16 United States v. Dunlap, et al. Nos. 98-3855/3856

persuasive, either individually or collectively. Accordingly,the judgments of sentence are AFFIRMED.

*

The Honorable James S. Gwin, Uni

Northern District of Ohio, sitting by desi

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES DUNLAP (98-3855)and JAKHAN THOMAS(98-3856),

Defendants-Appellants.

Appeal from the United St

for the Southern District of 

No. 97-00128—Edmund A. Sar

Argued: Septembe

Decided and Filed: M

Before: KRUPANSKY and NO

GWIN,

*

 Distric
2 United States v. Dunlap, et al. Nos. 98-3855/3856

_________________

COUNSEL

ARGUED: Terry K. Sherman, Columbus, Ohio, FrederickD. Benton, Jr., Columbus, Ohio, for Appellants. David J.Bosley, ASSISTANT UNITED STATES ATTORNEY,Columbus, Ohio, for Appellee. ON BRIEF: Terry K.

Sherman, Columbus, Ohio, Frederick D. Benton, Jr.,Columbus, Ohio, for Appellants. David J. Bosley,ASSISTANT UNITED STATES ATTORNEY, Columbus,Ohio, for Appellee.

_________________

OPINION

_________________

KRUPANSKY, Circuit Judge. The defendantsappellants James E. Dunlap, also known as “Fatty”

(“Dunlap”), and Jakhan Thomas, also known as “Ja-Con”(“Thomas”), have each contested his respective sentenceimposed following his conviction entered upon his guilty pleato conspiring to possess and distribute cocaine base (or“crack”). Both defendants have assailed their sentencingenhancements for possession of a dangerous weapon inconnection with that offense. Dunlap has additionallychallenged the district court’s quantification of cocaine baseattributable to him, whereas Thomas has disputed thesentencing bench’s rejection of his application for adownward sentencing departure.

Beginning on approximately December 1, 1996, and

continuing until July 30, 1997, agents of the Columbus PoliceDepartment (“CPD”) and the Federal Bureau of Alcohol,Tobacco, and Firearms (“ATF”) jointly investigated a majornarcotics consortium which encompassed Dunlap andThomas, together with at least three additional confederates.On December 14 or 15, 1996, surveillance operativesvideotaped Thomas’ sale of a Glenfield .22 caliber (model no.

Nos. 98-3855/3856 United Stapowerless to revisit, modify, amenaside, vacate, avoid, nullify, rescinprior Sixth Circuit panel’s publislaw. Washington, 127 F.3d at 516at 1418.

In a bid to surmount that ob

Thomas has argued that, because this purportedly unfair irrespective of constitutionality, the district courfailing to award him a downward s18 U.S.C. § 3553(b) and U.S.S.G. § by reason thereof. However, althdecision to depart from the Guideliof discretion, Koon v. United Sta(1996), its decision not to depart iscrutiny, unless the sentencing judto comprehend the lawful extent of United States v. Coleman, 188 F.3(en banc); United States v. LandeCir. 1994).

In the case sub judice, the initial 

authority to depart downwardly fmandated sentencing range by sentencing disparity at issue; thus failure to do so. See United States 504 (6th Cir. 1999) (remarking threpeatedly that objections to the disparate punishments for crimes incocaine powder are meritless and tgrounds for downward departure f(emphasis added) (quoting United 142, 154 (6th Cir. 1996) (citations Gaines, 122 F.3d 324, 328-31 (6trial court’s downward sentencing 100 to 1 crack-to-power cocaine d

This review has carefully co

advanced by the defendants-ap
14 United States v. Dunlap, et al. Nos. 98-3855/3856

