United States v. Raymond Napolitan

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 13-1863 & 13-1936

_____________

UNITED STATES OF AMERICA,

Appellant in No. 13-1936

v.

RAYMOND A. NAPOLITAN,

Appellant in No. 13-1863

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 2-11-cr-00146-001

District Judge: The Honorable Arthur J. Schwab

Appeal No. 13-1863 Submitted under Third Circuit LAR

34.1 (a) on May 14, 2014

Appeal No. 13-1936 Argued on May 14, 2014

Before: SMITH, VANASKIE, and SHWARTZ,

Circuit Judges

1

(Filed: August 6, 2014)

Rebecca R. Haywood

Donovan Cocas [ARGUED]

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for United States of America

Lisa B. Freeland

Renee Pietropaolo [ARGUED]

1500 Liberty Center

1001 Liberty Avenue

Pittsburgh, PA 15222

Counsel for Raymond Napolitan

_____________________

OPINION

_____________________

SMITH, Circuit Judge.

Raymond Napolitan was convicted in the United States

District Court for the Western District of Pennsylvania of

possession with intent to distribute 500 grams or more of

cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B)(ii). He was subsequently sentenced to a term of

imprisonment of 78 months, which the District Court ordered

to run consecutively with a sentence Napolitan was already

2

serving on a separate state offense. Napolitan appeals his

conviction, arguing that a new trial is warranted because two

of the Government’s witnesses testified falsely at trial. The

Government cross-appeals from the judgment of sentence,

arguing that the District Court erred in refusing to impose

sentencing enhancements under U.S.S.G. §§ 2D1.1(b)(1) and

3C1.1. For the reasons expressed below, we will affirm

Napolitan’s conviction, but will vacate his sentence and

remand for resentencing.

I.

On June 29, 2007, four police officers with the

Southwest Mercer County Regional Police Department were

dispatched to Napolitan’s home in response to a 911 call.

Although no one was at the home when the officers arrived,

Lisa Rodemoyer—Napolitan’s live-in girlfriend of seven

years—arrived within a few minutes and invited the officers

inside. Once inside, the officers discovered a loaded

Browning .32 caliber handgun on the fireplace mantel. One of

the officers cleared the weapon, then stepped into Napolitan’s

office to use the light from a desk lamp to read the serial

number. There on the desk, the officer observed a box of

sandwich baggies, a coffee grinder, a digital scale, and white

powder residue. Suspecting drug activity, the officers

departed Napolitan’s home and obtained a search warrant.

In the search of the home that followed, the officers

found a .22 caliber handgun sitting on top of a locked gun

safe in a closet connected to the office. They also found a bag

of Inositol, a cutting agent used by cocaine traffickers to

dilute the drug. Unable to open the safe, investigators asked

3

Corporal John Rococi, who had a prior relationship with

Napolitan, to call Napolitan and ask for the combination.

Rococi reported back that, in response to his request,

Napolitan stated: “If they get into that safe, I’m hit.” App.

127. Napolitan declined to provide the combination to the

safe so that investigators had to engage a locksmith to open it.

The safe contained a variety of firearms, including a

.25 caliber Dickson Detective semi-automatic handgun, a .32

caliber Colt semi-automatic handgun, six shotguns, ten long

rifles, and one black powder rifle. It also contained $9,235 in

cash, Napolitan’s checkbook, and a variety of painkillers

prescribed for Napolitan. Most importantly, it contained

nearly one kilogram of cocaine powder.

Napolitan was arrested a few days later and

subsequently charged in a two-count indictment with

possession with intent to distribute 500 grams or more of

cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B)(ii), and possession of a firearm in furtherance of a

drug trafficking crime, in violation of 18 U.S.C. § 924(c).

Napolitan chose to go to trial, and maintained that the drugs

belonged to Rodemoyer. He took the stand in his own defense

and admitted ownership of the safe and most of its other

contents, but claimed that he did not know about the drugs.

Although acknowledging that Rodemoyer did not know the

combination to the safe, Napolitan claimed that she accessed

it using a large skeleton key (between eight and twelve inches

in length) which she had ordered directly from the

manufacturer. Napolitan explained that Rodemoyer would

insert this key into a slot that was revealed by unscrewing and

removing the combination pad affixed to the front of the safe.

4

Napolitan’s defense also included the testimony of a longtime

friend, Scott Trepanosky, who testified to having heard

rumors that Rodemoyer sold cocaine in the past and that he

had seen Rodemoyer open the safe with a skeleton key.

Prosecutors did not have knowledge of Napolitan’s

allegations against Rodemoyer at the time she testified for the

Government. As a witness in the Government’s case-in-chief,

she conceded that she had never seen Napolitan deal drugs.

She did state, however, that she heard him talk on the phone

in coded language and that she was sometimes asked to leave

the house she shared with him or stay in a bedroom when

people came to the house. On direct examination, Rodemoyer

testified that she neither knew the combination to the safe nor

had access to its contents. She affirmed this position on cross-

examination, providing the following response which is

relevant to this appeal:

Q: Okay. And it is your testimony that you

never had access to that safe?

A: Correct.

App. 77. And Rodemoyer repeated this position on re-

cross:

Q: And again, you’re telling us that you

never went in that safe, and you couldn’t

have gotten in?

A: No.

Q: That’s what your testimony was?

5

A: Yes.

App. 82. Significantly, neither the prosecution nor the defense

asked Rodemoyer whether she had ever possessed a skeleton

key that could have been used to access the safe.

Among the various other witnesses for the

Government was Sergeant Charles Rubano, who testified

concerning the contents of the safe and other items recovered

during the search of the home. Relevant for purposes of this

appeal, Sergeant Rubano provided the following testimony

about finding a skeleton key inside the safe:

Q: And at some point did you find a key to that

safe?

