UNITED STATES of America, Plaintiff-Appellee, v. Scott TISDALE (90-3302), Jerry L. Irby (90-3306), and James E. Fullilove (90-3335), Defendants-Appellants.
Nos. 90-3302, 90-3306 and 90-3335
United States Court of Appeals, Sixth Circuit.
Argued Feb. 5, 1991. Decided Jan. 2, 1992.
952 F.2d 934
Lawrence J. Greger (argued and briefed), Dayton, Ohio, for Scott Tisdale.
Beth A. Kolotkin (briefed and argued), Dayton, Ohio, for Jerry L. Irby.
Thomas A. Schaffer (briefed and argued), Sutton, Overholser & Schaffer, Dayton, Ohio, for James E. Fullilove.
Before JONES and NELSON, Circuit Judges, and JOINER, Senior District
DAVID A. NELSON, Circuit Judge.
This is an appeal by three defendants from sentences imposed on pleas of guilty to various federal narcotics charges. Each of the defendants contends, among other things, that the district court erred in enhancing his base offense level pursuant to
With respect to the firearm enhancement question, we find that possession of the weapon was properly attributed to two of the defendants but not to the third. With respect to the Sixth Amendment question, we conclude that the Amendment‘s guarantee of assistance does not extend to presentence interviews. Although we would be prepared, in the exercise of our supervisory powers, to require probation officers to honor requests for the presence of counsel during such interviews, the record in the case at bar does not indicate that any such request was ever made here.
I
In December of 1988 the assistant manager of an apartment building in Dayton, Ohio, told law enforcement officers about activities in one of the apartments that appeared to be drug-related. Members of a narcotics task force began watching the apartment and found that four individuals were entering and leaving it frequently and at odd hours. These people were later identified as the defendants—Scott Tisdale, Jerry Irby, and James Fullilove—and Clemoth Toombs, who is not a party to this appeal.
On January 8, 1989, the officers obtained search warrants for the apartment and an automobile parked outside. When they entered the apartment, the officers discovered, among other things, a plastic baggie containing heroin; a loaded .25 caliber pistol in open luggage; triple beam scales; several boxes of plastic baggies; manitol, which is a cutting agent for heroin and cocaine; and over five thousand dollars in cash. The search of the car revealed a large quantity of a white powder that proved to be cocaine.
A six-count indictment was returned against the defendants. Pursuant to
Probation officers prepared presentence reports for the defendants. The reports concluded that each defendant had a base offense level of 26; that each should receive a two-level increase for possession of a firearm during the commission of the offense; and that none of the defendants was entitled to a downward adjustment for acceptance of responsibility or for his role in the offense. Based on a total offense level of 28 and a criminal history category of I, the indicated sentencing range was 78-97 months for each defendant.
After a series of hearings, the district court sentenced the defendants as follows.
Tisdale: The court accepted the probation officer‘s report and sentenced Mr. Tisdale to 78 months—the bottom of the range—with credit for time already served. At a subsequent hearing, however, the court vacated the sentence in order to give an additional one-point credit for time served. This adjustment reduced Mr. Tisdale‘s offense level to 27 and his sentencing range to 70-87 months. The court sentenced him to 70 months, the bottom of the new range.
Fullilove: The court accepted most of the probation officer‘s recommendations, but agreed with Mr. Fullilove that he should receive a two-point reduction for being a “minor participant” as that term is used in
Irby: The court accepted the probation officer‘s recommendations in full. The defendant‘s adjusted offense level was set at 28, minus one point for time served,1 for a total offense level of 27 and a guideline range of 70-87 months. The court imposed a sentence of 75 months, stating:
“the Court has not sentenced at the low end of the guidelines because this Court concludes that, while there may not be evidence that Mr. Irby was either a major or minor participant in this offense, it is clear that his actions facilitated these acts.”
This appeal followed.
II
We turn first to the defendants’ contention that the Government failed to make the required showing as far as the weapon was concerned, and the district court therefore erred in enhancing the base offense levels pursuant to
* The Honorable Charles W. Joiner, Senior United States District Judge for the Eastern District of Michigan, sitting by designation.