13Standing alone, 44 grams of cocaine base would incite an offense

level of 30. U.S.S.G. § 2D1.1(c)(5). (The maximum possible overallGuidelines offense level is 38, whereas the lowest is six). The seizure ofa major volume of cocaine base at a fortified high-traffic “crack house”necessarily raises the reasonable inference that those illegal stimulantswere possessed for distribution purposes. See United States v. Harris,192 F.3d 580, 589 (6th Cir. 1999) (ruling that the government had provedat trial beyond a reasonable doubt, via circumstantial evidence, that thedefendant had possessed a mere 5.9 grams of crack for distribution ratherthan personal consumption, because the defendant carried that cocainebase, packaged in twenty small individually wrapped units for convenientstreet dispensation, while armed, in an urban district reputed for narcoticsactivity). The sentencing court’s discrediting of Tyson’s assertion that hepossessed those drugs for personal consumption is not subject to appellatere-evaluation. United States v. Gessa, 57 F.3d 493, 496 (6th Cir. 1995).

rather than “personal use,” crack;13 and further, that saidcrack was either the property of Dunlap, jointly possessed byDunlap and Tyson, and/or foreseeably possessed by Tysonwithin the orbit of his cooperative criminal relationship withDunlap. Accordingly, the trial court’s imputation, againstDunlap, of the 44 grams of crack uncovered at 3114Allegheny Avenue was untainted by reversible error.

Additionally, Thomas has contested the constitutionality of

the Congressionally-mandated 100 to 1 statutory sentencingdisparity between crack cocaine and powder cocaine, wherebya given quantity of cocaine base triggers a penalty equivalentto that of one hundred times that weight of cocaine powder.See 21 U.S.C. § 841(b)(1) (A) & (B); U.S.S.G. § 2D1.1(c)(Drug Quantity Table). However, in his brief, Thomasconceded that “this issue has been previously decided” by theSixth Circuit. See, e.g., United States v. Smith, 73 F.3d 1414,1417-18 (6th Cir. 1996) (overruling a constitutional attackagainst the subject statutory sentencing disparity by applyingpertinent binding Sixth Circuit precedents); United States v.Washington, 127 F.3d 510, 516-18 & n.9 (6th Cir. 1997), cert.denied, 118 S. Ct. 2718 (1998). This panel is precluded fromaccommodating Thomas’ invitation to reconsider thepreviously adjudicated constitutional issue which he hasframed, because a subsequent panel of this circuit court is

Nos. 98-3855/3856 United Sta

1The rifle’s stock had been re-fashio

and its serial number had been obliterate

2Peace constables surreptitiously 

transactions at that location, including clandestine video and audio taping system60) sawed-off rifle1 to an unidentif(“CI”) for $50 at the CI’s residencColumbus, Ohio).2 During that extwo grams of cocaine base on the Cthe CI did not then purchase any o

Thereafter, the CI and cover

purchased crack cocaine directly 23, 1997, in response to the CI’s patelephone conference, Thomas persof crack to the CI’s residence, whiundercover agent. On June 19domicile, a clandestine investigasolicited twelve grams of crack froresidential telephone, Thomas accomplices, Frank Woods, to obof Bryan Williams, a supplier of Following Thomas’ telephone cinstructed the CI to drive him Columbus, Ohio, where Thomas unidentified male. The CI then reCI’s) residence, where Thomas, usdetermined the weight of his receneleven grams. Because that quantthe undercover detective’s order, Tof crack which he took from a plCrime laboratory technicians laaggregate amount of cocaine base occasion weighed 11.8 grams.

Approximately one month later, 

the CI’s residence, a law enforcemas a crack addict offered to pu
4 United States v. Dunlap, et al. Nos. 98-3855/3856

3Tyson and Dunlap had each executed, as co-tenants, a rental

agreement for that apartment.

4In total, law enforcement personnel seized 44 grams of cocaine base,

coupled with 45.4 grams of marijuana, during the July 17, 1997 search of3114 Allegheny Avenue. The marijuana is not material to the instantappeal.controlled substance from Thomas. In response, Thomasdialed a beeper number, which subsequently prompted areturn call from defendant Dunlap via a telephone registeredto co-conspirator Dashawn Tyson at 3114 Allegheny Avenue,Apartment C, Columbus.3 Following his conversation with

Dunlap, Thomas instructed the CI to drive him and theirprospective client (the covert detective) to “Chuck’s CarryOut,” 3140 Allegheny Avenue, Columbus, which was locateda short distance from Tyson’s domicile. Thomas theninitiated a call from a nearby public telephone booth; minuteslater, Dunlap arrived at the scene. Thomas immediatelyexited the CI’s automobile, entered Dunlap’s vehicle, andmomentarily returned to the CI’s vehicle toting 24.8 grams ofcrack cocaine, which he negotiated to the incognitoinvestigator for $1,080. Unbeknownst to Thomas andDunlap, officers had previously registered the serial numbersof those Treasury bills.