A: Yeah. The key was inside the safe.

Q: You found no other keys?

A: Correct.

App. 93.

Throughout the trial, the Government belittled

Napolitan’s claim that Rodemoyer obtained her own key to

the safe. During its cross-examination of Napolitan, the

Government pointedly asked how it was that Rodemoyer

accessed the safe with a skeleton key when no such key had

been recovered outside the safe. App. 211–12. The

Government also rebuffed Napolitan’s “key theory” during its

closing argument to the jury:

6

Now, Mr. Napolitan said in his testimony that

there were multiple keys. Did you see multiple

keys here today? Did you see other keys to the

safe that were possessed by Lisa or anyone

else? This was a long skeleton type key. Clearly

the police would have found and seized that.

App. 229.

The jury ultimately convicted Napolitan on count one,

possession with intent to distribute more than 500 grams of

cocaine. The jury did not consider the firearm charge in count

two because the District Court granted Napolitan’s Rule 29

motion for judgment of acquittal at the close of the

Government’s case-in-chief.1

The day before Napolitan was set to be sentenced,

Rodemoyer contacted the prosecutor and informed him that,

six to eight months before the drugs were discovered, she had

in fact purchased a key to the safe from the manufacturer. The

1

The District Court’s invocation of Rule 29 to dismiss

the firearms charge before the case went to the jury rendered

its decision not appealable. See United States v. Scott, 437

U.S. 82, 91 (1978) (“A judgment of acquittal, whether based

on a jury verdict of not guilty or on a ruling by the court that

the evidence is insufficient to convict, may not be appealed

and terminates the prosecution when a second trial would be

necessitated by a reversal.”). In an attempt to preserve the

right of appeal, the Government asked the Court to hold its

decision in abeyance until after count two was submitted to

the jury. The Court denied this request. App. 177–78.

7

prosecutor immediately relayed this information to defense

counsel. At the sentencing hearing, Rodemoyer testified that

she had ordered the key because she had wanted to leave

Napolitan—who was physically abusing her—but first

needed to recover her driver’s license, birth certificate, and

Social Security card, all of which Napolitan kept locked in the

safe. Rodemoyer claimed, however, that Napolitan found the

key a few days later, punched her in the face, and took it

away from her before she could use it. In response to defense

counsel’s questions, Rodemoyer explained that she did not

inform the prosecutor about the key sooner because no one

asked her at trial whether she herself had a key. Further, she

explained that she was not alerted to the issue because she

had not attended any aspect of the trial other than her own

testimony and was thus not aware of Napolitan’s allegation

that she had accessed the safe with a key. App. 417–18.

Sergeant Rubano also testified at the sentencing

hearing, revisiting his earlier trial testimony about the items

discovered in the safe. Rubano reported that investigators had

recovered two keys inside the safe:

Q: Other than the key found inside the safe,

the key or keys found inside the safe, did

you find any other keys?

A: No. Just the two keys.

Q: So there are two keys in the safe?

A: Special keys for opening safes, yes.

8

App. 430. Defense counsel asked Rubano whether he had

testified at trial that only one key was recovered, but Rubano

asserted that he did not remember making such a statement.

He also stated that the two keys had not been noted on his

inventory sheet because they were found after the initial

search when investigators discovered a false bottom in the

safe.

In light of the testimony offered at the hearing, the

District Judge decided to have the parties brief any new

issues, and he rescheduled the sentencing hearing for a later

date. In the interim, Napolitan moved the Court to reconsider

his previously filed Rule 29 motion for judgment of acquittal

on count one. He argued that new facts discovered at the

sentencing hearing—i.e., that Rodemoyer had ordered a key

to the safe and that law enforcement had recovered two keys

inside the safe—made it apparent that the prosecution had

introduced false testimony at trial. Although the motion was

cast as one under Rule 29, the District Court orally agreed to

consider it also as one under Rule 33 (motion for new trial)

and Rule 34 (motion for arrest of judgment). Concluding that

the trial testimony was not inconsistent with the sentencing

testimony, the Court denied the motions.

The presentence investigation report (“PSR”)

recommended imposing separate enhancements under

U.S.S.G. § 2D1.1(b)(1), for possession of a firearm in

connection with a drug offense, and under U.S.S.G. § 3C1.1,

because Napolitan obstructed justice by testifying falsely at

trial. With the inclusion of these enhancements, Napolitan’s

Guidelines range was 121 to 151 months.

9

The District Court, however, refused to apply §

2D1.1(b)(1)’s firearm enhancement, stating:

I think the firearms are not the type of firearms

that certainly are used by gun [sic] dealers.

Having had two extensive gang/drug related

cases over the last couple years . . . , these are

not the type of firearms in my experience . . .

that are used in connection with drug

trafficking.

App. 404–05. The judge did not directly address the handguns

in the safe or the .22 caliber pistol on top of the safe, and he

only briefly mentioned the loaded Browning .32 caliber

handgun discovered on the mantel, concluding that its

presence did not require imposition of the enhancement

because it “was not physically in the same room” and “was

certainly not within a ‘few feet’ of the safe.” App. 405. The

Court also incorporated its opinion and statements regarding

dismissal of the § 924(c) charge as an additional basis for

rejecting the firearm enhancement, including the statement

that Napolitan had “a constitutional right to carry a handgun

that’s legally owned by him around his house.” App. 176,

405.

The District Court also refused to apply the obstruction

of justice enhancement in § 3C1.1. The Court explained:

I don’t know that the record supports it, and I

am concerned that it really has a chilling effect

on a Defendant that provides a defense in the

10

case, including taking the stand or putting

witnesses on the stand.

App. 466. Beyond this statement, the Court did not provide

any further explanation for his refusal to apply the

enhancement.

