*1 May report which 1973 medical Odom's his total disabili- claims establishes Belcher America, UNITED STATES rejected AU Dr. Odom’s assess- ty. The Plaintiff-Appellee, be- Belcher’s medical condition
ment of v. support fails to the documentation cause prop- AU physician’s conclusions. BRONAUGH, E. James found, reasoning examining erly after Defendant-Appellant. light of the stud- opinion medical No. 89-3510. objective indications ies and the conducted is physician’s conclusion Appeals, Court United States based, report did not ex- that Dr. Odom’s Sixth Circuit. judgment re- medical emplify reasoned 727.203(a)(4). under 20 C.F.R. quired 14, Argued Nov. OWCP, Director, 710 F.2d v. Rowe See Decided Jan. (6th Cir.1983).
V. objective tests fail to estab Where disabled, he petitioner totally a is
lish that totally disabled be found nevertheless if pneumoconiosis other evidence
due to pulmo respiratory a
establishes chronic which, severity, due its
nary impairment doing previ from
prevents being from mine work but also
ous coal
employed comparable gainful work. 410.426(d). reviewing After C.F.R. § case, is that there
the record we find support the AU’s
substantial evidence to that neither Belcher’s
conclusion
nor establishes Dr. Odom's respira totally disabled due to
Belcher
tory that he impairment. Belcher testified engaged comparable gainful em as mechanic in mines and
ployment person. part-time air conditioner service
In the lack of reasoned medical addition to present
judgment in Dr. Odom’s assess condition, medical we
ment of Belcher's objective test results and
conclude reports by Dr. Suther
medical submitted provide
land Dr. Fritzhand substantial support denial of AU’s
benefits. that the Board
Accordingly, we conclude of the AU
correctly affirmed the decision lung to Belcher.
denying black benefits of the Board are decision order
AFFIRMED. Bauer, (argued), Atty. Asst.
Thomas U.S. Akron, Ohio, plaintiff-appellee. *2 Friedman, (argued), Bronaugh Friedman Mr. admittedly Gordon S. violated the fed- Berezin, Cleveland, Ohio, for de- eral firearms laws. Gilbert & fendant-appellant. illegal purchase (which involved an- well) handgun other as made on Octo- NELSON, WELLFORD and Before 12, 1988, Emporium” ber at “Sam’s on East EDWARDS, Judges, and Circuit Senior Akron, Exchange in Street Ohio. Seven Judge. Circuit days purchase weapon, after the of the Mr. Bronaugh was arrested at Detroit Metro- politan Airport grams in of 448 NELSON, Judge. DAVID A. Circuit crack Apparently cocaine. he was not 924(a), Under 18 U.S.C. the crime of § armed at the time of his arrest. making procure a false statement to a fire- given In a statement to federal authori- punishable by imprisonment up arm is 21, 1988, ties on November less than six years. sentencing guide- to five Under the purchase weeks after gun, of the Mr. lines, however, if no related offense is in- Gibson said that on October 12 he and a volved, punishable normally the crime is girlfriend, Hamilton, sometime Pam went range in twenty- sentence of four to to Sam’s store with Defendant Bro- months, depending seven on the defen- naugh. Bronaugh and Gibson both entered history. dant’s criminal store, while Pam Hamilton remained Bronaugh pleaded Defendant James E. a car outside. As pre- summarized in the guilty single charge procuring to a report, Mr. Gibson’s statement through firearm a false statement. Mr. continued as follows: Bronaugh’s history criminal was such that “Gibson related that the defendant range guide the sentence indicated picked guns produced out two and then ordinarily imprison lines would have been $1,100 he, Gibson, in cash while filled out ment for six to months. twelve The sen * * * the firearm transaction forms. imposed by tence the district court was five agents Gibson told the defendant years. The reason for this was that the weapons provided chose both found, by of the money weapons. According both evidence, Bronaugh had used the fire Gibson, they all went to Pam’s house at drug arm trafficking—and Avenue, 1045 Biruta guns, * 2K2.1(c)(l) guidelines of the tells the § ... the defendant told Gibson that he did court that the defendant used the fire “[i]f $150; money pay left to arm in committing attempting another pay he would him later. Gibson told offense,” “apply guide the court is to agents that he had not seen the defen- respect line in to such other offense....” guns dant ... or the day.” since that range respect traf The clerk who handled the October 12 ficking years. exceeds five transaction at subsequently Sam’s store appeal, Bronaugh On contends confirmed Bronaugh that Defendant there was insufficient evidence to Gibson, the store with and that show that he used the firearm in signed Gibson had purchaser as the of the trafficking. disagree, We and we shall af- weapons. Ms. Hamilton also confirmed firm the sentence. Gibson’s account purchase, as the Bronaugh, Michigan,
Mr. a resident of presentence report notes in describing an admittedly arranged to have an Ohio resi- agents interview that federal had with Ms. purchase dent named Robert Gibson a .45 Hamilton on November 1988. Ms. Grizzly pistol L.A.R. for him in Ohio agents with- Hamilton also told that informing out the firearms dealer that Bro- had used her residence at 1045 Biruta Ave- naugh buyer. doing, was the real In place cocaine, so nue as a to sell and that she * 1, 1989, 2K2.1(c)(1) 2K2.1(c)(2). language) Effective November as § (with change inconsequential renumbered an always laid around.” hand four drug deal- a fellow Bronaugh and seen guns she had what kind asked When including Uzi and weapons, with four er carry, Ms. Hamilton of 1988. June rifle, early as an AKS maybe like Ms. Ham- answered “[h]e to believe nois reason There *3 Uzi_” and the a .45 residence in continuous ilton was through at from June Biruta Avenue himself, tes- Gibson, user a narcotics Mr. 12, 1988. least October three seen about he had that tified including .38 semi-automatic house, interviewed Bronaugh the was Defendant cross- handguns. On 1989, shortly of 6, couple rifle and a April agent on a federal that the illegal examination, testified to the Gibson guilty Mr. pleaded Bronaugh after pistol. actually saw Mr. Grizzly only weapon he .45 L.A.R. of the purchase according interview, to rifle. the with was of the In the course report, presentence the interpret Mr. court did district The that he agent that advised “defendant repudiation of testimony as Gibson’s hidden Bronaugh] had [i.e., agents the previously told Gibson had what and would Akron pistol in .45-caliber the Bro- Mr. handguns for buying two about he was only if the surrender Bro- with going 12 and naugh on October agent to the accompany to allowed the latter’s to Hamilton naugh Ms. disclose he would not place. Otherwise part of (In guns. another with the house weapon.” of the location cross-examination, coun- after defense of statement reminded Gibson sel had recovered. gun was never The November, given the authorities he had held before hearing sentencing A then said he had confirmed Gibson The May on court the district pur- Bronaugh after he never saw presentence of the the benefit had court handguns October of the chase sup- course, report and the report, of show every opportunity Counsel Ms. from by live plemented happened on of what report the earlier wit- Gibson, two other Hamilton, Mr. inaccurate, did counsel but 12 was nesses. and made further report to the not allude presentence together, Taken it.) attempt to discredit no direct room no testimony leave live and the obviously satisfied court was Bronaugh and doubt that Defendant Novem- accuracy of Gibson’s Mr. with extensive operating were confederates men and the two about 21 statement ber Hamil- out Ms. cocaine business retail crack house going all Hamilton Ms. Biruta Avenue. ton’s home illegally Avenue Biruta at 1045 24 hours for business open place was conclusion At purchased single hour of a course day, following made testimony, the custom- 15 to 20 many as might asbe there findings: Hamil- customer, a friend Ms. ers. One finds that Court “The Thurmon, testified named Debra ton’s by the established you could enough so “[tjraffic there did use $6,000 [a five make about [thousand] in the as described obtained the firearm Bro- Ms. Hamilton day].” with operation ongoing in his indictment De- drugs from bringing the naugh was powder cocaine house where others she herself troit, one occasion and on re- commonly ... crystals and cocaine carry Bronaugh’s associates helped one being were crack as cocaine ferred from Detroit. drugs to Toledo sold....” Hamilton, and Mr. Thurmon, Ms. Ms. pur- illegally inference having Defen- all testified Gibson described handgun .45 caliber chased crack house at the dant crack go into in fact did Uzi, indictment including the big guns, firearms. Two Bronaugh’s important, according house bag, in a duffel kept there were it dur- about asked specifically counsel three Hamilton, it like “and was to Ms. ing argument appeal. of this Without stated in clearly presentence report and conceding presence that the handgun challenged defendant never it. The the crack meant that house presentence report had disclosed to drug transaction, “used” in any counsel the defendant and his counsel at least ten acknowledged quite properly, in our days before the date set for sentencing, — see view—that it be fair to infer that the 3553(d), 18 U.S.C. and no one denies that gun went the house. into have to “We proper disclosure was made in this in- infer,” said, “that it counsel went into the stance. The defendant and his counsel house.” were an opportunity afforded to comment report, required on the Rule Fed. quote be instructive for us to *4 R.Crim.P., and point at no colloquy: they allege did that the was factually inaccurate in only “COUNSEL: we respect. Gibson, Mr. the source of the by have is that they dropped Gibson information about the having defendant’s at 1045— the folks off gone to the crack house gun, was gun? With the JUDGE: actually made available for cross-examina- gun. Yes, COUNSEL: With sir. I Bronaugh’s tion—and Mr. able counsel mean, dropped— they question chose not to him about the truth- gun JUDGE: went So into the of his fulness statement Bronaugh house? gone to the house gun. The fact Well, COUNSEL: we don’t have actual unimpeached. stands they evidence that went into the house. here, pick I don’t mean to I but mean It is true that that judge trial did not they dropped— give parties advance notice that he JUDGE: Where else would it would gone? interpret the facts set forth in the presentence report as sorry, your meaning I’m COUNSEL: that Bro- Honor. naugh had taken the .45 Grizzly L.A.R. JUDGE: else would gone? Where it have with him into the crack every- house when COUNSEL: We have to infer that it one went there after illegal purchase. went into the house. That’s only But as this court said in United States v. thing inference, we have there is Ford, (6th 889 Cir.1989), F.2d 1572 don’t believe that the dur- “we do not believe requires a ing [Rule 32] the course of hearing proved judge in all give parties cases to ad- by a preponderance of the evidence vance notice of and a chance comment it used in the was drug transac- judge’s on the interpretation of the tion.” facts.” We do not believe that there any such courts, they Trial when act as finders of requirement here, judge having made fact, draw inferences all the time. In this only interpretation the facts instance, believe, we it perfectly rea- would be reasonable. sonable for the trial court to draw the same inference that Bronaugh’s Defendant own In computing offense level lawyer did: the .45 L.A.R. Grizzly pistol for the crime to which Mr. Bronaugh plead- Bronaugh purchased Mr. illegally guilty, ed probation department pro- went into the crack house at 1045 Biruta ceeded on the understanding that the fire- Avenue Bronaugh with Mr. when Mr. Gib- arm described in the indictment “was to be dropped son and Ms. Hamilton off protect used drug trafficking activities.” there on There was no The inference that the gun was so used place go. else for the accepted court, the district as we burden Taking was not seen. govern- aggravating certain ment to show at the account, factors