Two days later, July 17, 1997, Columbus peace officers

executed a search warrant at Tyson’s residence, 3114Allegheny Avenue, Apartment C. Inside that dwelling, theCPD raiders discovered Tyson and Williams, accompanied bytwo other individuals. Detectives surfaced United Statescurrency totaling $2,700, including $800 of the recorded banknotes which the undercover buyer had used to purchase crackfrom Dunlap, through Thomas, two days previously,concealed within a safe inside an upstairs bedroom closet,together with 25.1 grams of crack. An additional $800 incash was also discovered in the closet. An additional 18grams of cocaine base was found in the kitchen near a loadednine millimeter Highpoint handgun. The officers also located0.9 grams of cocaine base on the living room floor.4 A

Nos. 98-3855/3856 United Stav. Owusu, 199 F.3d 329, 347-48 States v. Hill, 79 F.2d 1477, 1485-States v. Cochran, 14 F.3d 1128, 1

Next, Dunlap has faulted the dis

him of the 44 grams of crack seiAvenue raid. As stated previoushould be charged, at sentencingcommitted within the scope of h(“relevant conduct”), includinforeseeably possessed by his comtheir coordinated distribution § 1B1.3(a)(1)(A) & (B); United S1490, 1493-94 (6th Cir. 1992) (§ 1B1.3, comment. (n.2) (positiaccountable for narcotics possespossession was both in furtherforeseeable in connection with, joactivity); United States v. Ledezma1994). “The government bears tquantity of drugs chargeable to a purposes by a preponderance of factual findings, the sentencing determination is reviewable only f

F.3d at 496 (citations omitted). 

Dunlap has claimed that he did 

cocaine base discovered at Alleghereiterated his allegation that he lackapartment whereas numerous unrelathat locale for narcotics transfers ahas touted Tyson’s proclamation implicated cocaine base for his conspiratorial distribution. Howeabove, that Dunlap engaged in conwith Tyson at and from the Alsufficiently evidenced, by a significant quantity of crack in qu
12 United States v. Dunlap, et al. Nos. 98-3855/3856

cannot be gainsaid, the trial court’s two-point weaponsenhancement of Thomas’ offense level was not clearlyerroneous.

The district court similarly added the two-point weapons

enhancement to Dunlap’s offense level tabulation, findingthat he actually or constructively possessed one, or both, ofthe two loaded handguns confiscated at the crack den by CPDoperatives on July 17, 1997. Dunlap has contended that hedid not own either of those pistols, that he lacked ready accessto that address (3114 Allegheny Avenue, Apartment C)because Tyson solely resided there, and that he lacked actualknowledge of the existence of the subject pistols. However,Dunlap had co-signed the lease for that apartment, where hefrequently conducted narcotics trade. During the CPD raid,agents surfaced certain of Dunlap’s possessions, including aretail receipt memorializing Dunlap’s purchase of atelephonic pager, photographs of Dunlap, and mail addressedto Dunlap at that location. Additionally, on July 15, 1997,Dunlap had personally responded to Thomas’ telephone pageby placing a return call from the Allegheny Avenue residence,which culminated in Dunlap’s sale, through Thomas, of 24.8grams of crack to an incognito detective. Additionally,surveillance intelligence revealed that Dunlap had beenpresent at the Allegheny Avenue apartment on July 16, 1997,the day preceding the warrant execution which wouldultimately yield the two firearms.