Without the two enhancements, Napolitan’s

Sentencing Guidelines range dropped to between 78 and 97

months. The District Court sentenced Napolitan at the bottom

of the range to 78 months in prison, and ordered that the

federal sentence run consecutively with a state sentence he

was already serving for sexually assaulting Rodemoyer.

These consolidated appeals timely followed.2

II.

We first address the issues raised in Napolitan’s

appeal. Napolitan argues that a new trial is warranted because

new evidence revealed at sentencing shows that his

conviction was based on falsified testimony. Napolitan argues

that Rodemoyer testified falsely when she claimed she never

had access to the safe, and that Sergeant Rubano testified

2

The District Court had jurisdiction under 18 U.S.C. §

3231. We have jurisdiction of this appeal pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(b).

11

falsely by suggesting he found only one key inside it. We

disagree.3

Our court has identified five requirements that a

defendant must satisfy before he will be granted a new trial

on the basis of newly discovered evidence. The defendant

must (1) identify newly discovered evidence; (2) allege facts

from which his diligence can be inferred; (3) demonstrate the

evidence is not merely cumulative or impeaching; (4) show

the evidence is material to the issues involved; and (5) show

the evidence is such that, if introduced at trial, it would

probably produce an acquittal. United States v. Kelly, 539

F.3d 172, 181–82 (3d Cir. 2008). “Although the decision to

grant or deny a motion for a new trial lies within the

3

Napolitan also argues that the District Court abused its

discretion when it ordered his federal sentence to run

consecutively with a state sentence he was already serving. In

announcing its decision to make the two sentences run

consecutively, the District Court explained that its policy was

to make “separate sentences run consecutively if they involve

separate crimes.” App. 473. Napolitan argues that the Court

committed procedural error by basing its decision to impose a

consecutive sentence on its sentencing practice, rather than on

an individualized assessment of the factors set forth in 18

U.S.C. § 3553(a). This issue is rendered moot by our

decision, discussed below, to vacate Napolitan’s sentence

based on an erroneous application of the Sentencing

Guidelines. On remand, the District Court will have an

opportunity to impose a consecutive sentence, if it so chooses,

and should connect its decision to do so with its consideration

of the § 3553(a) factors. See 18 U.S.C. § 3584(b).

12

discretion of the district court, the movant has a ‘heavy

burden’ of proving each of these requirements.” Id. (quoting

United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006)).

“If just one of the requirements is not satisfied, a defendant’s

Rule 33 motion must fail.” Id. (citing United States v. Jasin,

280 F.3d 355, 365 (3d Cir. 2002)).

We begin with Rodemoyer’s testimony. The

prosecutor’s examination of Rodemoyer only briefly

addressed her connection to the gun safe. He asked

Rodemoyer whether she knew the combination to the safe or

otherwise had access to it, to which she twice responded,

“No.” App. 70–71. Defense counsel’s inquiry was equally

limited, consisting of just two leading questions, which

prompted Rodemoyer’s agreement that she “never had access

to [the] safe” and “never went in the safe, and . . . couldn’t

have gotten in.” App. 77 & 82. Napolitan argues that these

statements are inconsistent with Rodemoyer’s testimony at

the sentencing hearing. There, Rodemoyer admitted that she

had purchased a key several months before the drugs were

found but that Napolitan had beaten her and taken it away

before she had been able to use it. App. 409–10.

As a preliminary matter, Napolitan cannot claim that

Rodemoyer falsely denied ever having a key to the safe. At

trial, the subject was simply not inquired into by either side.

Neither the prosecution nor the defense asked Rodemoyer

whether she possessed a key to the safe at the time the drugs

were discovered or at any time prior to that. Defense

counsel’s failure to ask Rodemoyer about the key is

noteworthy considering that the “key theory” was central to

Napolitan’s defense. See United States v. Whiteford, 676 F.3d

13

348, 361 n.11 (3d Cir. 2012) (noting that defendant arguably

fell short of the diligence requirement in failing to cross-

examine witness regarding the issue raised on appeal).

Without direct testimony concerning the key, these

two sets of statements are inconsistent only if we conclude

that Rodemoyer’s brief possession of a key several months

before the drugs were recovered conflicts with her statement

at trial that she “never had access to the safe.” We agree with

the District Court that these statements are not necessarily

inconsistent. Rodemoyer testified at the sentencing hearing

that Napolitan beat her and forcefully seized the key not long

after she obtained it and before she had an opportunity to use

it. We accept this statement as true and have no reason to

doubt Rodemoyer’s subjective belief that she lacked access to

the safe, even during the brief period when the key was in her

possession. At the very least, there is simply not enough here

for us to conclude that a jury presented with this testimony

would have acquitted Napolitan of the charge. Indeed, even if

evidence at sentencing had revealed that Rodemoyer had

access to the safe at the time the drugs were discovered

(which it did not), Napolitan could still have been convicted

on a theory of constructive possession. It was undisputed that

he had ready access to the safe and used it to store his

belongings.

We are likewise not persuaded by Napolitan’s

assertion that Sergeant Rubano’s trial testimony was false.

The prosecutor asked Rubano two questions regarding the

safe key. First, he asked whether Rubano found “a key” to the

safe, to which Rubano responded, “Yeah. The key was inside

the safe.” App. 93. The prosecutor followed up by asking,

14

“You found no other keys?,” to which Rubano responded,

“Correct.” Id. At sentencing, Rubano testified that his team

recovered two skeleton keys on a single ring in a false bottom

of the safe.

Although the prosecutor’s questions during trial

referred to “a key” in the singular, the record does not

necessarily indicate that Rubano intended to take the position

that only one key was found in the safe. Rubano may have

understood the prosecutor to have been asking whether a key

was recovered outside the safe (i.e., where Rodemoyer could

have utilized it). A focus on where the key was found—as

opposed to how many keys were found—is consistent with

the point the Government pressed during summation, when it

argued that if Rodemoyer had a key it would have been found

outside the safe.

