United States v. James King

Case: 14-10146 Document: 00512858273 Page: 1 Date Filed: 12/04/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10146 United States Court of Appeals

Fifth Circuit

FILED

UNITED STATES OF AMERICA, December 4, 2014

Lyle W. Cayce

Plaintiff - Appellee Clerk

v.

JAMES HOWARD KING,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Defendant-appellant James Howard King (“King”) appeals the two-level

enhancement to his offense level under U.S. Sentencing Guidelines Manual

§ 2D1.1(b)(1) (“§ 2D1.1(b)(1)”) for possession of a firearm, arguing that the

enhancement is not supported by the record. He also argues that the district

court failed to resolve his objections to the § 2D1.1(b)(1) enhancement, which

is required by the Due Process Clause of the Constitution and Federal Rule of

Criminal Procedure 32(i)(3)(B) (“Rule 32(i)(3)(B)”). Finally, King appeals the

district court’s failure to apply the so-called “safety valve” provided by 18

U.S.C. § 3553(f), which, if applied, would remove the mandatory minimum

sentence for his offense of conviction. He argues that the district court’s failure

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to apply the safety valve presents a constitutional problem under Alleyne v.

United States, 133 S. Ct. 2151 (2013) because a judge rather than a jury found

the fact that precluded its application (possession of a firearm in connection

with the offense). We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

King pleaded guilty (without a plea agreement) to one count of

conspiracy to possess with intent to distribute a controlled substance, namely,

100 grams or more of a mixture or substance containing a detectable amount

of heroin, in violation of 21 U.S.C. § 846, § 841(a)(1), and § 841(b)(1)(B). The

one-count indictment specified that the conspiracy began in or before January

of 2012 and continued until on or about February 11, 2013. He and his attorney

also signed a factual resume in connection with his guilty plea. It provided

that King acted as a courier on behalf of Darron Copeland in early 2012,

picking up heroin from Dallas, Texas. The factual resume stated that, later in

2012, Copeland replaced King and others with another courier because of

interference by law enforcement. The factual resume also noted that King was

arrested in Fort Worth on July 3, 2012, with approximately 11 ounces of heroin

that he had received from a Dallas-based supplier and intended to deliver to

Copeland. As in the indictment, the factual resume stated that the conspiracy

between King, Copeland, and others lasted from January 2012 until on or

about February 11, 2013.

King was arrested a second time on February 12, 2013, at a residence on

Fairlane Avenue in Fort Worth. After King pleaded guilty, a Presentence

Investigation Report (“PSR”) was composed by a probation officer in

preparation for King’s sentencing. According to the PSR:

The information in [the Offense Conduct section of the PSR] was

obtained during an independent investigation of the offense and

relevant conduct by this probation officer. The information was

gleaned from the Criminal Complaints, charging documents, and

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Factual Résumés filed in this case, as well as investigative

material prepared and compiled by [Drug Enforcement

Administration (“DEA”)] agents and [Task Force Officers

(“TFOs”)] and police officers employed by city police departments.

In addition, interviews with DEA TFO Derrick Lopez, DEA TFO

Kent Fluitt, and DEA TFO Steve Groppi were conducted, and they

clarified and corroborated the information contained in the

investigative reports. All of the information contained herein is

based on evidence considered to be reliable by this probation

officer.

According to the PSR’s Offense Conduct section, law enforcement seized

numerous items during the search of the Fairlane Avenue residence after

King’s arrest on February 12, 2013. From the master bedroom, they seized a

“loaded and chambered High Point, .45-caliber, semiautomatic handgun” with

an “obliterated” serial number, “one empty box of .45-caliber ammunition,” and

a “plastic baggie containing numerous clear, empty capsules.” Also in the

master bedroom, law enforcement observed “a television monitor” that

“displayed the camera view of four separate cameras mounted on the exterior

of the home.” From a shelf in the laundry room, law enforcement seized 13

capsules stored in a cigarette box that contained between 0.05 and 1 gram of

heroin each. Finally, from the floor next to the backdoor, they seized a plastic

grocery bag with numerous pieces of drug paraphernalia, including “baggies,

capsules, [an] electric grinder, two electronic scales, [a] kitchen strainer, and

empty ‘cut’ bottles.”

The PSR also stated that Copeland stopped using King as a courier after

King’s first arrest on July 3, 2012. The PSR provided that, thereafter, King

continued his involvement in possessing and distributing heroin, “apart from

coconspirators.” According to the PSR, upon his second arrest on February 12,

2013, he “admitted he was involved in the distribution of drugs” but said that

he “did not have any narcotics or drug paraphernalia at his residence.”

