NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0240n.06 No. 09-5822 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. COREY CRADDOCK, Def endant- Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF TEN

NESSEE

O P I N I O N

Before: SUHRHEINRICH, MOORE, and COOK, Cir cuit Judges. KA REN NELSO N MOORE, Circuit Judge. Def endant- appellant Corey Craddock challeng es the district court’s application of a two-leve l enhanc ement to his base offe nse l evel pursuant to United States Sentencing Guidelin es (“ U. S.S.G.” or “Guidelines” ) § 2D1.1(b)( 1) (2008), for possessing a firea rm during a drug offe nse. Be cause the district c ourt’s fac tual finding that Craddock possessed the firea rm during the rele vant drug transac tion was not clea rly err oneous and bec ause Cra ddock did not show that it was clea rly improbable that the f

irea rm was c onnecte d to the drug transac tion, we AF F IRM the judg ment of the district cour t. I. BACKG ROUND & P ROCEDURE On Aug ust 26, 2008, Craddock was indicted on five counts of “distribut[ ing] five g rams or

more of a mix ture and substance containing coca ine base” in violation of 21 U.S.C. § 841(a) (1) andNo. 09-5822

United States v. Craddock (b)( 1)(B ) (2006), and one count of possessing a firea rm “having previously been convicted in court 1 of a crime punishable by imprisonment for a term exceeding one y ear ” in vio l at i o n of 18 U.S.C. § 922(g ). R.1 (I ndictment). The dr ug -distribution counts resulted from a series of five c ontrolled purcha ses o f coca ine base conducte d by the Chattanoog a Police Depa rtment using a confide ntial inf o rm an t (“CI ”) over the period of time from J anuar y 4, 2008 to Fe bruar

y 22, 2008. The single firea rm count was based on t h e al l ega t i o n that, on J anuar y 17, 2008, as part of one of t he sales of

coca ine base, Craddock also sold a .32-cal i ber Smit h & Wesson revolve r to the CI

. Craddock pleade d g uilty

pursuant to a plea

ag ree ment to one of the five distribution counts (“Count One” of the indictment) and to the felon-in- possession-of-a -fire arm count (“Count Four ” of the indictment). The g overnme nt dismi ssed the other four distribution counts. Prior to se ntencing , the U.S. Probation Offic e pre pare d a Presentenc e I nvestig ation Report (“PSR”), in which it calc ulated the advisory sentenc ing rang e pursuant to the Guidelines. Be cause

Pursuan t t o the Fa ir Sentencing Act of 2010, Pub. L

. No. 111-220, 124 Stat. 2372, the 1 quantity of “mix ture or substance containing coca ine base” that trig g ers § 841(b)( 1)(B )’s mandatory minimum sentenc e of 60 months of i mprisonment was increase d fr o m fi v e gra ms to twenty -eig ht g rams. We have held, howeve r, that the Act does not apply retroa ctively

. United States v. Carradine , 621 F.3d 575, 580 (6th Cir. 2010), cert. denied , 79 U.S.L .W. 3539 (U.S. Mar. 21, 2011) (No. 10-8937). Additional l y , the United States Sentencing Commi ssion rec ently promulg ated an amendment to the Guidelines to implement the Act that will be eff ective November 1, 2011, absent cong ressional action to modify or reje ct the amendment. News Release , U.S. Sentencing Comm’n, U.S. Sentencing Commi ssion Promulga tes Permane nt Amend m en t to the Fe dera l Sentencing Guidelines Covering Crack Cocaine, Other Drug Traf ficking Offe nses (Apr. 6, 2011), available at http:// www.ussc.g ov/L egi s l at i v e_ an d

_ P u blic_Affa irs/Newsroom/Press_Relea ses/20110406_Pres s_Rel ea s e. p d f. The Commi ssion curr ently is considering whether the amendment should apply retroa ctively

. Id. ; see also 28 U.S.C. § 9 9 4 (o ), (u) (providing the Commi ssion with the power to decide whether to amend the Guidelines and whether and to what ex tent an amendment will be retroa ctive). 2No. 09-5822

