United States v. Kevin Baptiste

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

JUNE 9, 2009

No. 07-15297 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 06-60350-CR-JIC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEVIN BAPTISTE,

a.k.a. "Kelvin",

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(June 9, 2009)

Before WILSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:

Kevin Baptiste (“Baptiste”) appeals his 160-month sentence after pleading

guilty to drug-trafficking offenses. On appeal, he challenges the district court’s

application of a two-level enhancement for possession of a firearm under U.S.S.G.

§ 2D1.1(b)(1) and its failure to award him a minor-role reduction under U.S.S.G.

§ 3B1.2(b). For the reasons set forth below, we affirm.

I.

A federal grand jury returned an indictment against Baptiste and several

codefendants – including his brother, Gary Baptiste (“Gary”) – charging Baptiste

with: conspiracy to possess with intent to distribute 5 kilograms or more of

cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A) (Count 1); and

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) (Count 26).

The government prepared a factual statement in support of Baptiste’s

anticipated guilty plea, which provided in pertinent part:

During the time period charged in the indictment, Defendant Kevin

Baptiste assisted his brother and co-defendant Gary Baptiste in the

distribution and possession of cocaine. Defendant Kevin Baptiste

assisted Gary in a number of ways including distributing cocaine,

collecting money for cocaine sales, storing drugs and drug proceeds in

his residence and speaking with a source of supply regarding per

kilogram price negotiations.

In November 2006, Gary traveled to Haiti for a period of several days.

While he was gone, Defendant Kevin Baptiste handled all of the

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cocaine sales and money collections on Gary Baptiste’s behalf. This

included collecting money for co-defendant Luckner Monestine for

cocaine, distributing two kilograms of cocaine to him on November 4,

2006, and contacting the supplier of this cocaine to arrange for a price

reduction when it was determined that a portion of the cocaine was

wet. Kevin Baptiste also distributed cocaine to other persons during

Gary’s absence.

On December 12, 2006, officers executed a search warrant at the

residence of Kevin Baptiste. In Defendant Kevin Baptiste’s bedroom,

officers located $57,505, a Smith and Wesson handgun and a shotgun.

At the plea hearing, Baptiste, through counsel, admitted the facts contained in the

proffer, including the fact that the guns and money were found in his bedroom.

Baptiste thereafter pled guilty to both Counts 1 and 26.

The probation officer prepared a pre-sentence investigation report (“PSI”)

and calculated Baptiste’s applicable guideline range as follows. The probation

officer determined that Baptiste was responsible for at least 50, but less than 150,

kilograms of cocaine, giving him a base offense level of 36. The probation officer

applied a two-level enhancement for possession of a firearm, pursuant to U.S.S.G.

§ 2D1.1(b)(1). She also applied a three-level reduction for acceptance of

responsibility based on a written statement made by Baptiste, which read in part:

I admit that I assisted my brother, Gary Baptiste with the activities of

distributing cocaine. When Gary was out of town, he would have me

distribute the cocaine and collect monies on his behalf. My mom’s

house was used as the location where the cocaine would be picked up

and where monies from drug sales would be collected. I further admit

and acknowledge that I negotiated a price reduction [for] some wet

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cocaine that was previously sold on behalf of my brother, Gary

Baptiste.

In this respect, the PSI reported that Baptiste resided at his mother’s house and that

172.8 grams of cocaine and 17.4 grams of marijuana were discovered there during

the execution of the search warrant. The probation officer also noted that no role

reduction was warranted because, although Gary and several other co-conspirators

were “large quantity narcotics” suppliers or distributors, Baptiste “worked at the

direction of his brother Gary Baptiste as a narcotics supplier.” The probation

officer ultimately determined that Baptiste had a criminal history category of IV

which, when coupled with his total offense level of 35, produced an applicable

guideline range of 235 to 293 months’ imprisonment.

Baptiste raised three objections to the PSI. First, he argued, without

explanation, that he was responsible for 5 kilograms or less of cocaine. The

government responded that the evidence at Gary’s trial demonstrated that Gary

participated in telephone calls related to 92.5 kilograms of cocaine and, because

Baptiste acted as Gary’s assistant, he should be held responsible for this drug

quantity as well. Second, Baptiste objected to the firearm enhancement on the

ground that the firearms did not belong to him. The government responded, and

the probation officer agreed, that the enhancement was appropriate because,

regardless of whether the firearms “belonged” to Baptiste, they were discovered

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“in close proximity to several thousand dollars and [were] located within Kevin’s

bedroom and at the residence where the defendants stored the cocaine . . . and

conducted their drug transactions.” Finally, Baptiste argued that he should have

received a minor-role reduction under U.S.S.G. § 3B1.2(b). The government and

the probation officer responded that such a reduction was inappropriate because

Baptiste assisted his brother in the sale and storage of multiple kilograms of

cocaine.

