U.S. v. Sullivan

Full title: UNITED STATES OF AMERICA, Plaintiff, v. CLARENCE E. SULLIVAN, Defendant

Court: United States District Court, D. Kansas

Date published: Apr 16, 2004

Case No. 03-40062-01-RDR (D. Kan. Apr. 16, 2004)

Opinion

Case No. 03-40062-01-RDR.

April 16, 2004

MEMORANDUM AND ORDER

RICHARD ROGERS, Senior District Judge

On April 13, 2004 the court sentenced the defendant. The purpose of this memorandum and order is to memorialize and elaborate on the rulings made by the court during the sentencing hearing.

The defendant entered a plea of guilty to felon in possession of a firearm in violation of 18 U.S.C. § 922(g). As part of the plea agreement, the government agreed to dismiss several drug trafficking charges.

The defendant raised three objections to the presentence report. The first two objections concerned factual disputes in the report. The last objection raised an argument concerning the application of U.S.S.G. § 2K2.1(c).

DEFENDANT'S OBJECTIONS

The defendant objects to paragraph 15 of the presentence report and denies that he approached anyone with a handgun on March 15, 2002. The court finds no reason to rule on this objection because the matter will not affect sentencing. Fed.R.Crim.P. 32(i)(3)(B).

The defendant next objects to paragraph 18 where it is indicated that "audio and video surveillance" of a drug deal was maintained. The defendant asserts that no audio or video surveillance was conducted. Again, the court finds it unnecessary to rule on this objection because it will not affect sentencing. Fed.R.Crim.P. 32(i)(3)(B).

Finally, the defendant objects to the use of U.S.S.G. § 2K2.1(c) in calculating the applicable guidelines. The defendant argues that U.S.S.G. § 2K2.1(a)(2) should be applied. The defendant has also argued that the government's action in this case unlawfully manipulated his sentence. The government and probation believe that U.S.S.G. § 2K2.1(c), with its cross-reference to U.S.S.G. § 2X1.1, is the appropriate guideline to be applied here.

The court heard evidence on this issue. Based upon the evidence presented, the court makes the following findings of fact and conclusions of law.

Findings of Fact

1. In 2002 Bruce Stukey, a special agent with the Bureau of Alcohol, Tobacco and Firearms, came into contact with a female facing potential criminal charges. She agreed to become a confidential informant (CI). She understood that she might receive some financial benefits and that she might receive some reduction in the potential charges that might be lodged against her.

2. Agent Stukey was the coordinator of a task force in Topeka dealing with violent crime. Prior to his position on the task force, he had worked as a special agent investigating firearms and drugs.

3. In January 2003, the CI told Agent Stukey that she knew an individual nicknamed "Silk" who was trafficking in firearms and drugs. Agent Stukey subsequently learned that "Silk" was a nickname for the defendant. He also learned that the defendant had a criminal history and could not therefore possess a firearm.

4. Agent Stukey told the CI to arrange a transaction where the defendant would sell drugs and a firearm.

5. On January 14, 2003 the CI called the defendant and told him that she wanted a "ball and a strap." The term "ball" meant 1/8 oz. of drugs while the term "strap" meant a firearm.

6. On January 15, 2003 the CI called the defendant to arrange the transaction. They met an hour later at the Ramada Inn Hotel in Topeka, Kansas. Agent Stukey drove the CI to the hotel while the defendant arrived alone. The CI exited the car driven by Agent Stukey and entered the defendant's car. This encounter and the CI's subsequent meeting with the defendant on January 15^th were tape recorded. The defendant immediately wanted to know if the individual in the other car was "cool." He wanted to know if he might be with law enforcement. The CI said that he was "cool" and that he was one of her tricks. The CI indicated that the drugs and the firearm were for her trick. The defendant brought two packages of crack cocaine to the meeting, a 1/8 oz. package and a 1/4 oz. package. He misunderstood that the CI wanted a firearm. The CI reminded him that she wanted a firearm, not the 1/4 oz. of crack cocaine. The defendant indicated that he would go get one. She told the defendant, after he offered to buy the 1/8 oz. package for her, that she "wanted him [referring to Agent Stukey] to pay for it all at one time." The defendant told her that he needed to drop off the 1/4 oz. package of crack cocaine before he got the gun because he could not swallow all of the crack cocaine if he were stopped by law enforcement. The defendant then left the area.

7. The defendant returned in a short time. This time he was a passenger in car driven by Tonya White. He telephoned the CI and told her to follow them. Agent Stukey and the CI followed the car in which the defendant was a passenger to another area in Topeka. The defendant exited the car and returned shortly. The CI exited Agent Stukey's vehicle and got into the other car. The defendant showed the CI a 9 mm Ruger handgun. He explained that this firearm would be more expensive than the one he had originally discussed with her. He showed her how to load and operate the gun. She asked if she could take it to Agent Stukey so he could examine it. The defendant approved and she returned to Agent Stukey's car with the handgun. He authorized its purchase and provided her with money. Agent Stukey asked the CI if she had the drugs. She said she had not received the crack cocaine yet. She left the handgun in Agent Stukey's car and returned to the defendant's car. She provided the defendant with $425, $300 for the firearm and $125 for the crack cocaine. The defendant gave her the 1/8 oz. package of crack cocaine. The crack cocaine was packaged for resale. A larger plastic bag contained several small individual plastic bags with small rocks of crack cocaine.

Conclusions of Law

1. Before reaching a determination of the defendant's argument concerning § 2K2.1, the court shall first turn to the defendant's contention that the government unlawfully manipulated his sentence. He contends that the government sought a gun from him in order to entrap him into an increased sentence.

