In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-1388

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARIC R. BOTHUN,

Defendant-Appellant.

____________

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 03-CR-83-C-01—Barbara B. Crabb, Chief Judge.

____________

ARGUED FEBRUARY 16, 2005—DECIDED SEPTEMBER 15, 2005

____________

Before EASTERBROOK, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge. Aric Bothun got more than he

bargained for when he returned to the border checkpoint

near El Paso, Texas, to find out why his friend, Jacob

Johnson, had not yet passed through. When he reached the

border, he found Johnson and then some. Law enforcement

agents had stopped Johnson, who was driving Bothun’s

truck and trailer, and had found 80 grams of a mixture containing methamphetamine, some marijuana, and

$32,543 in cash. Both Johnson and Bothun were arrested.

After a grand jury indicted Bothun, he pleaded guilty to one

count of attempting to possess with the intent to deliver 50

grams or more of methamphetamine, in violation of 21

U.S.C. § 846.
2 No. 04-1388

In this appeal, Bothun raises two challenges to the

way that the district court applied the U.S. Sentencing

Guidelines in determining his sentence; he also asserts that

his Sixth Amendment rights were violated when his

sentence was increased based on judicially found facts,

under then-mandatory Guidelines. We find no error in the

application of the Guidelines, but Bothun is entitled to a

limited remand under United States v. Paladino, 401 F.3d

471 (7th Cir. 2005), for a determination whether the district

court would impose a different sentence under the nowadvisory guidelines. See United States v. Booker, 125 S.Ct.

738 (2005).

I

Months before Bothun’s capture at the border, the Drug

Enforcement Administration (DEA) received information

from an informant about Bothun’s drug activities that

eventually led to the DEA’s search and seizure of 75.3

grams of methamphetamine from Bothun’s mailbox at a

Mailboxes Etc. store. After obtaining a search warrant

covering both Bothun’s Edgerton, Wisconsin, home and two

storage units leased to him, the DEA conducted a search

and found a wealth of drugs, drug paraphernalia, and guns.

At Bothun’s home the DEA agents discovered a .22 caliber

rifle and ammunition in a child’s bedroom. The agents also

found marijuana, pharmaceutical bottles, needles, syringes,

mailing labels, and other drug paraphernalia in the home.

In the attic above Bothun’s workshop, which was attached

to his garage, the agents found two rifles and a shotgun,

more marijuana and methylenedioxyamphetamine. In the

Madison storage unit, the agents found a .40 caliber semiautomatic handgun, a digital scale, 83.8 grams of

Oxycodone, 2.02 grams of Hyrcodone, and marijuana.

Finally, at Bothun’s storage locker in Edgerton, the agents

found 7,646 grams of marijuana.
No. 04-1388 3

In July 2003, following his arrest in Texas, a grand jury

indicted Bothun in a two-count indictment charging him

with violations of 21 U.S.C. § 846 for conspiring to possess

with intent to distribute more than 50 grams of methamphetamine and attempting to possess with intent to distribute more than 50 grams of methamphetamine. Bothun

pleaded guilty to Count Two in October 2003.

In the fall of 2003, while incarcerated at the Dane County

Jail awaiting sentencing, Bothun made several calls to his

wife, during which he instructed her how to manufacture

methamphetamine. Bothun indicated that he would send

her a letter with a “recipe” describing how to cook “cake and

stuff.” He also had his wife speak to another inmate, known

as Country, to whom Bothun referred as his “chemist

buddy”; Country also offered Ms. Bothun some tips on how

to manufacture methamphetamine. Bothun told his wife to

“hit” various Wal-Marts each day to purchase the ingredients and slowly build up a stock of cold medicine that could

be converted into methamphetamine.

In February 2004, the district court sentenced Bothun

to 235 months’ imprisonment based on its finding that

Bothun was responsible for possessing with intent to

distribute at least 3,000 but not more than 10,000 kilograms of marijuana equivalent. (The Drug Equivalency

Tables that follow U.S.S.G. § 2D1.1 translate most common

drugs into an equivalent amount of marijuana, to facilitate

comparisons. Under the table, one gram of methamphetamine equals two kilograms of marijuana; one gram of what

is called methamphetamine (actual)— meaning the weight

of the pure substance in a mixture—equals 20 kilograms of

marijuana.) The court increased his sentence by two levels

under U.S.S.G. § 2D1.1(b)(1) because it found that he

possessed a gun in connection with a drug offense. The

court found that the government had met its burden of

showing that the guns found at Bothun’s home and storage

locker were used in connection with his drug distribution.
4 No. 04-1388

Bothun objected to the application of the gun enhancement

on the ground that the government had not shown that he

actually possessed the weapons or that he was present in

the home or storage facilities when the guns were there, but

the court was not persuaded. The court also determined

that Bothun should not receive a reduction for acceptance

of responsibility because of his efforts (along with those of

Country) to have his wife continue to manufacture methamphetamine while he was incarcerated.

II

A

Bothun’s first argument on appeal is that the district

court erred in enhancing his sentence by two levels for

possession of a weapon in connection with a drug crime,

because (he asserts) the evidence did not permit a finding

that he had direct or constructive possession of the weapons

found in his home. The government never offered physical

proof that he had touched any of the guns, nor did it

introduce testimonial evidence from its informants that he

had used the weapons. Finally, according to Bothun, the

government failed to prove that he exercised the type of

control over the weapons that would be necessary for a

finding of constructive possession. Post-Booker we continue

to review the court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. United

States v. Turner, 400 F.3d 491, 500 (7th Cir. 2005); see also

United States v. Garcia, 413 F.3d 201, 221-24 (2d Cir. 2005)

(explaining why and how the clear error standard of review

for factual findings applies even though the ultimate issue

is reasonableness).