United States v. Craddock

the distribution count and firea rm count “involve the same victim and the same act or transac tion,” the two counts are “g rouped” pursuant to U.S.S.G. § 3D1.2(a ), and the highe r of the offe nse levels calc ulated for the two counts in the g roup is used as the a djusted offe nse level. U.S.S.G. § 3D1.3. Wit h respe ct to the distribution count, U.S.S.G. § 2D1.1(a )(3) instructs that the offe nse level is de termined pursuant to the drug quantity table in § 2D1.1(c ). The drug quantity for purposes of the table, howeve r, is not limit ed to the quantit y involved in the count to which the defe ndant pleade d g uilty

. See U.S.S.G. § 2D1.1 cmt. n.12 (“Ty pes and quantities of drug s not specifie d in the count of conviction may be considere d in deter mining the offe nse level.”)

. Rather, the district court must deter

mine the drug quantity attributable to the defe ndant as “re levant conduct” under U.S.S.G. § 1B1.3. See United States v. Gill , 348 F.3d 147, 151–52 (6th Cir. 2003) (explaining “re levant conduct” under § 1B1.3 with respe ct to calc ulating drug quantities). There fore , althoug h Craddock sold 18.9 g rams of coca ine base to the C I in the particula r transac tion underly

ing Count One to which he ple aded guilty , the drug quantity for purposes of the Guidelines table is the total amount of cocaine base that C raddoc k sold to the CI in the five tra nsactions. Pursuant to the factual basis of Craddock’ s plea ag ree ment, Craddock sold a total of 50 g rams of coca ine base to the CI

. The base offe nse level for

distributing 50 g rams of coca ine base is 30. U.S.S.G. § 2D1.1(c )(5) (2008). The PSR included a two-leve l enhanc ement under § 2D1.1(b)( 1) for possession of a dang erous wea pon, resulting in an adjusted off ense le vel of 32 for

Count One, the drug -distribution count. Wit h respe ct to t h e felon-in-possession-of-a -fire arm count, U.S.S.G. § 2K2.1(a )(4) (A) provides for a base offe nse level of 20. The PSR included a fo u r- l ev el enhanc ement under

3No. 09-5822

United States v. Craddock § 2K2.1(b)( 6) for use or possession of a firear m “i n connec tion with another felony offe nse,” resulting in a total offe nse level of 24. Howeve r, use or possession of a firea rm in connec tion with another offe nse also trig g ers the cross-r efe renc e provision in § 2K2.1(c )(1) (A), which instructs the district court to apply

the offe nse leve l from the g uideline for the other off ense if it is g reater than the offe nse level from the firea rms g uidelin e i n § 2K2.1. To deter mine the offe nse level for the

cross-r efe renc ed g uideline, § 2K2.1(c )(1) (A) r efe rs the district court to the provision for attempts, solicitations, or conspirac ies in § 2X1.1, which, in turn, ref ers the district court to the g uideline for the substantive offe nse—her e, the drug g uideli n e in § 2D1.1. There fore , pursuant to the crossref ere nce in § 2K2.1(c)( 1)(A) , the adjust ed offense level for the firea rm in Count Four is also 32. Be cause both counts in the g roup have the same offe nse level, Craddock’ s adjusted offe nse level for the g roup is 32. The PSR subtracte d three points for acc eptanc e of responsibility from the adjusted 2 offe n s e l ev el o f 32 for a total offe nse level of 29. Using Craddock’ s total offe nse level and his crimi nal history cate g ory of VI , the PSR calc ulated the advisory Guidelines rang e as 1 5 1 t o 1 8 8 months of imprisonment. At sentenc ing, Craddock objected to the application of § 2D1.1(b )( 1 )’ s two-leve l enhanc ement for possessing a dang erous we apon during a drug offe nse. He argued that the drugs and the firea

rm wer e not part of the s ame transaction. I n response , the gover nment called Office r