2. Sentence entrapment or sentence manipulation claims are only entertained when there is the probability that the government acted in an outrageous manner. United States v. Lacey, 86 F.3d 956, 963 (10^th Cir.), cert. denied, 519 U.S. 944 (1996). The defendant has the burden of showing that the government's investigation was conducted in a manner "so shocking, outrageous and intolerable that it offends 'the universal sense of justice.'" Id. (quoting United States v. Russell, 411 U.S. 423, 432 (1973)). The court finds no outrageous conduct by the government in this case. Agent Stukey received information from a CI that the defendant was selling drugs and guns. In his dealings with the CI, he merely asked her to obtain both. The evidence certainly demonstrates that the defendant was readily predisposed to sell both drugs and firearms. Although he appeared at the initial meeting with the CI with only drugs, he did so based upon a misunderstanding and was extremely willing to provide a firearm when requested. Accordingly, we find no merit to this argument.

3. A conviction under § 922(g) requires the court to turn initially to U.S.S.G. § 2K2.1. Section 2K2.1 is separated into three subsections: subsection (a) assigns the base offense level for the firearms offense; subsection (b) lists specific offense characteristics that, if present, may increase or decrease the base offense level calculated under subsection (a); and subsection (c) is a "cross-reference" provision that provides an alternative to subsections (a) and (b) by assigning a potentially higher base offense level when the defendant uses or possesses a firearm in connection with the commission or attempted commission of another crime. See United States v. O'Flanagan, 339 F.3d 1229, 1231 (10^th Cir. 2003).

4. The defendant contends that § 2K2.1(a) should be applied, while the government argues that § 2K2.1(c) is the appropriate starting point. The court shall first consider the application of § 2K2.1(c). Section § 2K2.1(c) provides as follows:

(1) If the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense, apply —

(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above; or

(B) if death resulted, the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above.

U.S.S.G. § 2K2.1(c).

5. As noted above, if § 2K2.1(c)(1) applies, then the court must apply § 2X1.1. Section 2X1.1 in turn provides that the base offense level be determined by reference to the "base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty." U.S.S.G. § 2X1.1(a). Here, the defendant's base offense level would be determined under § 2D1.1, the guideline for drug trafficking.

6. The key issue before the court is whether the firearm was used or possessed "in connection with" the commission or attempted commission of another offense. The defendant contends that the firearm was not possessed for the purpose of facilitating the sale of the drugs. He asserts that the firearm was employed "for only one purpose, that is to sell it in exchange for United States currency." The government contends that the firearm was clearly possessed in connection with the drug trafficking crime because they were sold together.

The phrase "in connection with" for purposes of § 2K2.1(c) is not defined by the Guidelines. Moreover, the Tenth Circuit has not provided any guidance for this phrase in this particular guideline. The court has, however, defined the "in connection with" requirement set forth in § 2K2.1(b)(5).¹ There, the court has determined the definition of "in connection with" by analogizing to the definition of "in relation to" in 18 U.S.C. § 924(c).² United States v. Gomez-Arrellano, 5 F.3d 464, 466-67 (10^th Cir. 1993). The Tenth Circuit, relying on the Supreme Court's decision in Smith v. United States, 508 U.S. 223 (1993) concerning the interpretation of § 924(c), has held that the "in connection with" requirement of § 2K2.1(b)(5) means that "the weapon facilitates or has the potential to facilitate the . . . offense, but is not satisfied if the weapon's possession is coincidental or entirely unrelated to the offense."Id. Without any other guidance from the Tenth Circuit on the "in connection with" requirement of § 2K2.1(c), the court shall interpret this language in accord with the identical language of § 2K2.1(b)(5). See United States v. Nale, 101 F.3d 1000, 1003 (4^th Cir. 1996) (relying on cases interpreting § 2K2.1(b)(5) to aid in interpreting § 2K2.1(c)'s "in connection with" language). The court does note, however, that at least the Fifth Circuit has suggested that the language of § 2K2.1(c)(1) requires a stricter approach than § 2K2.1(b)(5). United States v. Mitchell, 166 F.3d 748, 755-56 (5^th Cir. 1999) (§ 2K2.1(c)(1) requirement that the firearm possession be in connection with the commission of another offense mandates a closer relationship between the firearm and the other offense than that required for § 2K2.1(b)(5)).

1 U.S.S.G. § 2K2.1(b)(5) provides as follows:

If the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by 4 levels.

2 Section 924(c) prohibits the use of a firearm during and in relation to the commission of a drug trafficking crime.

7. The court finds that, under either the approach adopted under § 2K2.1(b)(5) or the interpretation of the Fifth Circuit, the government has demonstrated by a preponderance of the evidence that § 2K2.1(c) should be applied here. The court believes that the facts support the conclusion that the defendant provided the firearm in order to facilitate the drug sale. The CI made it clear to the defendant that the firearm was needed in order to complete the sale. In addition, the defendant certainly provided the gun in an attempt to accommodate the buyer and maintain future business. See United States v. Thompson, 32 F.3d 1, 8 (1^st Cir. 1994). Finally, the court believes that the facts show that the defendant provided the firearm to the buyer, Agent Stukey, with the understanding that the firearm would be used in the future to protect and assist future drug transactions. The defendant understood that he was providing crack cocaine to the buyer who could then distribute it. The crack cocaine was packaged in a manner that would allow for easy resale. As part of this transaction, the buyer also requested a gun. Given the usual relationship between guns and drugs, we believe these facts support the conclusion that the defendant understood that the buyer might subsequently use the gun to assist him in further drug transactions. Accordingly, the court shall deny the defendant's objection.

8. With the denial of the aforementioned objections, the court sentenced the defendant to a term of imprisonment of 120 months and a term of supervised release of three years.

IT IS SO ORDERED.