into sentencing hearing the court determined that the went offense level for trafficking in 448 crack house at 1045 Biruta grams Avenue with of cocaine indicated a weapon that was subject the range of 262 to 327 months. Applying indictment, because that fact guideline, instructed weapons— finding that these grounds the stat- going above 2K2.1(c)(l), but § purchased Grizzly, which including the weapons offense for the utory maximum Bronaugh was ar- days before convicted, only seven defendant had which of co- grams rested of 60 months. imposed a sentence the court drug business. used months, caine—were than shorter A sentence an unwarrant- said, represent court that a de- thought anomalous guide- from departure ed downward increase a five-fold can receive fendant lines. because his sentence of an guilty he is indicates the evidence appeal that argues increases are such uncharged crime. But in find- error committed clear guidelines, possible, under Grizzly pistol was the .45 caliber ing that uncharged, but crime the other trafficking of- where committing a come not even crime does the other where analogy to Inviting to draw us fense. courts. of the federal 924(c), jurisdiction within 18 U.S.C. under § decided cases notes, 2K2.1 commentary to liability As the criminal additional creates are used often who, in relation firearm statutes “during and “The for one *5 to trafficking crime federal court drug to enable as a device crime of violence firearm,” that argues he over offenses jurisdiction carries a exercise uses or ... only under tighter prosecuted a nexus be require could cases otherwise that those fel- of- convicted example, the related a For firearm law. state between a possessing for prosecuted here. present than is on fense a firearm to rob if he used firearm F.2d 937 878 Henry, v. In States United re- prosecutions Such gasoline station. however, adopted Cir.1989), we (6th of the because high sentences sult theory, “drug fortress” underlying conduct. true nature reasonably ap- if it holds “which 2K2.1(c) deals at reference The cross on the found firearms pears that cases.” with such aby defen- or owned controlled premises philosophy reflected piggy-back or constructive The in his actual dant and philosophy comment, the similar protect to like are to be possession drug Influenced a facilitate in the Racketeer reflected drugs or otherwise Act, U.S.C. are used 18 transaction, Organizations firearms such Corrupt then The drug 1961-1968, traf- one. to’ a is a in relation controversial ‘during and §§ however, congres- turns controversy, ficking crime.” subject to are not judgments sional v. United States at 944. See also 878 F.2d judiciary. by the amendment 945, (6th Acosta-Cazares, 951 878 F.2d — U.S. -, denied, S.Ct. Cir.), note cert. to important also (1989), we held where 255, imposition 107 L.Ed.2d cannot result guidelines “ be con should by and ‘carries’ stat- range ‘uses’ a set outside of a sentence of situa gamut broadly to cover the de- to strued sentence which ute. Whatever ready drug traffickers sub- where tions Bronaugh would fendant they secure weapons with which traf- of access convicted he been jected actually their transactions.” received enforce he sentence ficking, Congress the maximum exceed did not distinguish Bronaugh seeks to weap- for the appropriate thought would be leading Henry Acosta- line of cases he was convicted. of which ons offense case bar in the noting that Cazares sentencing, advent of is Before This distinction ever found. gun no no doubt could have been there guilty, pleading unavailing. By impose a authority of the district gun existed. admitted that offense. weapons five-year sentence house, and there in the clearly un- five-year sentence imposition it The showing a was wealth ano- certainly no more guidelines is der the Bronaugh had weapon only not the same imposition of the malous than ample district court there. The pre-guide- present (she sentence would have been when she was there was in a line era. drug rehabilitation center in hospital a during much of October and November AFFIRMED.