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Based on the discovery of the handgun during the search of King’s

residence, the PSR recommended a two-level enhancement to his offense level,

based on § 2D1.1(b)(1). King objected to this enhancement, arguing that the

residence where he was arrested was his wife’s, not his own, that “[t]he weapon

was found in a drawer of his wife’s nightstand in the master bedroom and was

not in open view,” and that there was no indication that King knew the weapon

was there. King also argued that the heroin and drug paraphernalia at his

wife’s residence were for his personal use rather than for distribution and that

the PSR indicated that he ceased his involvement in the criminal conspiracy

on July 3, 2012. Consequently, King argued that he qualified for the “safety

valve” because he did not possess a firearm in connection with his offense. As

evidence supporting these objections, King attached his July 3, 2012 arrest

report, which listed an address for him that was not on Fairlane Avenue, and

a printout of a webpage about heroin addiction, which says that heroin users

often possess paraphernalia such as “[s]yringes, small plastic bags, coffee

grinders and scales.”

An Addendum to the PSR (“PSR Addendum”) responded to King’s

objections. It again asserted that King lived at the Fairlane Avenue address,

given that he was arrested at that residence and told the probation officer he

had lived there for four years. The PSR Addendum also concluded that the

handgun’s proximity to the drug paraphernalia made it probable that the gun

“had a protective function in the context of the defendant’s drug-dealing

activities.” Finally, the PSR Addendum concluded that the presence of the

heroin and paraphernalia at King’s residence demonstrated that he had

continued the “same course of conduct to possess with intent to distribute

heroin” until the date of his second arrest.

King filed a response to the PSR Addendum. He stopped arguing that

he did not reside at the Fairlane Avenue address. But he continued to argue

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that his involvement in the drug conspiracy ended on July 3, 2012, and that

the drugs and paraphernalia found at his residence were related only to his

personal drug use. He argued that any possession of a firearm months after

he stopped participating in the conspiracy was not connected to his offense of

conviction. He also argued that the district court’s application of a firearm

enhancement would subject him to a mandatory minimum sentence by making

the safety valve unavailable, which would violate Alleyne.

At sentencing, after giving the Government and King the opportunity to

present further evidence and objections, the district court overruled King’s

objections for the reasons set out in the PSR Addendum. Accordingly, the

district court imposed a two-level enhancement to his offense level based on

possession of a firearm during the offense, and it did not apply the safety valve.

It calculated King’s Sentencing Guidelines imprisonment range as 60 to 71

months, and ultimately sentenced him to 60 months of imprisonment, the

mandatory minimum sentence.

STANDARD OF REVIEW

“The district court’s determination that § 2D1.1(b)(1) applies is a factual

finding reviewed for clear error.” United States v. Ruiz, 621 F.3d 390, 396 (5th

Cir. 2010) (per curiam). “A factual finding is not clearly erroneous if it is

plausible, considering the record as a whole.” Id. Moreover, “a district court

is permitted to draw reasonable inferences from the facts, and these inferences

are fact-findings reviewed for clear error as well.” United States v. Caldwell,

448 F.3d 287, 290 (5th Cir. 2006).

Citing United States v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010), King

argues that we should apply de novo rather than clear error review. In Zapata-

Lara, we held that de novo review applied because the defendant’s argument

did “not concern the specifics of the factfinding, but, rather, whether the facts

found [were] legally sufficient to support the enhancement.” Id. at 390. But

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that case involved a peculiar situation where the district court did not make

any finding at all about whether the defendant personally possessed the

firearm or a coconspirator foreseeably possessed it. See id. at 390-91 (“We

cannot be sure what rationale the court had in mind to support the

enhancement . . . .”). In contrast, here, it is completely clear that the district

court applied the enhancement based on King’s personal possession of the

firearm, rather than a coconspirator’s possession of it. Further, both before

and after we decided Zapata-Lara, we have applied clear-error review when

reviewing the factual basis for a § 2D1.1(b)(1) enhancement. E.g., United

States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001) (decided before Zapata-

Lara); Ruiz, 621 F.3d at 396 (decided after Zapata-Lara). Given the long line

of precedent applying clear-error review to § 2D1.1(b)(1) enhancements and

the easily distinguishable situation in Zapata-Lara, we find that clear-error

review applies here.

King properly preserved his Alleyne challenge by raising it in his

objections to the PSR Addendum. Thus, we review de novo King’s challenge to

the constitutionality of his sentence. United States v. Doggett, 230 F.3d 160,

165 (5th Cir. 2000).

