# 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

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

HOLLY KING AND BRIAN

UNDERWOOD,

Defendants

‐ Appellants

. Appeals from the United States District

Court for the Western District of

Wisconsin

No. 08 CR 49

Barbara B. Crabb, Chief Judge

.

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. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1Nos. 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 theNos. 08

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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. 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. 1Nos. 08

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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

, attemptedNos. 08

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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 aNos. 08

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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.