Consequently, no clear error invalidated the district court’s

finding that Dunlap jointly occupied and/or controlled theAllegheny Avenue apartment as a co-tenant with hisconfederate Tyson. Dunlap exercised access, control, and/ordominion over those premises, which served as a “safe house”for the crack cartel’s distribution activities. Furthermore, thepresence therein of weapons owned by hisroommate/accomplice Tyson which were connected to theconspiracy’s narcotics business was reasonably foreseeable.Hence, the sentencing court properly imputed constructivepossession of those firearms to Dunlap, even if he lackedactual knowledge. U.S.S.G. § 1B1.3(a)(1)(B); United States

Nos. 98-3855/3856 United Sta

5Counts two, three, five, six, and 

unlawfully possessed with intent to disbase, on December 14, 1996, March 23, 11997 (two counts), respectively. Counts spossessed cocaine base with intent to dist17, 1997, respectively. Count four impcount nine concerned only Bryan Williamloaded Browning .380 pistol, togemagazine, was secreted within a livcase containing two additional amhidden behind that couch. The invtwo electronic pagers plus a purchato James Dunlap, along with corresbelonging to Dunlap. A digital kitchen counter.

On October 14, 1997, a federal g

count indictment against Dunlap, Tand Tyson. Count one alleged tDecember 1, 1996 and continuing ufive defendants had conspired tdistribute, and/or distribute, more base, in violation of 21 U.S.C. § 8and § 846. Count one further speconducted crack trafficking fromAvenue and 3114 Allegheny AvenDunlap, Thomas, and Tyson used the charged conspiracy. Additioninstances of crack distribution by other indicted participants in the r

Ultimately, Dunlap and Thomas 

Fed. R. Crim. P. 11, to the firsdismissal of all other charges. Thboth defendants on July 16, 199proceeding, Thomas opposed the two-level augmentation to his offea firearm, and also moved for a dowsentencing range mandated by the 
6 United States v. Dunlap, et al. Nos. 98-3855/3856

6The initial court computed Thomas’ sentence by matching his

offense level (31) with his criminal history category (I), which producedan imprisonment range of 108 to 135 months. U.S.S.G. Chap. 5, Pt. A(Sentencing Table). Accordingly, Thomas incurred the least punitivedetention term permissible under the Sentencing Guidelines.

7Like Thomas, Dunlap had merited an offense level of 31 and a

criminal history categorization of I; thus, his 108 month penalty was themost lenient allowed by the Guidelines. See note 6 above.

8A finding of fact is clearly erroneous when “the reviewing court on

the entire evidence is left with the definite and firm conviction that amistake has been committed.” Anderson v. City of Bessemer City, 470

U.S. 564, 573 (1985) (citation omitted). A reviewing bench shouldsustain a sentencing court’s factual finding if it was supported by “some

Guidelines (effective November 1, 1997) (“U.S.S.G.”). Thesentencing bench rejected both of Thomas’ applications, andconsequently condemned him to 108 months of correctionalconfinement,6 to be followed by four years of supervisedrelease, and exacted the $100 felony special assessmentmandated by 18 U.S.C. § 3013(a)(2)(A). Likewise, atDunlap’s sentencing hearing, the trial judge, after overrulinghis objections to the government’s proposed two-pointfirearms enhancement to his offense level, as well asattribution against him of the 44 grams of crack seized duringthe July 17, 1997 search of 3114 Allegheny Avenue,committed Dunlap to the United States Bureau of Prisons for108 months,7 to be followed by four years of supervisedrelease, and fined him $1,000 plus the $100 mandatoryassessment. 

On review, Thomas and Dunlap have each challenged the

district court’s two-degree increase of his base offense levelfor possession of a “dangerous weapon,” namely a firearm,during a controlled substance trafficking offense. U.S.S.G.§ 2D1.1(b)(1). A sentencing court’s determination that aconvicted defendant possessed a dangerous weapon duringthe commission of a drug distribution offense constitutes afactual finding reviewed for clear error under thepreponderance of the evidence standard.8 18 U.S.C.