The application note to § 2D1.1(b)(1) instructs a court

to apply this provision “if the weapon was present, unless

it is clearly improbable that the weapon was connected with

the offense.” § 2D1.1, cmt. n.3. This determination requires
No. 04-1388 5

that the government first prove by a preponderance of the

evidence that the defendant possessed the gun. United

States v. Corral, 324 F.3d 866, 872 (7th Cir. 2003). If the

government is able to do so, the burden shifts to the

defendant to show that it was “clearly improbable” that the

weapon was connected to the offense. Id. “Actual possession

of the firearm need not be established in order to trigger the

enhancement. Instead, proof of constructive possession, that

is, that the defendant had the power and the intention to

exercise dominion or control of the firearm, is sufficient to

warrant the enhancement.” Id. (quoting United States v.

Thomas, 294 F.3d 899, 906 (7th Cir. 2002)).

The government met its initial burden. We described

earlier the many firearms that the agents found when they

searched Bothun’s home and storage units. Those weapons

were found close by drugs and drug paraphernalia. As we

have explained before, “guns found in close proximity to

drug activity are presumptively connected to that activity.”

Corral, 324 F.3d at 873. Bothun did not introduce evidence

compelling the district court to find that it was clearly

improbable that the weapons were used in connection with

the offense. See, e.g., United States v. Brack, 188 F.3d 748,

764 (7th Cir. 1999). We thus find no clear error in the

court’s decision to apply the firearm enhancement described

in § 2D1.1(b)(1).

B

Bothun also challenges his sentence because the court did

not give him a reduction for acceptance of responsibility

under § 3E1.1. He claims that the court had a rigid “policy

not to give acceptance when a defendant commits a new

offense during the case.” As a result of the purported policy,

he accuses the court of refusing to engage in the “contextspecific” inquiry required for determining whether a

defendant should receive an acceptance of responsibility
6 No. 04-1388

reduction under United States v. Frykholm, 267 F.3d 604,

611 (7th Cir. 2001). We review the court’s decision to deny

a reduction in a defendant’s sentence for acceptance of

responsibility for clear error. United States v. Hicks, 368

F.3d 801, 808 (7th Cir. 2004).

The application note to § 3E1.1 explains that a guilty plea

is usually evidence that the defendant has accepted responsibility. See § 3E1.1, cmt. n.3. The district court may

nevertheless consider a defendant’s continued criminal

activity in the course of deciding whether he should receive

a reduction for acceptance of responsibility, although such

activity does not automatically preclude the reduction. See

United States v. McDonald, 22 F.3d 139, 141 (7th Cir.

1994). As we explained in McDonald:

Although a guilty plea before trial is significant evidence of acceptance of responsibility, it may be outweighed by conduct of the defendant that is inconsistent with such acceptance. . . . A district court may

conclude that continued criminal activity, such as use

of a controlled substance, is not consistent with acceptance of responsibility.

Id. at 144 (internal citation omitted).

In Bothun’s case, the court found that “Mr. Bothun had

an opportunity to show that he accepted responsibility when

he was arrested and jailed, and instead of demonstrating

that he understood the seriousness of his conduct at that

time and the criminal nature of his conduct, he engaged in

continuing criminal conduct about which there’s no dispute.” Bothun challenged that decision because it was made

at the time of sentencing rather than at the time of the

plea, but the court explained:

I’m not making a definitive ruling, but it has been my

practice to consider what a defendant did when he

was arrested and when he pleaded. And when that
No. 04-1388 7

defendant in this case, or in other cases, where he

continues to engage in criminal activity, I do not give

acceptance of responsibility.

It is somewhat troublesome that the judge said that she had

a “practice” of not giving defendants a reduction when they

continue to engage in criminal activity, because the Guidelines do not authorize the court to adopt a per se rule

denying a reduction when a defendant engages in further

criminal activity after his plea. Nevertheless, in this case

the judge’s comments taken as a whole reassure us that she

properly weighed all the circumstances before rejecting the

adjustment for acceptance of responsibility. In particular,

her comments immediately prior to this statement indicate

that she made a context-specific inquiry into Bothun’s

actions. We conclude, therefore, that the court did not apply

the Guidelines incorrectly in this instance and that it did

not commit clear error in refusing to award Bothun a

reduction for acceptance of responsibility.

III

The court imposed a sentence of 235 months’ imprisonment based on its finding that Bothun possessed with

intent to distribute the equivalent of 3,000 kilograms of

marijuana, but not more than 10,000 kilograms. This drug

quantity dictated an offense level of 34. After the court

imposed the two-level enhancement under § 2D1.1(b)(1),

bringing his offense level up to 36, and it determined that

his Criminal History Category was III, it arrived at a

Guidelines range of 235 to 293 months. Within that range,

the court decided that “[a] sentence at the bottom of the

range will be sufficient to reflect the seriousness of [his]

conduct and protect the community.” Imposing the sentence, the judge commented, “I’m not particularly happy

about the length of the sentence that I have to give you, but

just for your and [your attorney’s] thinking, I believe that
8 No. 04-1388

it is my job to apply the guidelines the way they are set up

to work and not to try to arrive at a lower sentence by just

ignoring the guidelines and the various factors that do

contribute to a long sentence.”

Although we have found no error in the court’s application

of the Guidelines, the fact that it did so under the impression that the Guidelines were mandatory and the lack of

any indication that the court would have imposed the same

sentence under any circumstances put this case in the

familiar category of those that require a limited remand

under the terms of Paladino, 401 F.3d at 483-84. In all

other respects, we AFFIRM the judgment of the district

court, but while retaining jurisdiction over the appeal, we

order a LIMITED REMAND to the district court so that it can

advise us whether it is inclined to resentence now that it is

clear that the Guidelines are advisory.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-15-05