United States v. SiebeUnited States v. Siebe
Appellant Siebe pleaded guilty to possession of cocaine with the intent to distribute and money laundering. He was sentenced to a term of 480 months imprisonment for the cocaine possession and to a concurrent 240 month term for money laundering, followed by a five-year term of supervised releаse. Two issues are raised on appeal. These issues concern the assignment of two points for possession of a firearm during the commission of a drug trafficking offense and the court‘s refusal to assign a two point reduction for acceptance of responsibility.
Enhancement for Firearm Possession
Appellant first asserts that the district court erred in enhancing his sentence for possession of
To meet this burden, generаlly the Government must prove that the weapon was found in the same location as the drug or the weapon was a part of the drug transaction. See United States v. Hooten, 942 F.2d 878, 881 (5th Cir. 1991) (remanded for determination of whether such evidence linking weapon, drugs and defendant existed); United States v. McKeever, 906 F.2d 129, 134 (5th Cir. 1990) (possession found because house where gun was found contained materiаls for processing amphetamine and thus became part of the situs of the offense); United States v. Vasquez, 874 F.2d 250, 251 (5th Cir. 1989) (no possession shоwn where evidence failed to show sufficient connection between gun owned by defendant and stored in his home and possession of drugs several miles away when defendant was not convicted of conspiracy).
The distriсt court in the case at bar based its decision upon a presumption that Siebe was an armed police officer. This is a case of first impression. This court has not addressed the question of whether a presumption based upon the fact that a defendant is a police officer can be used for an
Acceptance of responsibility
The defendant also objects to the fаct that he was not given credit for acceptance of responsibility. As observed in United States v. Cartwright, 6 F.3d 294, 304 (5th Cir. 1993), cert. denied, 513 U.S. 1060 (1994), this court has applied various standards to reviewing a district court‘s refusal to credit acceptance of responsibility: сlearly erroneous, without foundation, and great deference. It was noted, however, that “[t]here appears to be no practical difference between the three standards.” Id. Regardless of the formulation, the sentencing guidelines indicate that [t]he sentencing judge is in a unique position to evaluate a defendant‘s аcceptance of responsibility.”
The facts, as stated in the PSR and specifically adopted by the сourt, demonstrate that the defendant did not accept responsibility. The fact that a defendant may exercise his right to a trial by jury is not a reason for denying the two points, but the fact that a defendant has never admitted to
The guidelines allow a decrease of two points “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.”
The district court based its determination upon Siebe‘s illegal conduct while on pretrial release in threatening his probation officer, possessing a firearm, and refusing to surrender to authorities on demand. The district cоurt also noted that Siebe was aware of the FBI investigation for nine months before he came forward and аdmitted his responsibility for the theft of cocaine.
The district court‘s determination that Siebe had not accеpted responsibility was not clearly erroneous. This portion of the district court‘s decision is AFFIRMED.
Because we find the enhancement for firearm possession to be inappropriate, the sentence is VACATED and this case is remanded to the district court for proceedings consistent with this opinion.