At sentencing, the government clarified that the evidence at Gary’s trial

demonstrated that Gary was directly responsible for 92.5 kilograms of cocaine, but

Baptiste personally handled only 14.625 kilograms of that amount. Although the

government argued that Baptiste should be held accountable for all 92.5 kilograms,

it pointed out that, if the court found Baptiste accountable only for the 14.625

kilograms, then this would undermine his minor-role objection because the court

had to measure Baptiste’s role against the conduct for which he was held

accountable. In addressing the drug quantity issue, defense counsel acknowledged

that Baptiste handled cocaine distribution for Gary while he was out of town, but

he emphasized that Baptiste could not do anything without first calling Gary and

getting his permission. With respect to the firearm enhancement, defense counsel

reiterated that the firearms did not belong to Baptiste, and he also asserted that the

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firearms were found in a guest room, not Baptiste’s bedroom, to which the

government responded by pointing to the factual proffer supporting the guilty plea.

The court ultimately sustained Baptiste’s drug-quantity objection in part,

finding that he was accountable only for the 14.625 kilograms of cocaine with

which he was directly involved, thereby reducing his base offense level from 36 to

32. The court, however, upheld the firearm enhancement, finding that “the two

firearms were found in the defendant’s bedroom where the defendant stored both

cocaine and drug proceeds.” In addition, the court found that Baptiste failed to

meet his burden with respect to a minor-role reduction. In light of the above

rulings, the court determined that Baptiste had an applicable guideline range of 151

to 188 months’ imprisonment and, after hearing argument from the parties,

sentenced Baptiste to 160 months’ imprisonment on both counts, to run

concurrently.

II.

“The Court reviews the district court’s findings of fact for clear error and its

application of the sentencing guidelines to those facts de novo.” United States v.

Anton, 546 F.3d 1355, 1359 (11th Cir. 2008), cert. denied, (U.S. Apr. 20, 2009)

(No. 08-1183). “For sentencing purposes, possession of a firearm involves a

factual finding, which we review for clear error.” United States v. Stallings, 463

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F.3d 1218, 1220 (11th Cir. 2006). We also review for clear error the district

court’s determination of a defendant’s role in an offense. United States v.

DeVaron, 175 F.3d 930, 937-38 (11th Cir. 1999) (en banc).

A. Firearm Enhancement

The Sentencing Guidelines provide for a two-level enhancement to a

defendant’s offense level “[i]f a dangerous weapon (including a firearm) was

possessed” during a drug-trafficking offense. U.S.S.G. § 2D1.1(b)(1). The

Guidelines instruct the district court to apply this enhancement “if the weapon was

present, unless it is clearly improbable that the weapon was connected with the

offense.” U.S.S.G. § 2D1.1, comment. (n.3). As a result, we have held that the

government has the initial burden to show by a preponderance of the evidence that

the firearm was present at the site of the charged conduct. United States v. Hall, 46

F.3d 62, 63-64 (11th Cir. 1995) (concluding that “presence of the weapon is all the

Government need show”). “If the government is successful in meeting this initial

burden, then the evidentiary burden shifts to the defendant, who must demonstrate

that a connection between the weapon and the offense was clearly improbable.”

Stallings, 463 F.3d at 1220 (quotation omitted).

In this case, the government met its burden to show that the firearms were

present at the site of the charged conduct. This is so because the firearms were

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found in the same house where Baptiste engaged in acts in furtherance of the

drug-trafficking conspiracy. See United States v. Cooper, 111 F.3d 845, 847 (11th

Cir. 1997) (stating that firearms are “present” for purposes of § 2D1.1(b)(1) when

they are “found where acts in furtherance of the conspiracy [take] place”); United

States v. Hansley, 54 F.3d 709, 716 (11th Cir. 1995) (upholding the enhancement

where the firearm was discovered in a house where the defendant “engaged in

conspiratorial conversations”). Thus, Baptiste’s assertion that the firearms did not

belong to him is irrelevant to the analysis, and, in any event, it is undermined by

his admission at the plea hearing that the firearms were found in his bedroom.

Thus, the burden shifts to Baptiste to demonstrate that a connection between

the firearms and the conspiracy was clearly improbable. Stallings, 463 F.3d

at 1220. He has failed to meet this burden because the factual proffer upon which

his guilty plea was based established that the two firearms were found alongside

$57,505 in cash and in the house out of which the drug conspiracy operated.