Before it was amended on November 1, 1989,
Under the law in this circuit the burden rests upon the Government to prove “(1) that the defendant ‘possessed’ the weapon, and (2) that such possession was during the commission of the offense.” United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir.1991). Possession may be actual or constructive. Id. Constructive possession means “the ‘ownership, dominion, or control’ over the item itself, ‘or dominion over the premises’ where the item is located.” United States v. Snyder, 913 F.2d 300, 304 (6th Cir.1990) (citations omitted), cert. denied, U.S. —, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991). Possession “during the commission of the offense” may be found if the firearm “could have facilitated [the] illegal [drug] transactions,” id.; the guidelines do not require that the “firearms ... be readily accessible to be ‘connected’ with the drug offense.” United States v. McGhee, 882 F.2d 1095, 1099 (6th Cir.1989).
In the case at bar the prosecution satisfied both requirements with respect to Mr. Tisdale. He admitted to police investigators that he had dominion and control over the pistol found in the apartment that served as the headquarters of the defendants’ drug operations. Mr. Tisdale therefore was in constructive possession of a firearm whose connection to the offense was not clearly improbable.
The Government also satisfied both requirements with respect to Mr. Fullilove. Under the theory of liability established in Pinkerton v. United States, 328 U.S. 640, 648, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946), co-conspirators are held accountable for all “ramifications of the plan which could [] be reasonably foreseen.” This concept unquestionably applies to enhancement of base offense levels under
The Government has not satisfied the test with respect to Mr. Irby. Unlike his co-defendants, Irby did not plead guilty to conspiracy. Although this distinction would be irrelevant under the current version of the Sentencing Guidelines,3 the version in effect when the crimes at issue here were committed makes the distinction an important one:
“Unless otherwise specified, ... specific offense characteristics [such as the firearm enhancement in
§ 2D1.1(b) ] shall be determined on the basis of the following:(1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable
...
(2) solely with respect to offenses of a character for which
§ 3D1.2(d) would require grouping of multiple counts [e.g., drug offenses], all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction;...
Application Notes:
1. Conduct ‘for which the defendant is otherwise accountable,’ as used in subsection (a)(1), includes conduct that the defendant counseled, commanded, induced, procured, or willfully caused.... If the conviction is for conspiracy, it includes conduct in furtherance of the conspiracy that was known to or was reasonably foreseeable by the defendant....
2. ‘Such acts and omissions,’ as used in subsection (a)(2), refers to acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable.”
B
Although the Government proved that the firearm was “possessed” by Messrs. Tisdale and Fullilove and was “connected to the offense,” Tisdale and Fullilove maintain that the district court still erred in applying the two-level enhancement because the prosecution did not prove the existence of a third element: scienter. To support this argument, they rely upon
“(a) Unless otherwise specified, ... specific offense characteristics ... shall be determined on the basis of the following:
...
(4) the defendant‘s state of mind, intent, motive and purpose in committing the offense; ....” (Emphasis supplied.)
The defendants also rely upon United States v. Burke, 888 F.2d 862, 867 (D.C.Cir.1989), a nonconspiracy case that construed this version of the guideline to mean that the firearm enhancement in
We have no quarrel with the holding in Burke, but Burke does not fit the facts of the case before us. Although it was defendant Toombs who filled out the paperwork attendant on the purchase of the gun in this case, both Toombs and Tisdale said that they were the purchasers. The gun was found in a bedroom used by Tisdale, and Tisdale admitted that the weapon was under his dominion and control. These facts are clearly sufficient to show scienter on Tisdale‘s part.
As to Fullilove, we have already seen that the applicability of the firearm enhancement provision in
III
We turn next to Mr. Irby‘s claim that he was deprived of his Sixth Amendment right to be represented by counsel during his presentence interviews. This claim raises a question of first impression in this circuit.4
The Supreme Court‘s decision in Kirby v. Illinois, 406 U.S. 682, 690, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972), teaches that the right to counsel only attaches during a “critical stage of the prosecution.” Because the probation officer does not act on behalf of the prosecution, those circuits to consider the issue have concluded—even under the new regime created by the Sentencing Guidelines—that a presentence interview in a non-capital case is not a “critical stage” within the meaning of Kirby. See United States v. Woods, 907 F.2d 1540, 1543 (5th Cir.1990), cert. denied, U.S. —, 111 S.Ct. 792, 112 L.Ed.2d 854 (1991); United States v. Jackson, 886 F.2d 838, 844-845 (7th Cir.1989); see also United States v. Johnson, 935 F.2d 47 (4th Cir.), cert. denied, U.S. —, 112 S.Ct. 609, 116 L.Ed.2d 632 (1991) (dicta). No circuit has adopted the contrary position.5
The Ninth Circuit, while not reaching the constitutional question, has exercised its supervisory powers to “direct that probation officers be required to permit defendants’ counsel to accompany their clients at the presentence interview.” United States v. Herrera-Figueroa, 918 F.2d 1430, 1437 (9th Cir.1990) (as amended on February 5, 1991). We agree that a rule “requiring probation officers to honor a defendant‘s request that his attorney be permitted to accompany him to the presentence interview will do much to ensure fairness at a minimal cost to the system.” Id. at 1434. If a defendant requests the presence of counsel—or if an attorney indicates that his client is not to be interviewed without the attorney being there—the probation officer should honor the request.
