The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Webb v. United States Nos. 01-5682/5683
ELECTRONIC CITATION: 2003 FED App. 0228P (6th Cir.)
File Name: 03a0228p.06 Canale, ASSISTANT UNITED STATES ATTORNEY,
Memphis, Tennessee, for Appellee.
UNITED STATES COURT OF APPEALS
_________________
FOR THE SIXTH CIRCUIT
_________________ OPINION
_________________
UNITED STATES OF AMERICA , X RONALD LEE GILMAN, Circuit Judge. Bobby Webb
Plaintiff-Appellee, - and his son, Preston Webb, pled guilty to both conspiring to
- possess and with actually possessing Dilaudid tablets, each
- Nos. 01-5682/5683 with the intent to distribute, in violation of 21 U.S.C. §§ 846
v. -
> and 841(a)(1). On appeal, the Webbs argue that the district
, court improperly (1) enhanced their offense levels for
BOBBY WEBB (01-5682) and - possession of a firearm under United States Sentencing
PRESTON WEBB (01-5683), - Guidelines § 2D1.1(b)(1); (2) denied them a reduction for
Defendants-Appellants. N acceptance of responsibility under Sentencing Guidelines
§ 3E1.1; and (3) considered the full weight of the tablets in
Appeal from the United States District Court computing their offense levels. In addition, Preston Webb
for the Western District of Tennessee at Memphis. argues that the district court improperly enhanced his offense
No. 00-20130—Jon Phipps McCalla, District Judge. level for being a manager of the conspiracy. For the reasons
set forth below, we AFFIRM the judgments of the district
Submitted: June 20, 2003 court.
I. BACKGROUND
Decided and Filed: July 11, 2003
A. Factual background
Before: BOGGS and GILMAN, Circuit Judges; DOWD,
Senior District Judge.* Bobby and Preston Webb conducted a fencing operation in
Memphis, Tennessee by paying for stolen merchandise with
_________________ Dilaudid pills, a synthetic heroin. Law enforcement officers
began investigating the Webbs in February of 2000. On
COUNSEL March 29, 2000, federal search and seizure warrants were
ON BRIEF: James O. Marty, Brett B. Stein, FINLEY & served on the Webbs’ businesses and residences. At the
STEIN, Memphis, Tennessee, for Appellants. Stuart J. business address where all of the undercover purchases of
Dilaudid had been made, the officers recovered stolen
merchandise, Dilaudid tablets, a Smith & Wesson .38-caliber
revolver, and a disassembled 9mm submachine gun.
*
The Honorable David D. Dowd, Jr., Senior United States District
Judge for the Northern District of Ohio, sitting by designation.
1
Nos. 01-5682/5683 Webb v. United States 3 4 Webb v. United States Nos. 01-5682/5683
The officers also interviewed Preston Webb at the time of facts were undisputed), this court has held that our standard
the search. He admitted that he and his father, Bobby, had of review of a district court’s application of provisions of the
been dealing in Dilaudid for approximately three months. Sentencing Guidelines to the facts should be treated
Bobby Webb also spoke to the officers on the day of the deferentially and should not be disturbed unless clearly
search. Later that spring, local law enforcement officers erroneous. United States v. Jackson-Randolph, 282 F.3d 369,
received information that the Webbs were still dealing drugs. 389-90 (6th Cir. 2002) (holding that the Supreme Court’s
On June 15, 2000, the Webbs were arrested and a second reasoning in Buford leads to the use of a deferential standard
search took place at their business. More Dilaudid tablets of review in the application of the Sentencing Guidelines
were seized at that time. under circumstances involving fact-bound determinations).
