United States v. Everhart
United States v. Everhart
Opinion of the Court
ORDER
Lawrence Eugene Everhart, represent ed by counsel, appeals from his judgment of conviction and sentence. The parties have expressly waived oral argument, and this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
In March 2002, Everhart pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 63 months of imprisonment and three years of supervised release.
Everhart has filed a timely appeal, arguing that the district court erred when it enhanced his offense level for possessing weapons or ammunition in connection with another felony offense, pursuant to USSG § 2K2.1(b)(5). He also maintains that the district court failed to provide him with a sufficient opportunity at sentencing to contest the facts supporting the § 2K2.1(b)(5) enhancement.
Upon review, we conclude that the district court properly enhanced Ever-hart’s offense level for possessing weapons and ammunition in connection with his marijuana-growing operation. This court reviews a district court’s factual findings underlying a sentencing decision for clear error and gives due deference to the district court’s application of a sentencing guideline to a factual situation. United States v. Ennenga, 263 F.3d 499, 502 (6th Cir. 2001). Sentencing Guideline § 2K2.1(b)(5) provides that a defendant’s base offense level should be enhanced by 4 levels “[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense.” The government has the burden of showing by a preponderance of the evidence that there was a nexus between the firearms and the other felony offense. Ennenga, 263 F.3d at 503. In interpreting the “in connection with” clause of § 2K2.1(b)(5), this court has adopted a “fortress theory” which concludes that a sufficient connection is established “if it reasonably appears that the firearms found on the premises controlled or owned by a defendant and in his actual or constructive possession are to be used to protect the drugs or otherwise facilitate a drug transaction.” Id. (citing United States v. Henry, 878 F.2d 937, 944 (6th Cir. 1989)).
A review of the record clearly reflects that, in March 2001, police executed a
This evidence establishes a sufficient connection between the firearms and the marijuana growing operation. The evidence clearly indicates that the entire house was utilized in the growth, packaging, and distribution of marijuana. The guns, ammunition, drugs, and drug paraphernalia were dispersed throughout the house. Contrary to Everhart’s argument, each room that contained firearms also contained drugs, drug paraphernalia, or a combination thereof (with the exception of the southeast bedroom). Hence, there was a sufficient nexus between the guns, ammunition, and the drugs found at Ever-hart’s home to warrant a § 2K2.1(b)(5) enhancement.
Finally, contrary to Everhart’s argument, the district court clearly provided him with an opportunity to challenge the § 2K2.1(b)(5) enhancement. Pursuant to Federal Rule of Criminal Procedure 32(e)(1), a sentencing court is required to afford counsel for the defendant an opportunity to comment on a probation officer’s determinations as set forth in a PSI and resolve “any unresolved objections” to the report. The purpose of the rule is to prohibit “a court faced with a dispute over sentencing factors from adopting the factual findings of the presentence report without making factual determinations of its own.” United States v. Parrott, 148 F.3d 629 (6th Cir. 1998). Here, a review of the record reflects that the district court offered defense counsel the opportunity to argue his position with respect to the § 2K2.1(B)(5) enhancement. Although counsel objected to the application of § 2K2.1(B)(5), he did not make any objections to the facts contained in the PSI. Because Everhart did not present any evidence to controvert the facts contained in the PSI, the district court was not faced with a “factual dispute” that needed to be resolved. Everhart merely denied the accuracy of the report, without presenting any evidence to controvert the facts contained in the PSI. Where a defendant merely presents a “bare denial” of the facts, a sentencing judge may still rely entirely on the PSI. See United States v. Mustread, 42 F.3d 1097, 1101-02 (7th Cir. 1994). Hence, this claim lacks merit.
Accordingly, we affirm the judgment of conviction and sentence.
Reference
- Full Case Name
- United States v. Lawrence Eugene EVERHART
- Cited By
- 1 case
- Status
- Published