Yet even if Rubano’s statements are inconsistent, such

inconsistency does not equate to falsity that comes with the

implication that the witness was deliberately withholding

material information. Rather, this discrepancy was most likely

due to Rubano’s faulty memory on a point that had little

consequence to the trial. Indeed, whether one key or two keys

were recovered was immaterial. In either event, the keys were

in the one place Rodemoyer could not get them: inside the

safe. Furthermore, we again emphasize that defense counsel

did not make a diligent effort to explore this issue with

Rubano while he was on the stand, failing to ask even a single

question regarding the number of keys found in the safe.

There were multiple avenues available for Napolitan to

explore these issues during trial, most notably by asking

15

direct questions to Rubano and Rodemoyer regarding his

theory that Rodemoyer possessed a key to the safe. Napolitan

did not avail himself of these opportunities. Because he did

not exercise diligence in exploring these matters during trial,

Napolitan cannot now parse each word in the record in an

attempt to gin up a claim of prosecutorial misconduct. We can

find no support for Napolitan’s claim that newly discovered

evidence warrants a new trial. Napolitan’s conviction will be

affirmed.4

III.

In its cross-appeal, the Government contends that the

District Court erred by refusing to apply two sentencing

enhancements recommended in the PSR: (1) an enhancement

for possessing a firearm in connection with a drug offense

under U.S.S.G. § 2D1.1 and (2) an enhancement for

obstructing justice by committing perjury on the stand under

U.S.S.G. § 3C1.1. Because we find procedural errors in the

District Court’s assessment of both of these enhancements,

4

Napolitan also seeks a new trial under the Due Process

Clause on the basis of alleged prosecutorial misconduct.

Because Napolitan failed to preserve this argument, we

review this claim for plain error. Napolitan cannot show that

it was plain error not to grant a new trial because, among

other things, he has not shown the Government knew or

should have known that Rodemoyer or Rubano provided

inaccurate, let alone perjurious, testimony.

16

we will vacate Napolitan’s sentence and remand for

resentencing.5

A.

We begin by addressing the District Court’s refusal to

apply the firearm enhancement set forth in U.S.S.G. §

2D1.1(b)(1). We review a district court’s factual

determinations for clear error. United States v. Drozdowski,

313 F.3d 819, 822 (3d Cir. 2002). We find clear error if, when

reviewing the entire record, we are “left with the definite and

firm conviction that a mistake has been committed.” United

States v. Kulick, 629 F.3d 165, 168 (3d Cir. 2010). We apply

plenary review to a district court’s interpretation of the

Sentencing Guidelines. United States v. Bethancourt, 65 F.3d

1074, 1080 (3d Cir. 1995).

5

After both parties filed their notices of appeal, the

District Court sua sponte issued an amended judgment

pursuant to Fed. R. Crim. P. 36. The amended judgment

purported to make clerical modifications, but also removed

language in the original judgment providing that Napolitan’s

federal sentence was to run consecutive to a state sentence he

was already serving. The Government argues that removing

this language constituted an impermissible substantive

modification, and thus asks that we vacate the amended

judgment and remand with instructions that the new judgment

be brought into accord with the oral pronouncement of

sentence. This issue is rendered moot by our decision to

vacate the judgment on other grounds. On remand, the

District Court is instructed to ensure that the written judgment

is consistent with the oral pronouncement of sentence.

17

When a defendant is convicted of a drug trafficking

offense, U.S.S.G. § 2D1.1(b)(1) provides that “[i]f a

dangerous weapon (including a firearm) was possessed,” the

sentencing calculation should be “increase[d] by 2 levels.”

The commentary to this Guideline explains that the

enhancement “reflects the increased danger of violence when

drug traffickers possess weapons.” U.S.S.G. § 2D1.1 cmt.

n.11. According to the commentary, “[t]he enhancement

should be applied if the weapon was present, unless it is

clearly improbable that the weapon was connected with the

offense.” Id. (emphasis added). To illustrate when it might be

clearly improbable that a weapon is connected to the offense,

the commentary explains that “the enhancement would not be

applied if the defendant, arrested at the defendant’s residence,

had an unloaded hunting rifle in the closet.” Id. We have

noted that the clearly improbable standard presents a

significant hurdle that “defendants have rarely been able to

overcome.” Drozdowski, 313 F.3d at 822.

“[T]he question of whether it is clearly improbable

that a gun was used in connection with a drug offense is a

fact-bound determination.” Drozdowski, 313 F.3d at 823. We

have identified four factors relevant to this inquiry:

(1) the type of gun involved, with clear

improbability less likely with handguns than

with hunting rifles, (2) whether the gun was

loaded, (3) whether the gun was stored near the

drugs or drug paraphernalia, and (4) . . .

whether the gun was accessible.

18

Id. at 822–23 (internal citations omitted).

During the sentencing hearing, the Government

correctly noted that, because a weapon was found at the

house, the firearm enhancement should be applied “unless it’s

clearly improbable that the weapon was connected to the

offense.” App. 401. The prosecutor then addressed the

Drozdowski factors and argued that all four weighed in favor

of the enhancement. He emphasized that the Browning .32

caliber handgun found just outside the office “was a loaded

handgun found directly near the cocaine within feet of it, and

[was] obviously accessible, as it was right on the mantle

[sic].” App. 402. Further, the Government contended that the

enhancement was applicable in “consider[ation] [of] the fact

that [an] additional two other handguns [were] found, one on

the safe, one inside the safe, and as well as [the fact that] the

hunting rifle[s] were all found directly next to the nearly one

kilogram of cocaine.” App. 403.

