The opinion
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 16, 2009
Decided June 3, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
Nos. 08‐3485 & 08‐3489 Appeals from the United States District
Court for the Western District of
UNITED STATES OF AMERICA, Wisconsin
Plaintiff‐Appellee,
No. 08 CR 49
v.
Barbara B. Crabb, Chief Judge.
HOLLY KING AND BRIAN
UNDERWOOD,
Defendants‐Appellants.
O R D E R
Holly King and Brian Underwood pleaded guilty to conspiring to possess
pseudoephedrine with the intent to manufacture methamphetamine. The district court
sentenced King and Underwood to 60 months’ and 120 months’ imprisonment, respectively.
The defendants appeal their sentences, and we affirm.
Nos. 08‐3485 & 08‐3489 Page 2
I.
Holly King and Brian Underwood lived in a house with their three‐year‐old son and
King’s nine‐year‐old son. On February 15, 2008, law enforcement officials received an
anonymous tip that methamphetamine was being manufactured in an unattached garage
next to their house. Police officers checked out the premises and smelled a strong odor
emanating from the garage. Later that day, an anonymous neighbor informed police that he
believed the garage contained a methamphetamine laboratory. The neighbor told police he
had observed hoses and tubes in the garage and a strong odor from the garage had burned
his nose. The tipster also told officers that Underwood had yelled at him for entering the
garage and had threatened him with a .45 caliber pistol.
After obtaining a search warrant, police officers searched the garage and house while
King and her children were at home. Police discovered various equipment used to make
methamphetamine in the garage. Inside the home, the officers found a loaded .45 caliber
pistol in a holster hanging from a light fixture at the top of the basement stairs. Police also
found methamphetamine and marijuana in the master bedroom. After the search, King told
the officers she was addicted to methamphetamine, knew Underwood had been making
methamphetamine in the garage for the past year, and had purchased Sudafed and other
ingredients used in the manufacturing process for him. King also stated she knew about the
.45 caliber firearm but had not seen it lately.
About the same time as the search, police stopped Underwood in his automobile.
Underwood confessed he was manufacturing methamphetamine in the garage, though only
for personal consumption—not distribution. Underwood also admitted he owned the .45
caliber pistol but denied threatening a neighbor with it. He told police the gun was in the
stairwell.
King and Underwood were indicted for and pleaded guilty to conspiring to possess
pseudoephedrine with the intent to manufacture methamphetamine in violation of 21
U.S.C. §§ 841(c)(1) and 846. At sentencing, the district court found that both defendants
qualified for a two‐level enhancement under U.S.S.G. § 2D1.11(b)(1) for possession of a
dangerous weapon in connection with the conspiracy. King and Underwood objected to
that enhancement, and the government objected to the application of that enhancement to
King.
After reducing Underwood’s Guidelines range by three levels for acceptance of
responsibility, the court imposed a 120‐month sentence, which was in the middle of the
Nos. 08‐3485 & 08‐3489 Page 3
advisory Guidelines range. For King, the district court reduced her Guidelines range by
three levels for acceptance of responsibility and by two levels for being a minor participant
in the conspiracy and imposed a below‐Guidelines range sentence of 60 months. The
defendants appeal their sentences.
II.
King and Underwood both argue that the district court erred in applying the two‐
level enhancement for possession of a dangerous weapon under U.S.S.G. § 2D1.11(b)(1). We
review a district court’s application of an enhancement for possession of a dangerous
weapon for clear error. United States v. Idowu, 520 F.3d 790, 793 (7th Cir. 2008).
Section 2D1.11(b)(1) of the Guidelines provides: “If a dangerous weapon (including
a firearm) was possessed, increase by 2 levels.” Application Note 1 to § 2D1.11 states that
“[t]he adjustment in subsection (b)(1) should be applied if the weapon was present, unless it
is improbable that the weapon was connected with the offense.” This means that the
government must prove by a preponderance of the evidence that the defendant possessed
the weapon, after which the burden shifts to the defendant to show it was improbable the
weapon was connected to the underlying offense. See id.
Underwood points to Application Note 3 to § 2D1.1 to support his claim that the
enhancement under § 2D1.11(b)(1) only applies to drug traffickers—not persons, like
Underwood, who possessed precursor ingredients with the intent to manufacture
methamphetamine for only their personal use. That note provides, in part, that “[t]he
enhancement for weapon possession reflects the increased danger of violence when drug
traffickers possess weapons.” U.S.S.G. § 2D1.1 app. n.3. Underwood’s argument is a non‐
starter because the district court enhanced his sentence under § 2D1.11, not § 2D1.1.
Moreover, the application notes for § 2D1.11 do not contain any provision similar to the part
of Application Note 3 to § 2D1.1 on which Underwood relies. Therefore, because the
application of 2D1.11(b)(1) is not limited to drug traffickers, the district court did not clearly
err in enhancing Underwood’s Guidelines range under that section.1
1
The government proved Underwood’s possession of the .45 caliber firearm by a
preponderance of the evidence, and Underwood did not show it was improbable the gun
was connected to the conspiracy.
Nos. 08‐3485 & 08‐3489 Page 4
King argues that the district court erred in finding she, too, possessed the .45 caliber
gun and enhancing her sentence under § 2D1.11(b)(1). “We have defined ‘possession’ to
include firearms possessed by coconspirators in furtherance of the conspiracy that the
defendant could have reasonably foreseen.” United States v. Strode, 552 F.3d 630, 635 (7th
Cir. 2009) (citing United States v. Acosta, 534 F.3d 574, 588 (7th Cir. 2008)). King relies on
United States v. Vold, 66 F.3d 915 (7th Cir. 1995), to argue that she could not have reasonably
foreseen Underwood’s possession of the .45 caliber pistol in furtherance of their conspiracy.