DISCUSSION

King challenges the district court’s failure to resolve his objections, the

application of the § 2D1.1(b)(1) enhancement, and the constitutionality of

denying the safety valve based on a judicially-determined fact. All of these

challenges fail.

I.

Rule 32(i)(3)(B) provides that, at sentencing, a district court must rule

on any objection to the PSR or “determine that a ruling is unnecessary either

because the matter will not affect sentencing, or because the court will not

consider the matter in sentencing.” A district court may fulfill this obligation

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by adopting the PSR. E.g., United States v. Huerta, 182 F.3d 361, 364 (5th Cir.

1999). Here, the district court stated that it was overruling King’s objections

for the reasons stated in the PSR Addendum. Accordingly, the district court

fulfilled its Rule 32(i)(3)(B) obligation to rule on all objections, as well as any

obligation to do so under the Due Process Clause.

II.

U.S.S.G. § 2D1.1(b)(1) provides that a two-offense-level enhancement

should be applied to a defendant convicted of conspiracy to possess with intent

to distribute a controlled substance “[i]f a dangerous weapon (including a

firearm) was possessed.” For the enhancement to apply, the Government must

first prove by a preponderance of the evidence that the defendant possessed

the firearm. The Government may do so by showing “that a temporal and

spatial relation existed between the weapon, the drug trafficking activity, and

the defendant.” Ruiz, 621 F.3d at 396 (internal quotation marks omitted).

“[T]he Government must show that the weapon was found in the same location

where drugs or drug paraphernalia are stored or where part of the transaction

occurred.” United States v. Salado, 339 F.3d 285, 294 (5th Cir. 2003). Once

the Government has met its burden, the defendant can only avoid the

enhancement by showing that “it was clearly improbable that the weapon was

connected with the offense.” Ruiz, 621 F.3d at 396.

At the outset, we find that the PSR and PSR Addendum contained

sufficient indicia of reliability to allow the district court to rely on them at

sentencing. See United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009)

(“Generally, a PSR bears sufficient indicia of reliability to permit the

sentencing court to rely on it at sentencing.” (internal quotation mark

omitted)). Here, the PSR carefully laid out the items found during the search

of the Fairlane Avenue residence after King was arrested there on February

12, 2013. Further, the probation officer cited several investigative methods

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used in preparing the PSR, including reviewing court and investigative

documents and interviewing three law enforcement officers who were involved

in the case. Because we find that the PSR contained sufficient indicia of

reliability, it was King’s burden to show that the PSR was inaccurate. Id.

Here, considering the district court’s proper reliance on the PSR and PSR

Addendum, we find that there was no clear error in the district court’s

application of the § 2D1.1(b)(1) enhancement. As to a temporal relation

between the handgun, King, and the offense of conspiracy to possess with

intent to distribute, the indictment to which King pleaded guilty recited that

the conspiracy lasted from at least January of 2012 until on or about February

11, 2013, just one day before King was arrested and the handgun was found.

The factual resume signed by King again repeated these dates of involvement

in the conspiracy. Further, the PSR provides that, at the time of his second

arrest, King admitted to being involved in drug distribution.

King counters that the PSR and PSR Addendum at times imply that

King ceased his involvement in the conspiracy around July 3, 2012. He is

correct that the PSR and PSR Addendum present some ambiguities about

King’s role in the conspiracy after July of 2012. He is also correct that a DEA

agent testified at King’s detention hearing that he was unaware of King’s

involvement in the conspiracy after July of 2012. Nonetheless, the indictment

to which King pleaded guilty and the factual resume that he signed are

obviously important pieces of the record. Thus, considering the district court’s

conclusion that the § 2D1.1(b)(1) enhancement applied in light of the entire

record, we find it plausible that the government proved by a preponderance of

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the evidence that there was a temporal relation between the gun, King, and

the offense of conspiracy. 1

As to the spatial relation between the gun, King, and the offense of

conspiracy, King was arrested in the Fairlane Avenue residence where the

handgun, heroin, and drug paraphernalia were found. After the PSR

Addendum was filed, King dropped his argument that he did not reside at the

Fairlane Avenue residence. But he still maintains that the handgun could

have been his wife’s and that it was found in his wife’s nightstand. King

presented no evidence on these matters, so the district court could disregard

his unsworn assertions about them. See Huerta, 182 F.3d at 364-65.

Here, law enforcement found a handgun with an obliterated serial

number in the same room as a baggie with numerous empty clear capsules. In

the laundry room, they found 13 capsules of heroin. And, next to the backdoor,

they found a grocery bag with numerous pieces of drug paraphernalia.