The District Court rejected these arguments, giving the

following explanation for its refusal to apply the

enhancement:

I don’t believe the enhancement is applicable

here. I think the firearms are not the type of

firearms that certainly are used by gun [sic]

dealers. Having had two extensive gang/drug

related cases over the last couple years . . . ,

these are not the type of firearms in my

experience . . . that are used in connection with

drug trafficking. Secondly, the one weapon

that’s pointed to, again, was not physically in

19

the same room; and at least as I remember the

testimony, it was certainly not within a “few

feet” of the safe.

App. 404–05 (emphasis added).

Based on this discussion, we must conclude that the

District Court misapplied the relevant standard under §

2D1.1(b)(1). Notably absent from the District Court’s

analysis is any reference to the “clearly improbable” standard

set forth in the commentary to § 2D1.1. Instead, the Court

rejected the enhancement because the guns recovered were

“not the type of firearms that certainly are used by [drug]

dealers.” App. 404–05 (emphasis added). But the

Government is not required to show that the firearms were

“certainly” the type used by drug dealers. Such a requirement

tortures the clearly improbable standard and plainly sets the

bar too high.

The government bears the burden of proving by a

preponderance of the evidence that a sentencing enhancement

applies. See United States v. Grier, 475 F.3d 556, 568 (3d Cir.

2007) (en banc). With respect to § 2D1.1(b)(1), the

government must show only that the defendant “possessed” a

dangerous weapon, and it can do so by establishing “that a

temporal and spatial relation existed between the weapon, the

drug trafficking activity, and the defendant.” United States v.

Ruiz, 621 F.3d 390, 396 (5th Cir. 2010) (quoting United

States v. Cisneros-Gutierrez, 517 F.3d 751, 764–65 (5th Cir.

2008)). Once the government makes out a prima facie

showing that the defendant drug-dealer possessed a weapon,

the burden of production shifts to the defendant to

20

demonstrate that the connection between the weapon and the

drug offense was “clearly improbable.” See United States v.

Greeno, 679 F.3d 510, 514 (6th Cir. 2012), cert. denied, 133

S. Ct. 375 (2012) (explaining that once the government has

met its burden, the burden shifts to the defendant to present

evidence showing the drug-weapon connection was “clearly

improbable”). We emphasize that the ultimate burden of

proving the applicability of the enhancement remains at all

times with the government. But once the government has

made a prima facie showing that the defendant possessed the

weapon, the enhancement should be applied unless the

defendant can demonstrate that the drug-weapon connection

was clearly improbable.

This burden shifting approach follows from the plain

language of U.S.S.G. § 2D1.1(b)(1). The Guideline itself does

not require a connection between the firearm and the drug

offense, but requires only that the firearm was “possessed” by

the defendant. U.S.S.G. § 2D1.1(b)(1). The commentary

elaborates on the possession requirement, explaining that the

adjustment should be applied “if the weapon was present,

unless it is clearly improbable that the weapon was connected

with the offense.” U.S.S.G. § 2D1.1 cmt. n.11 (emphasis

added). The term “unless” creates an exception to the general

rule that the enhancement should be applied if a firearm was

present. And the party seeking the exception, here the

defendant, bears the burden of showing that he qualifies for

its invocation.

We have not previously described the shifting burdens

under § 2D1.1(b)(1) in this manner. See United States v.

Thornton, 306 F.3d 1355, 1357 (3d Cir. 2002) (noting only

21

dicta from our court on the issue). In adopting this burden-

shifting framework today, we join the vast majority of our

sister circuits that have addressed the question. See, e.g., Ruiz,

621 F.3d at 396 (“The Government bears the burden of

proving by a preponderance of the evidence that the

defendant possessed the weapon . . . . If the Government

meets that burden, the burden shifts to the defendant to show

that it was clearly improbable that the weapon was connected

with the offense.”); United States v. Smythe, 363 F.3d 127,

128 (2d Cir. 2004) (articulating same burden shifting

approach); United States v. Fudge, 325 F.3d 910, 922 (7th

Cir. 2003) (same); United States v. Alexander, 292 F.3d 1226,

1231 (10th Cir. 2002) (same); United States v. Harris, 128

F.3d 850, 853 (4th Cir. 1997) (same); United States v. Hill, 79

F.3d 1477, 1485 (6th Cir. 1996) (same); United States v. Hall,

46 F.3d 62, 63 (11th Cir. 1995) (same); United States v.

Corcimiglia, 967 F.2d 724, 727–28 (1st Cir. 1992) (same);

United States v. Restrepo, 884 F.2d 1294, 1296 (9th Cir.

1989) (same).

Only the Eighth Circuit has staked out a different path,

declaring that “[t]he government must . . . show that it is not

clearly improbable that the weapon was connected to the drug

offense.” United States v. Peroceski, 520 F.3d 886, 889 (8th

Cir. 2008). We consider this approach logistically

problematic. It would essentially require the government to

prove a negative—i.e., that a connection between a weapon

and the defendant’s drug activity was “probably not clearly

improbable”—before the sentencing court could impose the

enhancement. But more importantly, we believe such an

approach is inconsistent with the text of § 2D1.1 and for that

reason decline to adopt it as the law of this circuit.

22

The Government here met its burden of showing that

Napolitan possessed a weapon. It presented evidence that the

safe where the drugs were found was filled with firearms of

all types, and that there were two other handguns outside the

safe in the general vicinity of the drugs and drug

paraphernalia. Thus, the burden of production should have

shifted to Napolitan to come forward with evidence showing

that the connection between the firearms and the drug offense

was clearly improbable. Instead of following this procedure,

the District Court required the Government to prove that the

guns were “certainly” the type used by drug dealers.

Imposing such a burden on the Government was improper.