Nos. 98-3855/3856 United Stasimilar offenses implicating most firearm5845(a)).(expounding that “[t]he enhancemreflects the increased danger of violpossess weapons.”); Gibson, 135 apparent that the policy underlying enhancement is to punish those detransactions who present, by the poincrease in the likelihood of viotransaction.”); Duncan, 918 F.2d firearms increases the level of dasentence.”); Castillo, 979 F.2d at defendant’s mere possession of a commerce, including a firearm whto sell to his drug customer, triggerenhancement because the possdefendant “would have used thtransaction had he thought it neceThomas could have aggressively dpossession of “distribution” crack, transfer of that weapon to the CI.

Thus, even if Thomas had carrie

CI’s residence with an intent to remains that he also carried that wea narcotics transgression. See GCastillo, 979 F.2d at 10-11. Psatisfied his burden of proving thany link between the gun and the devidence of “special circumstancethe subject armament from the cinstrumentality” weapons, such avaluable collector’s piece, or beinsuited for criminal purposes. To tissue was fully serviceable, was nomodified to facilitate its rapid recreational confrontational contconnection between the gun and 
10 United States v. Dunlap, et al. Nos. 98-3855/3856

Greer, 588 F.2d 1151, 1155 (6th Cir. 1978). See, e.g., 26 U.S.C.

§ 5845(a), defining “firearm(s)” which are subject to certain specialregistration requirements and excise taxes to include, inter alia, “(3) arifle having a barrel or barrels of less than 18 inches in length; [or] (4) aweapon made from a rifle if such weapon as modified has an overalllength of less than 26 inches or a barrel or barrels of less than 16 inchesin length[.]” This circuit has explained:

The term “firearm,” as set forth in 26 U.S.C. § 5845 (1988),

is very narrowly defined to encompass only weapons such asmachineguns, silencers, sawed-off shotguns and rifles[,] andbombs. Congress required registration of these types ofweapons because it believed that these weapons, by their verynature, were extremely dangerous and served virtually nopurpose other than furtherance of illegal activity.”

United States v. McKelvey, 7 F.3d 236 (Table), 1993 WL 339704, at *6(6th Cir. Sept. 1, 1993) (per curiam) (unpub’d) (emphases added;

citations omitted). 

The McKelvey court further remarked that, via the legislative history

of the Gun Control Act of 1968,

Congress noted that the principal purpose of the Act “is tostrengthen Federal controls over interstate and foreign commercein firearms and to assist the States effectively to regulatefirearms traffic within their borders” and that the need tostrengthen the controls is based on “the increasing rate of crimeand lawlessness and the growing use of firearms in violentcrime.”

Id. at * 6 (brackets and parenthesis omitted) (quoting H.R. Rep. No. 1577,

90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 4410, 4411-

15)). Additionally, the McKelvey court underscored that Congress, viasection 5845, exempted antique arms and almost any other device which“by reason of the date of its manufacture, value, design and othercharacteristics is primarily a collector’s item and [is] not likely to be usedas a weapon.” Id. at * 6-7 (quoting 26 U.S.C. § 5845(a)).

See also U.S.S.G. § 2K2.1(a) (1), (3), (4)(B), & (5) (creating

comparatively elevated base offense levels for persons convicted ofcrimes involving the receipt, possession, transportation, or otherprohibited transaction in firearms described in 26 U.S.C. § 5845(a), thusreflecting the Sentencing Commission’s judgment that prohibitedtransactions in such weapons should be punished more harshly than

Nos. 98-3855/3856 United Staminimum indicium of reliability beyond mv. Robison, 904 F.2d 365, 371 (6th Cir. 

also United States v. Partington, 21 F

U.S.S.G. § 6A1.3(a) (Policy Statement). do not review the district court’s detecredibility.” United States v. Gessa, 57 

(citation omitted). However, although deference to a lower court’s application othe material facts, construction of the Guilaw subject to plenary review. 18 U.S.Sivils, 960 F.2d 587, 596 (6th Cir. 1992)

9“The Sentencing Commission’s N

guidelines is authoritative and binding uinconsistent with the Constitution, a fethemselves.” United States v. Landers, 1994) (citing Stinson v. United States, 50§ 3742(e); United States v. Hill, 79 1996). 