The sentence is 1988),she had people, including seen defen- dant, in question the house in WELLFORD, Judge, Circuit (“I guess .45s, Uzi.”) it was like dissenting: United States Attorney, hearing, Bronaugh, twenty years now identify conceded “she did not age, pleaded guilty single charge to a caliber, as a .45 however.” procuring firearm making causing a false statement and Gibson, the “straw man” involved purchase of “straw man” the .45 L.A.R. weapon purchase, vague and ambiva- Grizzly pistol on lent about times and dates. He testified as gave probation pre- officer information in a hearing, follows at the after admitting that within a week after government agent he told a he had “never episode, the indictment defendant was ar- going after” purchase airport rested at the Detroit on October 12: At sentencing hearing, crack cocaine.1 A. It was after that. I didn’t see—me par- there was evidence that defendant had and Pam up broke I and moved out of ticipated with others extensive traffick- town I and haven’t seen Pam nor J [de- ing in cocaine at a crack house location in after that. fendant] Akron, Ohio, during early the summer and Q. That was in November of ’88? fall of and that weapons there were guess. A. *6 seen in that house. Defendant had two Q. your testimony So you is that saw prior juvenile adjudications. The available June, him every day after sometime in records did not indicate whether Bronaugh October; through June is that correct? represented attorney juve- was nile A. proceedings, placed but he was in Yes. fos- ter care and ordered to make restitution in Q. you actually Did see cocaine on his respect charges. to those person, in his hands?
The govern- district court found that the A. Yes. ment established that “the defendant did Q. you Did actually see him bringing use the firearm obtained as described in cocaine into the house? ongoing indictment in his operation A. Yes. with others of a house pow- where cocaine Q. you And you also testified that saw der crystals and cocaine were found.” him weapons? with (Emphasis added). It determined that “the A. Yes. provisions 2K2.1(c)(l) apply.”2 do Q. Was this on one occasion or— The testimony of the witnesses at the times, AA. few the time he came and sentencing hearing related to activity, the time he left. in involved, which defendant was that like- Q. you you But only testified saw three ly prior occurred to the indictment offense guns in the house? question in in the summer of 1988. Pam period Hamilton testified that in the of time Right. A. agents
1. The guideline (now also indicated that “ATF are 2. This renumbered as 2K2.- 1(c)(2)) opinion par- that defendant states: [and another ty] (c) purchase’ were involved in the 'straw Cross Reference (1) apparently other firearms.” There was If the no in- defendant used the firearm offense, committing attempting respect guns allegedly ap- dictment with another to other ply respect illegally to such other obtained. There was no evidence that offense, (Attempt Conspiracy) or § 2X1.1 if Bronaugh possessed (or Grizzly the .45 L.A.R. resulting higher offense level is than that weapon) airport other at the Detroit when determined above. arrested October added). (Emphasis at the offense indictment after week one of him with see actually you Q. Did course, offense, of That airport. Detroit guns? indictment no direct relevance rifle. A. offense. thing you saw only was Q. And that with? been, certainly based Defendant has Right. A. and the record testimony witnesses weapon? only crimi- Q. The in considerable information, involved indicted, how- has been Right. activity. He A. nal weapon period obtaining entire one during ever, Q. And that’s date, district court through October? but on a certain of June this it found how indicate failed to Right. A. drug oper- ongoing in an firearm however, indi- report, presentence demon- no connection There was ation. No- agents in ATF told that Gibson cated the De- weapon between strated hear- prior (six months vember offense, still airport state troit he, Pam testimony) that on ing sentencing in this at the time pending party defendant, and another Hamilton, case. Empori- “K,” gone to Sam’s known paid chosen pistols, buy two um to this done by what was I am troubled gone then they had and that Bronaugh, for crimi- was sentenced case. It conclud- house to Pam’s cocaine) for (distribution of activity nal he had agents told “Gibson ed: No reason indicted. was never which he ‘K,’ guns since defendant, or the Bronaugh could why given as to point at another testified day.” He indicted, or be indicted feasibly have been had seen that he years five sentenced, term of beyond a drug house. Akron rifle at pro- activity.3 The for such seized; no never question clearly whose duced witnesses Bronough definitively that one conduct, but unlawful established it, drug house was seen conduct tie this a failure there location weapon