Admittedly, we have held that “mere control or dominion over the place

in which contraband or an illegal item is found by itself is not enough to

establish constructive possession when there is joint occupancy of a place.”

United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993). But, here, we find

it plausible that the Government proved by a preponderance that the gun was

King’s, not just that he had mere control over his jointly-occupied residence.

While King shared the residence with his wife, there is no indication that she

1 A temporal link could also be proven if the gun was possessed close in time to “related

relevant conduct,” meaning conduct that is within a “common scheme or plan” of the offense

of conviction. United States v. Vital, 68 F.3d 114, 118-20 (5th Cir. 1995). At some points in

the PSR, the probation officer relied on King’s distribution of heroin by himself, rather than

as part of the conspiracy. The probation officer found that King’s solo distribution activities

were proven by the presence of heroin and drug paraphernalia at his residence. While a

finding of a temporal relation based on this related relevant conduct would not be clear error,

we determine that it is unnecessary to temporally link the gun possession to mere relevant

conduct because King pleaded guilty to a conspiracy that continued until February of 2013.

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was involved in any drug activity. Accordingly, the district court could

reasonably infer that the handgun with an obliterated serial number belonged

to King, the participant in the drug distribution conspiracy. The fact that the

gun was found in the same master bedroom as empty capsules and a television

monitor with four different exterior camera feeds (and in the same house as

heroin and other drug paraphernalia) also supports an inference that the

handgun was part of King’s plan for defending a location involved in a drug

conspiracy.

King counters that, prior to sentencing, he submitted a page from a

website saying that a heroin addict like himself might possess various pieces

of drug paraphernalia to facilitate personal heroin use. Even assuming that

this page from the website constituted viable rebuttal evidence, the page did

not explain that a recreational heroin user would likely possess numerous

empty clear capsules. He also did not explain the legitimate uses for a handgun

with an obliterated serial number.

On the basis of the entire record, we find it plausible that the

Government proved by a preponderance of the evidence that a spatial relation

existed between the handgun, King, and the offense of conspiracy to possess

with intent to distribute heroin. We also find it plausible that King did not

carry his burden of showing that it was “clearly improbable” that the firearm

was connected to his offense of conviction. Accordingly, we find no clear error

in the district court’s application of the § 2D1.1(b)(1) enhancement.

III.

King finally contends that declining to apply the safety valve based on a

judicially-determined fact is unconstitutional under Alleyne, 133 S. Ct. 2151. 2

2 Here, the safety valve was unavailable due to the judicially-determined fact that

King possessed a firearm in connection with his offense. See 18 U.S.C. § 3553(f)(2) (stating

that safety valve is available “if the court finds at sentencing, after the Government has been

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Alleyne held that any fact that increases a statutory mandatory minimum

sentence must be found by a jury beyond a reasonable doubt. Id. at 2160. In

contrast, the safety valve statute provides that a defendant who qualifies for

the safety valve shall be sentenced without regard to a statutory mandatory

minimum sentence. 18 U.S.C. § 3553(f). That is, the safety valve does not

increase the mandatory minimum; instead, it removes it. Accordingly, Alleyne

is not directly applicable.

Moreover, Alleyne specifies that “the Sixth Amendment applies where a

finding of fact both alters the legally prescribed range and does so in a way

that aggravates the penalty.” 133 S. Ct. at 2161 n.2. Indeed, throughout the

opinion, Alleyne emphasizes the aggravating nature of increasing a mandatory

minimum sentence. Id. at 2160-63. In contrast, the safety valve at issue here

mitigates the penalty.

The application of Alleyne to the safety valve is an issue of first

impression in this circuit, but the four other Courts of Appeals that have

considered the issue have found that Alleyne does not preclude judicial

factfinding for safety valve determinations. See United States v. Lizarraga-

Carrizales, 757 F.3d 995, 997-99 (9th Cir. 2014); United States v. Harakaly,

734 F.3d 88, 97-99 (1st Cir. 2013); United States v. Silva, 566 F. App’x 804,

807-08 (11th Cir. 2014) (unpublished); United States v. Juarez-Sanchez, 558 F.

App’x 840, 843 (10th Cir. 2014) (unpublished). We join our sister circuits and

find that it is not constitutional error for a judge to find facts that render the

safety valve inapplicable.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

afforded the opportunity to make a recommendation, that . . . the defendant did not . . .

possess a firearm or other dangerous weapon . . . in connection with the offense”).

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