The United States Sentencin

Commentary9 to section 2D1.1 p

adjustment should be applied if unlessit is clearly improbable that with the offense. For example, the applied if the defendant, arrested unloaded hunting rifle in his clocomment. (n.3) (emphases added)must prove, by a preponderance defendant actually or constructiveland (2) such possession was duri[narcotics] offense.” Hill, 79 F.3d 

The burden then shifts to the def

improbability of any connection be

the weapon. Id.

The district court found that, 

Thomas had possessed his modifithe commission of a drug traffickThomas has contended that the Un
8 United States v. Dunlap, et al. Nos. 98-3855/3856

10Count two of the indictment had charged Thomas with possession

of cocaine base with intent to distribute on or about December 14, 1996,the approximate date of the firearm transfer. As stated above, the districtcourt dismissed that count, and others, pursuant to a Rule 11 pleaagreement, under which Thomas pled guilty to the conspiracy charge(count one). However, criminal activities linked to the crime ofconviction which are proved at sentencing by a preponderance ofevidence should be punished as “relevant conduct,” even if suchmisconduct had been uncharged, or charged in a count of dismissal oracquittal. U.S.S.G. § 1B1.3(a)(1)(A); United States v. Lloyd, 10 F.3d1197, 1221 (6th Cir. 1993); United States v. Kappes, 936 F.2d 227, 229(6th Cir. 1991); United States v. Duncan, 918 F.2d 647, 652 (6th Cir.1990).

that he possessed that weapon during a narcoticstransgression; and, in any event, he purportedly had provedthe “clear improbability” of any connection between thatweapon and any drug crime which he had committed. He hasemphasized that, when he vended his sawed-off long gun tothe CI, he did not contemporaneously distribute any cocainebase.

However, as illustrated above, Thomas was a professional

dope peddler who pleaded guilty to conspiratorial possessionand distribution of cocaine base. During the firearmtransaction in controversy, he physically possessed two gramsof crack, which he weighed in the presence of the CI for themanifest purpose of (1) notifying the CI that those illegalstimulants were available for purchase, and/or (2) preparingthem for street distribution. Hence, no clear error infected thesentencing court’s rational inference, supported by apreponderance of evidence, that Thomas possessed thetruncated rifle while in felonious possession of “distribution”crack, thus satisfying the prosecution’s burden of proof.10

Moreover, Thomas has failed to discharge his rebuttal

burden. His personal carriage of the altered rifle during hisactive commission of a drug trafficking offense raises theinescapable inference that he possessed the gun in connectionwith his concurrent narcotics infraction. See, e.g., United

States v. Gibson, 135 F.3d 1124, 1128 (6th Cir.) (resolving

Nos. 98-3855/3856 United Sta

11Section 924(c) postulates, in perti

Whoever, during and in relation 

crime . . . for which he may be prUnited States, uses or carries a firearpunishment provided for such . . . sentenced to imprisonment for five y

18 U.S.C. § 924(c)(1). (Emphasis added

12This appellate forum has recogniz

categorized certain highly dangerous weapbecause of their manifest primary crimi

that an unloaded silencer-equippbartered by undercover agents to tfor cocaine base was possesseconnection with the defendant’s na2D1.1(b)(1) purposes), cert. denieUnited States v. Castillo, 979 F.2(sustaining a two-point § 2D1.1(b)ignited by the defendant’s sale of a with cocaine base, to an incognito 

United States v. Duncan, 918 F.1990). Accord, Fair v. United Sta(6th Cir. 1998) (ruling, in an anU.S.C. § 924(c),11 that a person w

firearm to a drug deal has carried ththe underlying narcotics transactiopurpose he may have allegedlinstrument) (citing, inter alia, Mu524 U.S. 125, 131-38 (1998)).

The conclusion that Thomas’ po

rifle was “connected” to a conspirabolstered by the trial court’s expl[had been] sawed from the end to malmost a pistol.” The rifle’s alteracriminal instrumentality suitable fprotection tool and/or a streeimplement.12 See U.S.S.G. §