Our conclusion that the Court misapplied the standard

is not based solely on the fact that the Court never invoked

the term “clearly improbable.” This omission might be

forgivable if the record indicated that the Court otherwise

considered the pertinent factors we have identified for the

clearly improbable determination. See Drozdowski, 313 F.3d

at 822–23. But the record does not provide such an indication.

As already noted, the Government argued at

sentencing that the enhancement was warranted based on any

one of the three handguns found in or around the safe.

Specifically with respect to the .32 caliber on the mantel, the

Government argued that the Drozdowski factors favored

application of the enhancement because it was (1) a handgun

(which is generally the type of firearm involved in drug

trafficking crimes), (2) loaded, (3) in close proximity to

where the drug paraphernalia was first observed because it

was just outside the only entrance to the office, and (4) easily

accessible. Despite the Government’s methodical discussion

23

of each of the four Drozdowski factors, the only reason

provided by the District Court for not applying the

enhancement was that the .32 caliber handgun on the mantel

“was not physically in the same room” as the drugs and “not

within a few feet of the safe.” App. 405. This statement fell

woefully short of the analysis that was required.

As a preliminary matter, the Court failed to

acknowledge either the .22 caliber pistol sitting on top of the

safe or the handguns inside the safe, all of which the

Government explicitly referenced in support of the

enhancement. Because we are unable to evaluate whether the

Court properly considered these weapons in light of the four

Drozdowski factors, we must assume it did not.

With respect to the Browning .32 caliber pistol (which

the Court did address), the Court noted only that this firearm

was “not within a ‘few feet’ of the safe” where the drugs were

stored. App. 405. This statement, however, ignores the gun’s

proximity to the desk where the sandwich baggies, digital

scale, and other drug paraphernalia were first observed. Our

cases demonstrate that § 2D1.1 may apply even where “there

were no drugs in the house,” provided the gun was found near

other indicia of drug activity. See Drozdowski, 313 F.3d at

823 (applying enhancement where guns were discovered near

“a great deal of drug paraphernalia,” including “a large

number of zip-lock bags,” a bag of Inositol, and “owe

sheets”). It was undisputed that this gun was recovered mere

“steps” from the contraband on the desk.6 This fact should

6

At oral argument, defense counsel conceded that “it is

a small house, so it is steps [from the mantel] to the office.”

24

have been considered as part of the Court’s analysis. Id. at

822 (listing as a factor “whether the gun was stored near the

drugs or drug paraphernalia”) (emphasis added).

The Court also placed too much emphasis on the fact

that the Browning .32 caliber pistol was “not physically in the

same room” as the drugs. The firearm enhancement may be

appropriate in circumstances where weapons are found in a

room other than the one where the contraband was ultimately

discovered. See Drozdowski, 313 F.3d at 821 (applying

enhancement despite that “there were no drugs in the house”

where the firearms were discovered). Where, as here, a

loaded handgun is found a few steps from a substantial

collection of drug paraphernalia, a clearly improbable finding

cannot be based solely on the fact that the gun was just

beyond the only entrance to the room where the paraphernalia

was recovered. Under these circumstances, a proper analysis

requires consideration of the totality of the Drozdowski

factors.

Rather than analyzing the four Drozdowski factors, the

Court provided its own alternative grounds for denying the

enhancement. First, it relied on its own personal experience

with “two extensive gang/drug related cases,” stating that this

experience supported its finding that the guns were “not the

type” used by drug dealers. App. 405. As defense counsel

conceded at oral argument, the sentencing judge’s previous

trial experience was not evidence offered at sentencing and

was not a proper basis for denying the enhancement. Second,

the Court incorporated its reason underlying its previous

dismissal of the 18 U.S.C. § 924(c) count, including its

suggestion that Napolitan “has a constitutional right to carry a

25

handgun that’s legally owned by him around his house.” App.

176, 405. Needless to say, while the Second Amendment

secures “the right of law-abiding, responsible citizens to use

arms in defense of hearth and home,” District of Columbia v.

Heller, 554 U.S. 570, 635 (2008), it does not entitle a drug

trafficker to carry a firearm in furtherance of his criminal

exploits, nor does it have any bearing on the application of

U.S.S.G. § 2D1.1(b)(1)’s firearm enhancement.

Based on the foregoing, we conclude that the District

Court misapplied the controlling standard under U.S.S.G. §

2D1.1. We will vacate Napolitan’s sentence and remand for

resentencing consistent with the burden-shifting procedure

outlined in this opinion.

B.

The Government next argues that the District Court

erred in refusing to apply a two-level enhancement under

U.S.S.G. § 3C1.1, because Napolitan committed perjury at

trial. Section 3C1.1 provides for a two-level enhancement if a

defendant “willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect

to the . . . prosecution” through conduct that related to “the

defendant’s offense of conviction.” U.S.S.G. § 3C1.1. The

commentary provides that offering perjurious testimony

constitutes an obstruction of justice. See U.S.S.G. § 3C1.1

cmt. n.4(B). A defendant who testifies under oath at trial

commits perjury within § 3C1.1 if he “gives false testimony

concerning a material matter with the willful intent to provide

false testimony, rather than as a result of confusion, mistake,

26

or faulty memory.” United States v. Dunnigan, 507 U.S. 87,

94 (1993).

The Government contends that Napolitan committed

perjury within this definition when he testified on direct and

cross-examination that he was unaware of both the cocaine

stored in his safe and the drug paraphernalia scattered

throughout his home office.7 It further argues that these

7

The following excerpts from Napolitan’s direct

examination are relevant to the Government’s claim that he

committed perjury:

Q: Okay. Did you ever see any cocaine in

the safe until they seized the safe and

showed you the evidence?

A. No, sir.

....

Q: Were you dealing drugs out of your

home in Farrell?