In the case at bar, probation officer Larry England met with Mr. Irby on three occasions, two of which occurred without the presence of counsel. Nothing in the record indicates that Mr. Irby ever requested the presence of his attorney, however, or that the attorney ever notified Mr. England that no interviews were to be conducted in his absence. Accordingly, we decline to vacate Mr. Irby‘s sentence on this ground.
IV
The remaining issues raised by the defendants need not detain us long.
All three defendants claim that the district court erred in failing to award them a two-point reduction for acceptance of responsibility pursuant to
Messrs. Irby and Fullilove contend that putting the burden on defendants to prove mitigating factors violates the Due Process Clause, but this claim has been foreclosed by our decision in United States v. Rodriguez, 896 F.2d 1031, 1032-1033 (6th Cir. 1990).
Mr. Fullilove asserts that requiring a defendant to demonstrate his minor role in the offense violates the Sixth Amendment right to compulsory process because the only witnesses are likely to be his co-defendants. The argument is not persuasive. It is well settled that the Sixth Amendment‘s guarantee of compulsory process does not overcome a witness’ Fifth Amendment privilege against self-incrimination. See, for example, Roussell v. Jeane, 842 F.2d 1512, 1516 (5th Cir.1988).
Mr. Irby maintains, finally, that the Sentencing Guidelines run afoul of the Due Process Clause because they permit a probation officer to prepare a presentence
Mr. Irby‘s sentence is VACATED and his case is REMANDED for resentencing without the firearm enhancement. The sentences are AFFIRMED in all other respects.
NATHANIEL R. JONES, Circuit Judge, concurring in part and dissenting in part.
Although I concur in much of the majority‘s well-reasoned opinion, I write separately to voice my concerns over application of the firearm enhancement under
My review of the record reveals no factual basis for imputing the firearm possession to Fullilove. Tisdale‘s .25 caliber pistol was found inside Tisdale‘s luggage, hidden in a bedroom closet of the apartment. At Fullilove‘s sentencing hearing, Officer Larry Clendinen testified that he was unaware of any evidence suggesting that Fullilove knew that Tisdale‘s pistol was on the premises. J.A. at 153. Indeed, in its brief to this Court, the United States conceded “that Fullilove was never seen with a gun on his person or in his possession and ... [the] officers had no evidence to show that Fullilove knew the gun was present in the apartment....” Brief for Appellee at 8.
Nevertheless, the majority affirms Fullilove‘s sentence, apparently in deference to the district court‘s finding that Tisdale‘s possession of the handgun was reasonably foreseeable. This “finding,” however, is not due the deference the majority affords it. Instead of examining the factual circumstances surrounding Fullilove‘s participation in the conspiracy, the district court simply assumed, apparently as a matter of law, that “it is reasonably foreseeable that persons who are involved in a drug trafficking conspiracy will carry weapons in order to protect themselves and that activity.” J.A. at 254.
I am deeply troubled by the implications of grafting onto the guidelines a rule establishing what amounts to an irrebuttable presumption that drug traffickers reasonably foresee that their coconspirators will carry firearms. Under this rule, a defendant in Fullilove‘s position is legally presumed to have foreseen that his coconspirator would carry a weapon, no matter how preposterous or absurd the claim might prove under the unique facts of the case. The issue of reasonable foreseeability should remain, in my view, sensitive to the factual context surrounding the particular conspiracy at hand. In the related context of aider and abetter liability under
[E]ven if guns were shown to be a part of an overwhelming majority of drug operations, not all drug traffickers—or drug trafficking contexts—are alike. We suspect, for example, that many a college dealer gets along without firearms. Without evidence of the prevalence of guns in a particular context, no jury can reasonably infer that someone operating in that context knows that his associates will carry a gun.
United States v. Powell, 929 F.2d 724, 729 (D.C.Cir.1991).
Application of