B. Procedural background B. The district court did not err in enhancing the
defendants’ offense levels for possession of a firearm
A superseding indictment on October 24, 2000 charged the under Sentencing Guidelines § 2D1.1(b)(1)
Webbs both with conspiring to possess and with actually
possessing Dilaudid, each with the intent to distribute. On The Webbs argue that the district court erred in enhancing
February 8, 2001, both defendants pled guilty to all counts. their sentences for possession of a firearm because the
The Webbs’ sentencing hearing took place in May of 2001. government did not present evidence sufficient to establish
Although they did not object to the facts as presented in the that they were aware of the presence of the .38-caliber
Presentence Report, they filed four objections to the revolver in their store. In support of their contention, the
recommendations contained therein that mirror the arguments Webbs point to the sentencing-hearing testimony of Joyce
they make on appeal. The probation officer then filed an Webb, Bobby’s wife and Preston’s mother, to the effect that
addendum to the Presentence Report, responding to the the gun belonged to her.
Webbs’ objections. After conducting a sentencing hearing,
the district court adopted the Presentence Report as amended Under Sentencing Guidelines § 2D1.1(b)(1), the offense
and sentenced both Bobby and Preston Webb to 235 months level may be increased by two levels if a dangerous weapon
of imprisonment. This timely appeal followed. was possessed during an offense involving drugs. The
commentary provides that the enhancement “should be
II. ANALYSIS applied if the weapon was present, unless it was clearly
improbable that the weapon was connected with the offense.”
A. Standard of review U.S. Sentencing Guidelines Manual § 2D1.1, cmt. n.3 (2000).
To start with, the government must prove by a preponderance
In reviewing a district court’s application of the Sentencing of the evidence that the defendant actually or constructively
Guidelines, we “accept the findings of fact of the district court possessed the weapon and that such possession was during
unless they are clearly erroneous and . . . give due deference the commission of an offense involving drugs. United States
to the district court’s application of the guidelines to the v. Dunlap, 209 F.3d 472, 477 (6th Cir. 2000). The burden
facts.” 18 U.S.C. § 3742(e). In light of Buford v. United then shifts to the defendant to prove that any connection
States, 532 U.S. 59, 63-66 (2001) (holding that the district between the drug offense and the weapon is clearly
court was entitled to deference in its application of § 4B1.2 of improbable. Id.
the Sentencing Guidelines in a case where the underlying
Nos. 01-5682/5683 Webb v. United States 5 6 Webb v. United States Nos. 01-5682/5683
At the sentencing hearing, the district court considered position to evaluate a defendant’s acceptance of
Joyce Webb’s testimony in its entirety, but found it responsibility. For this reason, the determination of the
unconvincing. She could not identify the type of gun found sentencing judge is entitled to great deference on review.”
at the defendants’ place of business or even describe what the U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n.5 (2000).
gun looked like. Although she claimed that she kept it for
protection at her restaurant, the gun was found at the Consequently, the Webbs’ reliance on the older cases of
defendants’ adjacent business location where all of the United States v. Jeter, 191 F.3d 637 (6th Cir. 1999)
undercover drug transactions had occurred. Further, there (reviewing de novo an application of the acceptance of
was ample evidence provided by the investigating officers of responsibility adjustment to uncontested facts), and United
where the gun was located in relation to the Webbs’ drug States v. Tilford, 224 F.3d 865 (6th Cir. 2000) (same), and the
dealing. The district court found that the government had met government’s reliance on United States v. Childers, 86 F.3d
its burden and that the Webbs had not demonstrated that the 562 (6th Cir. 1996) (same), are both misplaced. The newer
gun’s connection with the offense was clearly improbable. deferential standard adopted by Buford and its progeny is now
Because they rely on essentially the same arguments and controlling.
evidence on appeal, the Webbs have not demonstrated that the
district court’s application of the enhancement was clearly In response to the defendants’ objection regarding the
erroneous. proposed denial of a reduction for acceptance of
responsibility, the probation officer filed an addendum to the
C. The district court did not err in denying the Presentence Report. Both Bobby and Preston were
defendants a reduction for acceptance of interviewed by the probation officer regarding their
responsibility under Sentencing Guidelines § 3E1.1 acceptance of responsibility. Bobby expressed remorse, but
also disagreed with the factual accuracy of his conduct as
As discussed in Part II.A. above, the Supreme Court in related in the Presentence Report. The probation officer
Buford applied a deferential standard of review to a district found that Bobby’s statements were inconsistent with his
court’s application of Sentencing Guidelines § 4B1.2 to the guilty plea and his failure to earlier object to the facts as
undisputed facts. Buford, 532 U.S. at 64-65. The Court noted presented in the Presentence Report. See U.S. Sentencing
“the fact-bound nature of the legal decision, the Guidelines Manual § 3E1.1, cmt. n.1(a) (2000) (“[A]
comparatively greater expertise of the District Court, and the defendant who falsely denies, or frivolously contests, relevant
limited value of uniform court of appeals precedent . . . .” Id. conduct that the court determines to be true has acted in a
at 66. Following the reasoning of Buford and of this court in manner inconsistent with acceptance of responsibility.”).