In Vold, the district court enhanced a defendant’s Guidelines range for possession of a
firearm, concluding that his coconspirator’s possession of the weapon was reasonably
foreseeable to him based on the coconspirator’s use of the weapon and the fact that
weapons are commonly used in drug manufacturing conspiracies. 66 F.3d at 920. We
vacated Vold’s sentence because the government did not present any evidence he knew
about his coconspirator’s firearm, nor was the risk inherent in a drug manufacturing
conspiracy sufficient to establish the reasonable foreseeability of the coconspirator’s
possession. Id. at 921.
Unlike the defendant in Vold, King admitted she knew her co‐conspirator
Underwood owned a .45 caliber pistol. She also said she knew about the illegal
methamphetamine lab in the garage. In addition, the gun was found hanging from a light
fixture at the top of the basement stairwell, from where it was accessible to defend the
methamphetamine operations in the garage. In light of these undisputed facts, the district
court did not clearly err in concluding that Underwood’s possession of the gun in
connection with their conspiracy was reasonably foreseeable to King.
Underwood next claims the district court’s enhancement for possession of a
dangerous weapon cannot stand in light of the Supreme Court’s holding in District of
Columbia v. Heller, 128 S. Ct. 2783 (2008), that the Second Amendment secures an
individual’s right to have handguns in the home for self‐protection. Because Underwood
forfeited this objection by failing to raise it in the district court, our review is for plain error.
United States v. Panaigua‐Verdugo, 537 F.3d 722, 725 (7th Cir. 2008). Under that standard,
Underwood must show there was 1) an error 2) that was plain 3) that affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). If these three conditions
are met, we may exercise our discretion to rectify the error only if it “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation
marks and citation omitted).
Underwood’s Heller argument is a variant of an argument we rejected in United
States v. Jackson, 555 F.3d 635 (2009). In Jackson, the defendant, relying on Heller, attempted
Nos. 08‐3485 & 08‐3489 Page 5
to withdraw his guilty plea for possessing a firearm in furtherance of a drug‐trafficking
offense by claiming that he actually possessed the gun for self‐protection. 555 F.3d at 636.
We observed that Heller held that citizens have a right to keep and bear arms for “lawful self‐
protection, not for all self‐protection,” and stated that “[t]he Constitution does not give
anyone the right to be armed while committing a felony, or even to have guns in the next
room for emergency use should suppliers, customers, or the police threaten a dealer’s
stash.” Id. Therefore, because “there is no constitutional problem with separating guns
from drugs,” id., the district court’s enhancement of Underwood’s Guidelines range for
possession of a dangerous weapon was not erroneous as long as there was some link
between the conspiracy and the weapon. The district court did not err in finding that
connection based on the neighbor’s report that Underwood had threatened him with a .45
caliber firearm when Underwood caught him snooping around the garage. In addition,
police found a .45 caliber gun hanging at the top of a stairwell inside the house where it was
readily accessible for protecting the methamphetamine lab in the garage.
Underwood also argues that, by sentencing him to a term of imprisonment that fell
in the middle of the advisory Guidelines range, the district court treated that range as
mandatory. We review this threshold procedural issue de novo. United States v. Carter, 530
F.3d 565, 577 (7th Cir. 2008). There is no merit to Underwood’s argument. The district court
acknowledged Underwood’s Guidelines range was advisory and considered the § 3553(a)
factors in determining his sentence. Moreover, the court allowed Underwood to argue the §
3553(a) factors and why a sentence below the Guidelines range was warranted. Thus, it is
clear that the district court did not treat the Guidelines range as mandatory, nor did it
commit any other procedural error.
Underwood also claims that a lower sentence was warranted under a proper
evaluation of the § 3553(a) factors, which is a challenge to the substantive reasonableness of
his sentence. We review the substantive reasonableness of a sentence under the abuse of
discretion standard. United States v. Omole, 523 F.3d 691, 698 (7th Cir. 2008) (citing Gall v.
United States, 128 S. Ct. 586, 597 (2007)). A sentence that falls within a correctly calculated
Guidelines range is presumed reasonable. United States v. Johnson, 534 F.3d 690, 696 (7th
Cir. 2008) (citing Rita v. United States, 127 S. Ct. 2456, 2462 (2007)). A defendant may rebut
this presumption by showing his sentence is unreasonable in light of the § 3553(a) factors.
Id. There is no question that the district court meaningfully considered the § 3553(a) factors,
including the nature of the offense and Underwood’s history and characteristics.
Underwood argues that the fact King, who had a similar criminal background, received a
lesser sentence for the same conduct indicates his sentence was unreasonable. However, a
discrepancy between coconspirators’ sentences is not a valid basis for challenging a
Nos. 08‐3485 & 08‐3489 Page 6
sentence. Omole, 523 F.3d at 700. Only if a defendant’s sentence diverges from all similar
sentences imposed nationwide will the court disturb the sentence. Id. Underwood has not
made that showing. Moreover, the district court’s determination that King was a minor
participant in the conspiracy accounts for the disparity in the defendants’ sentences.
Because Underwood has not rebutted the presumptive reasonableness of his sentence, we
find no abuse of discretion by the district court.
III.
The district court did not clearly err in enhancing the defendants’ Guidelines ranges
under § 2D1.11(b)(1). In addition, the district court did not commit plain error in applying
that enhancement to Underwood’s range in light of Heller. Lastly, the district court did not
treat Underwood’s Guidelines range as mandatory in deciding the length of his sentence,
and Underwood has not rebutted the presumptive reasonableness of that within‐Guidelines
sentence. For these and the foregoing reasons, we AFFIRM.