A: No, sir.

App. 202–03. Additionally, the Government cites the

following exchange, which occurred on cross-examination

following multiple questions regarding the “digital scales,”

“plastic baggies with the corners cut off,” and “inositol”

found in Napolitan’s home office:

Q: So you never walked by the office?

A: Yes. I did.

Q: You never saw evidence of drug

packaging going on?

27

denials were made with willful intent to mislead the jury

regarding a material issue, namely his possession of the

cocaine with the intent to distribute it. According to the

Government, the falsity of Napolitan’s testimony was

established through the testimony of the Government’s

witnesses, including Rodemoyer, and was necessarily implicit

in the jury’s verdict finding Napolitan guilty of the charged

drug-trafficking offense.

The District Court denied the Government’s request

for a perjury enhancement under § 3C1.1, offering the

following explanation for its decision:

I don’t know that the record supports it, and I

am concerned that it really has a chilling effect

on a Defendant that provides a defense in the

case, including taking the stand or putting

witnesses on the stand.

App. 466. The Government argues that both of these grounds

were improper. First, it argues that the District Court

impermissibly based its determination on a policy concern

that imposition of the perjury enhancement will have a

“chilling effect” on a defendant’s right to testify. Second, the

Government contends that the Court’s assertion, “I don’t

know that the record supports it,” was not a sufficient factual

finding to support its decision. “We review the factual

findings underlying the District Court’s perjury determination

A: No, sir.

App. 218.

28

for clear error, while exercising plenary review over the

District Court’s conclusions of law.” United States v. Miller,

527 F.3d 54, 75 (3d Cir. 2008).

We agree that a district court cannot refuse to apply §

3C1.1 based solely on a policy concern that the enhancement

deters defendants from exercising their fundamental right to

testify at trial. Whatever the merit of such a concern, that ship

has sailed. The Supreme Court has explicitly rejected the

argument that permitting a perjury enhancement under

§ 3C1.1 unconstitutionally infringes on a defendant’s right to

testify. Dunnigan, 507 U.S. at 96 (“Respondent cannot

contend that increasing her sentence because of her perjury

interferes with her right to testify, for we have held on a

number of occasions that a defendant’s right to testify does

not include a right to commit perjury.”). See also United

States v. Boggi, 74 F.3d 470, 479 (3d Cir. 1996) (noting that

Dunnigan rejected the argument that the perjury enhancement

penalizes a defendant for testifying at trial because “a

defendant’s right to testify does not include a right to commit

perjury”). For this reason, it is reversible error for a district

court to reject § 3C1.1 based only on this policy concern.

That said, the District Judge here did not reject the

enhancement solely on policy grounds. He also stated: “I

don’t know that the record supports it.” App. 466. We must,

therefore, evaluate the sufficiency of this alternative reason.

The Government argues that the District Court’s

comment, “I don’t know that the record supports [the

enhancement],” was insufficient because it does not constitute

a factual finding that Napolitan did or did not commit perjury.

In support of its argument that more substantial findings were

29

required, the Government relies principally on the Supreme

Court’s decision in Dunnigan. In that case, the Court held that

whenever a defendant challenges a sentencing enhancement

under § 3C1.1 based on perjured testimony, “the trial court

must make findings to support all the elements of a perjury

violation in the specific case.” 507 U.S. at 97. Pursuant to this

directive, we have repeatedly vacated sentences and

remanded where district courts applied the perjury

enhancement without making an express finding that the

defendant committed perjury. See, e.g., United States v.

McLaughlin, 126 F.3d 130, 140 (3d Cir. 1997); United States

v. Fiorelli, 133 F.3d 218, 224 (3d Cir. 1998). Cf. Miller, 527

F.3d at 78–79 (noting Dunnigan’s requirement that trial

courts make “independent findings” on each element of

perjury, but ultimately vacating because the prosecution’s

questions at trial were not sufficiently precise to form a

predicate for the enhancement).8

Napolitan argues that Dunnigan is inapplicable

because it involved a defendant’s appeal from a judgment of

8

We have noted that “it is preferable for a district court

to address each element of the alleged perjury in a separate

and clear finding”—i.e., to specifically make findings that the

defendant (1) gave false testimony (2) concerning a material

matter (3) with the willful intent to provide false testimony.

Boggi, 74 F.3d at 479 (quoting Dunnigan, 507 U.S. at 95).

However, we do not require separate findings on each

individual element if “the court makes a finding that

encompasses all of the factual predicates for a finding of

perjury.” Id. (quoting Dunnigan, 507 U.S. at 95); see also

United States v. Gricco, 277 F.3d 339, 362 (3d Cir. 2002).

30

sentence that included a two-level enhancement under §

3C1.1, not the converse situation presented here, where the

government brings an appeal challenging a district court’s

rejection of the enhancement. Although Dunnigan did not

address the situation that we confront, the Government

contends that the requirement to make explicit factual

findings should operate with equal force when a district court

declines to apply the enhancement.

We are not persuaded that Dunnigan controls here.

The fact-finding requirement set forth in Dunnigan was

rooted in a concern that “fear of an unjustified enhancement

may chill exercise of the defendant’s constitutional right to

testify in his own defense.” Fiorelli, 133 F.3d at 221 (citing

Dunnigan, 507 U.S. at 97) (emphasis added). Requiring a

sentencing court to explicitly find that the defendant

committed perjury alleviates that concern because it helps to

ensure the enhancement is imposed only if the government

establishes that the defendant committed perjury—i.e., gave

false testimony concerning a material matter with the willful

intent to mislead the jury. See United States v. Alvarado-

Guizar, 361 F.3d 597, 606 (9th Cir. 2004) (noting that

Dunnigan’s fact-finding requirement provides a “procedural

safeguard designed to prevent punishing a defendant for

exercising her constitutional right to testify”). But the same

concerns underpinning Dunnigan’s rule are not implicated

when the enhancement is being rejected. As the Ninth Circuit

explained:

Unlike a testifying criminal defendant, the

government does not face the risk of automatic

punishment for its witnesses’ testimony in an

31

unsuccessful trial, nor does it have a

constitutional or statutory right similar to the

accused’s with respect to trial testimony.