Under the circumstances, the fact that there were no drugs found in the bedroom

does not establish that a connection between the firearms and the drug conspiracy

was clearly improbable. Indeed, the PSI reported that 172.8 grams of cocaine were

found elsewhere in the house, and Baptiste does not dispute that the cash in his

bedroom represented drug proceeds. Accordingly, we affirm the enhancement.

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B. Minor-Role Reduction

Under the Guidelines, a defendant may receive a two- to four-level reduction

where his role in the offense can be described as minor, minimal, or somewhere in

between.1 U.S.S.G. § 3B1.2. The proponent of the downward adjustment bears

the burden of establishing his role in the offense by a preponderance of the

evidence. DeVaron, 175 F.3d at 934, 939, 946.

“[T]he district court must assess whether the defendant is a minor or

minimal participant in relation to the relevant conduct attributed to the defendant in

calculating [his] base offense level.” Id. at 941; accord United States v. Ryan, 289

F.3d 1339, 1349 (11th Cir. 2002) (measuring the defendant’s role in relation to the

conduct used to calculate his base offense level). “Otherwise, a defendant could

argue that [his] relevant conduct was narrow for the purpose of calculating [his]

base offense level, but was broad for determining [his] role in the offense. A

defendant cannot have it both ways.” DeVaron, 175 F.3d at 941. In other words,

“[o]nly if the defendant can establish that [he] played a relatively minor role in the

conduct for which [he] has already been held accountable – not a minor role in any

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A minor participant is entitled to a two-level reduction and is someone who is “less

culpable than most other participants, but whose role could not be described as minimal.” U.S.S.G.

§ 3B1.2(b), comment. (n.5). A minimal participant is entitled to a four-level reduction and is

someone who is “plainly among the least culpable of those involved in the conduct of a group.”

U.S.S.G § 3B1.2(a), comment. (n.4). Defendants who are more than a minimal participant but less

than a minor participant qualify for a three-level reduction. U.S.S.G. § 3B1.2.

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larger criminal conspiracy – should the district court grant a downward adjustment

for minor role in the offense.” Id. at 944.

In this case, the district court held Baptiste accountable for 14.625 kilograms

of cocaine at sentencing. Significantly, this drug quantity represented the amount

of cocaine with which Baptiste was directly involved, and it did not include the all

of the 92.5 kilograms of cocaine attributed to his brother Gary or the cocaine

attributed to other members of the conspiracy. This fact is fatal to Baptiste’s

argument because he cannot show that he was a minor participant with respect to

the drug-trafficking activities with which he was directly and personally involved.

See United States v. Boyd, 291 F.3d 1274, 1276-78 (11th Cir. 2002) (upholding

the district court’s determination that “it would be a rare case indeed to find a

defendant to be a minor participant in his own conduct if that’s the only conduct he

is being held accountable for”). In this respect, Baptiste admittedly distributed

cocaine, collected money for cocaine sales, stored drugs and drug proceeds, and

negotiated prices with suppliers. Moreover, Baptiste was held accountable for

nearly 15 kilograms of cocaine, a fairly substantial amount, which also counsels

against awarding him a minor-role reduction. See DeVaron, 175 F.3d at 943

(noting that the amount of drugs at issue is a material, and sometimes dispositive,

factor in assessing the defendant’s role).

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Baptiste counters that he was a minor participant as compared to Gary and

the other members of the conspiracy. With respect to Gary, defense counsel

emphasized at sentencing that Baptiste took no action without first getting approval

from Gary. However, this point highlights the undisputed fact that Baptiste

personally handled all of the cocaine transactions while Gary was out of town. In

light of Baptiste’s direct involvement – and even if he was arguably less culpable

than Gary in relation to this relevant conduct – it cannot be said that Baptiste was a

minor participant. See id. at 944 (“The fact that a defendant’s role may be less

than that of other participants engaged in the relevant conduct may not be

dispositive of role in the offense, since it is possible that none are minor or

minimal participants.”).

With respect to the other co-conspirators, the PSI indicates that several were

“large quantity narcotics” suppliers or distributors, but there is nothing in the

record establishing that these individuals were involved in the relevant conduct for

which Baptiste was held accountable. See id. (“[T]he district court may consider

only those participants who were involved in the relevant conduct attributed to the

defendant.”). Thus, Baptiste has not shown that the court clearly erred by refusing

to award him a minor-role reduction.

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III.

In sum, we conclude that the district court did not clearly err by applying the

two-level firearm enhancement or declining to award Baptiste a minor-role

reduction. Accordingly, we affirm.

AFFIRMED.

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