ever seized L.A.R, *7 is Grizzly pistol as .45 particular the No 1989. in March gun AK-47 one particularly guidelines, under required ever gun that one ever least, the matter very 2K2.1(c)(l). theAt § house, I and drug at the displayed used to court district to the remanded should be that effect. to inference reasonable find no indict- tied evidence what just indicate that the burden to clear me It seems activity, or drug illegal gun ment at sen- show the to government upon activity. I dis- drug illegal attempted weapon, particular hearing tencing establishes the evidence agree indictment, subject of the was the which inference by was even weapon indictment “committing or in used had to house, although appel- drug for another offense” attempting might.4 it to infer that seemed counsel late also this case. It apply in to 2K2.1 § to to me seems here has occurred What to failed government clear that seems wagging the tail classic case abe although it showing, requisite make permitted dog. The Bronaugh used have shown indictment, informa- without prosecution, to co- respect in weapons other possessed trial a without charge, and or formal tion Sep- through June trafficking from caine to establish evidence at also demon- government tember doubt, under reasonable beyond a guilt a cocaine Bronaugh possessed strated have actual don’t "we He stated conspiracy and might for be indicted also 3. He is burden they into house.” went acquiring other with others involvement 922(a)(6) prove this essential government to §§ of 18 U.S.C. weapons in violation why 924(a). mystery is a It fact. and in- one illegal acquisition of indicted 12, 1988. pistols on two stead guise relatively offense, minor gun The commentary 2K2.1, quoted in escalate sentence based opinion, majority unconnected simply applica- charges involving ble to drugs. this situation. The latter using activi- refers to this view, section as ty, my a device by jurisdiction exercise shown even a over offenses that “otherwise could be evidence to be direct- prosecuted only under state law.” The ly on- specific related to the single weapon going drug distribution offenses are clearly identified in the indictment.5 In type this subject to prosecution. federal airport situation, the courts require should cocaine already seizure is being prosecuted bring forward the serious in separate state proceeding. At issue in (in case, charge this cocaine this case is the “true nature” of the single operation) proof house jury, before gun offense and whether it has been shown especially where defendant was known to to have clearly directly been involved involved of other in drug activity. I think not. distribution location. I cannot would, I therefore, reverse for resentenc- countenance here a “back approach door” ing for the reasons indicated. The govern- demonstrated the circumstances of this ment proceed, could then it if chooses to do case—to charge defendant with single so, to charge defendant with the serious gun (with offense a base offense level of drug trafficking in separate proceedings. only 9, involving a less than This would surely be in the interests of year) one and then seek to sentence defen- justice and fairness under the circumstanc- dant with relation to other uncharged of- es. proof fenses without aof direct relation- ship between relatively minor of-
fense, particular pistol, serious
drug charges.6 I am further troubled
the failure of defendant’s pursue counsel to problem the sentencing hearing and appellate argument light of the dis- FIRST FEDERAL SAVINGS AND questions trict court’s expressions LOAN ASSOCIATION OF doubt, particularly since the TOLEDO, Plaintiff-Appellee, weapon was never seized or identified at v. the crack or at house airport. Detroit find no real possible basis for his conces- FIDELITY AND DEPOSIT COMPANY sion at oral argument that there MARYLAND, was a OF fair Defendant-Appellant. inference that defendant took the No. 88-3503. *8 house. There no is evidence United States Appeals, Court of anyone displayed saw it or used there. Sixth Circuit. I recognize guidelines that under the Argued July 27, 1989. take into account related Decided Jan. offenses, or an illegal acquisition tie weapon or weapons to a directly related offense,
criminal or attempted offense, in
which the weapon was utilized. At least a of the evidence stan- that the witnesses that were there at the house required dard is the burden is part were a definite of this government prove necessary operation. 2K2.1(c)(l) relationship. Everyone I believe Miss Hamilton said that pistols had several prosecutor 6. The sentencing: stated at AK-47, which I believe she as described he kept believe the burden is on the with him. identify She did not show that was used to facilitate the use of caliber, a .45 identify however. She did it that cocaine, yes. And the evidence that we pistol he did have a long gun. did presented simply