Jackson-Randoph, 282 F.3d at 388-90, an unreported decision
has applied the deferential standard of review to § 3E1.1. The denial of Preston’s request for an acceptance-of-
United States v. Miller, No. 01-5581, 2002 WL 1894647, *5 responsibility reduction is a closer case. Although Preston
(6th Cir. Aug. 15, 2002) (holding that the district court’s expressed greater remorse than Bobby and did not engage in
denial of a reduction for acceptance of responsibility is “a drug trafficking subsequent to his guilty plea, the probation
factual question, and should be accorded great deference and officer nevertheless recommended that the reduction be
should not be disturbed unless clearly erroneous.”). Section denied based upon Preston’s admission of continuing illegal
3E1.1's commentary further supports the use of a deferential conduct after the initial search warrants were executed in
standard of review: “The sentencing judge is in a unique March of 2000. The probation officer concluded that
Nos. 01-5682/5683 Webb v. United States 7 8 Webb v. United States Nos. 01-5682/5683
Preston’s ongoing criminal activity up to the time of his arrest E. The district court did not err in enhancing Preston
in June was inconsistent with the acceptance of responsibility. Webb’s offense level as a manager of the conspiracy
Using the appropriate standard of review, we conclude that
the district court did not err in determining that Preston’s Finally, Preston Webb argues that the district court erred in
conduct was inconsistent with the acceptance of giving him a two-level enhancement as a manager of the
responsibility. conspiracy under Sentencing Guidelines § 3B1.1(c). The
district court, however, was provided with ample evidence at
As § 3E1.1 of the Sentencing Guidelines provides, the the sentencing hearing to find that Preston held managerial
district court is to make an acceptance-of-responsibility and supervisory roles essentially equal to those of his father.
determination based upon the facts presented. The entry of a U.S. Sentencing Guidelines Manual § 3B1.1, cmt. n.4, states
guilty plea does not obligate the court to find that a reduction that “there can . . . be more than one person who qualifies as
is appropriate. Id., cmt. n.3. In this case, the district court a leader or organizer of a criminal association or conspiracy.”
adopted the Presentence Report as it had been supplemented In addition, the undisputed facts in the record show that
in response to the defendants’ objections. Based upon the Preston ran the organization together with his father and that
evidence in the record, the district court’s finding was not five or more people were involved in the conspiracy. The
clearly erroneous. district court thus did not err in finding that Preston should
receive a two-level enhancement for his managerial role in the
D. The district court did not err in calculating the weight conspiracy.
of the Dilaudid tablets for purposes of determining
the defendants’ base offense levels III. CONCLUSION
Although the Webbs argue that the conversion table in For all of the reasons set forth above, we AFFIRM the
Sentencing Guidelines § 2D1.1 is unfair and in violation of judgments of the district court.
the Fourteenth Amendment, they fail to provide any support
for their argument. In any event, the district court properly
considered the weight of the Dilaudid tablets in determining
the Webbs’ base offense level. The Sentencing Guidelines
provide that “[u]nless otherwise specified, the weight of a
controlled substance set forth in the table refers to the entire
weight of any mixture or substance containing a detectable
amount of the controlled substance.” Id., § 2D1.1(c)(A).
This court held in United States v. Landers, 39 F.3d 643, 646
(6th Cir. 1994), that the entire weight of Dilaudid tablets
should be used in calculating the base offense level. We thus
find no error by the district court in determining the Webbs’
base offense level under Sentencing Guidelines § 2D1.1.