Simply put, the government does not face the

dangers that Dunnigan’s requirement of factual

findings is designed to prevent.

Id.

For this reason, several of our sister circuits have held

that there is no requirement for a district court to make factual

findings when electing not to apply § 3C1.1. See United

States v. Vegas, 27 F.3d 773, 783 (2d Cir. 1994) (“Dunnigan

does not suggest that the court make findings to support its

decision against the enhancement.”) (emphasis in original);

Alvarado-Guizar, 361 F.3d at 606 (“There is no parallel that

requires the same result when a defendant is not receiving a

longer sentence.”). We agree with these courts that Dunnigan

does not compel explicit factual findings when a sentencing

judge decides not to impose the perjury enhancement.

Nevertheless, the fact that Dunnigan does not entitle

the government to specific factual findings does not mean that

such findings are without jurisprudential value. Our decisions

“place a premium on thorough explication of sentencing

decisions.” United States v. Grier, 475 F.3d 556, 572 (3d Cir.

2007) (en banc). And we have routinely instructed that

sentencing judges must create a record showing that their

decisions are “the product of comprehensive and thoughtful

deliberation.” Id. See United States v. Palma, 760 F.2d 475,

480 (3d Cir. 1985) (noting “the importance of the district

court’s making findings of fact to facilitate meaningful

32

appellate review of its discretionary ruling”); cf. Jackson v.

Danberg, 594 F.3d 210, 230 (3d Cir. 2010) (noting that a

court’s failure to articulate reasons for its conclusion “makes

our role as a reviewing court needlessly arduous, and

sometimes even practically impossible”). As we have

explained, “[a] reasoned and rational justification for a

sentence is necessary to assure the parties of the fairness of

the proceedings, to instill public confidence in the judicial

process, and to allow for effective appellate review.” Grier,

475 F.3d at 572. We see no reason why the importance of “a

reasoned and rational justification” is diminished when a

court declines to impose a requested enhancement.

The Fifth Circuit addressed this same sentiment in

United States v. Humphrey, 7 F.3d 1186, 1190 (5th Cir.

1993):

Although this result is not explicitly compelled

by Dunnigan . . . , we find that the district court

did have an obligation to make a finding of

whether Humphrey committed perjury in its

consideration of the government’s objection.

We see little merit in Humphrey’s contention

that the district court is only required to make

specific findings when addressing objections

made by a defendant. Implicit in the

government’s right to object to guideline

determinations, and our obligation to review

those determinations, is the district court’s

obligation to make all factual findings necessary

to establish the basis for its decisions.

33

See also United States v. Tracy, 989 F.2d 1279, 1290 (1st Cir.

1993) (vacating the sentence and remanding to the district

court “to make findings to support all the elements of a

perjury violation, or to articulate clearly the elements it

believes have not been satisfied”) (internal quotation marks

omitted). We agree with Humphrey that we cannot fulfill our

obligation to review Guideline determinations unless the

reasoning underlying the court’s conclusion is readily

discernible from the record. We thus exercise our supervisory

power to hold that, in evaluating whether to apply the perjury

enhancement under § 3C1.1, a district court must make an

explicit factual finding that the defendant did or did not give

false testimony concerning a material matter with the willful

intent to mislead the jury. See Palma, 760 F.2d at 480 (noting

our “supervisory power to require district courts in the future

to make specific findings as to the factual issues that are

relevant” to a particular sentencing decision).

Turning to the record before us, we conclude that the

Court’s statement, “I don’t know that the record supports it,”

is not a sufficient articulation of its reason for refusing to

apply § 3C1.1. Significantly, this remark does not set forth

the Court’s finding with respect to the critical issue—whether

Napolitan committed perjury. The Court may have been

disinclined to impose the enhancement in light of the

revelation at sentencing that Rodemoyer had in fact ordered a

key to the safe. Or maybe the Court’s decision was based on

its noted perception that Rodemoyer lacked credibility. See

app. 480 (stating that the Court “questioned the credibility of

Miss Rodemoyer” during trial and sentencing). Yet these are

not proper reasons for denying the enhancement if Napolitan

did, in fact, commit perjury. Application of § 3C1.1 is not

34

discretionary. If a district court determines that an “accused

has committed perjury at trial, an enhancement is required.”

Dunnigan, 507 U.S. at 98. Conversely, if the defendant did

not commit perjury, the enhancement should be rejected.

The District Court’s suggestion of agnosticism on the

question of Napolitan’s possible perjury does not provide us

with a sound basis for review. On remand, the District Court

must make a finding as to whether the Government has met

its burden of proving by a preponderance of the evidence that

the defendant perjured himself. The District Court must either

make findings to support all the elements of a perjury

violation, or clearly express which elements it believes have

not been proven. In evaluating the falsity of Napolitan’s

testimony, “the sentencing court [is bound] to accept the facts

necessarily implicit in the verdict.” Boggi, 74 F.3d at 479. If

the record also provides support for findings that a false

statement was material and willful, the enhancement must be

applied. Dunnigan, 507 U.S. at 98 (“Upon a proper

determination that the accused has committed perjury at trial,

an enhancement of sentence is required by the Sentencing

Guidelines.”).

IV.

For the reasons provided, we will affirm Napolitan’s

conviction, but will vacate his sentence and remand for

resentencing in accordance with this opinion.

35