1 enhancement sustained
despite defendant's alleged lack of knowledge of co-conspirator's
firearm possession because possession reasonably foreseeable).
firearm during the attempted robbery was foreseeable and in
furtherance of the "drug rip-off," Brown's possession of the Glock
may be imputed to Aduwo.
III. CONCLUSION5
The district court did not err in determining that Aduwo
possessed one of the 9mm firearms in connection with the commission
of the subsequent attempted armed robbery for the purpose of the §
2K2.1(c) cross-reference provision. Therefore, Aduwo's sentence is
AFFIRMED.
5
We note that our conclusion is consistent with the result
in United States v. Gonzales, 996 F.2d 88 (5th Cir.1993).