E v en if the district court disag ree d with the PSR ’s calc ulations and deter mined that 2 Craddock did not possess or use the firea rm “in connec tion with” another offe nse such that the crossref ere nce provision in § 2K2.1(c )(1) (A) was not applicable , Craddock’ s offe nse level never theless would be drive n by

the drug g uideline pursuant to the g rouping provision, U.S.S.G. § 3D1.3. 4No. 09-5822

United States v. Craddock

Matthew Henne ssee of the Chattanoog a Police Depa rtment as a witness to testify about his involvement in the investigation of C ra d d o ck

. Henne ssee testified that, at a secur e location on J anuar y 17, 2008, he and other office rs first monitored a telephone call betwee n the CI and Craddock during which the two arr ang ed that t h e C I would meet Craddock at Craddock’ s house in fiftee n

m i n u tes and would pay Craddock $650—$500 for 14 g rams of coca ine base and $150 for a . 3 2

- caliber Smit h & Wesson revolve r. The office rs then sear ched the CI ’s vehicle and person to ensure that there wer e no drug s or wea pons prese nt prior to t he tra nsaction. They

also sear ched a

second person who w as g oing w ith the CI to Cra ddock’s house for the tr ansac tion. The offic ers f itted the CI with came ra rec ording equipment and turned on the equipment. Then the CI and his companion drove from the secur e location to Craddock’ s residenc e while the office rs followed them and observe d them g oing into the residenc e. The office rs observe d the companion come out of the house first and wait for the CI in the front y ard. During this time, no one approa ched the companion. The CI emer g ed from the house five to seven minutes afte r enter ing it, and the CI and his companion left Craddock’ s house. The officer s followed them back to another secur e location. Whi le drivi ng to the secur e location, the CI called Henne ssee and said that he g ot the firea rm. At the location, the office rs sear ched the informants and obtained the drug s (later deter mined to be around 12 g rams of

coca ine base) and the firea rm from the CI

. The firea rm was loca ted in the CI ’s coat pocket. The office rs also debrie fed the CI on wh at happene d during the time inside Craddock’ s house. Henne ssee testified tha t the CI said that he g ave Cra ddock $650, that Craddoc k had the firear m in his hand when he g ave the CI the drug s, and that Craddock then g ave the firea rm to the CI

. The CI

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also said that there wer e other people in the residence at t h e t i me of the transac tion. Henne ssee further testified that there wer e no fing erpr ints found on the firea rm. I n addition, Henne ssee testified about the drug transac tion that occur red on J anuar

y 4, 2008. He testified that the CI was supposed to purcha se a firea rm during that transac tion but Craddock said that the fire arm was not at his house. Cra ddock off ere d to ge t the firea

rm and lea

ve it in a vehicle in front of his house for the CI to come back and p i ck u p . He n nessee also discussed a document filed b y C ra d d ock in a separ ate civil case in which Craddock alleg ed that “TF O Ag ent Matthew Henne ssee employ ed a convicted felony confide ntial informant to come in to my home with a video

rec ord device hidden on him to purch as e a T ennesse e controlled substance and a firea rm without probable cause and without a state a ction sear ch wa rra nt.” R.46 (Sent. Hr’gTr. at 23)

. During defe nse counsel’s cross-e x amination of Hennessee , counsel play ed porti o n s o f t he video re cording for the district c ourt to view. Henne ssee testified that the video shows Craddock 3

an d the C I exchang e the money and the drug s but does not show the firearm at any time, an d t h at Craddock a

nd the CInever

mention the firea

rm during their conve rsation re corde d on the video. After Henne ssee’ s testimony , defe nse co u n s el and the district court eng ag ed in a colloquy reg arding the evidenc e and differ ent possibili ties for how the CI obtain ed the firea rm—from Craddock or a second person in the hous e but not visible on the v i d eo beca use of the angle of the

came ra, from the CI ’s companion, or from another place such as the car . Def ense counsel admitted

To protec t the identity of the CI , the portion of Henne ssee’ s testimony that involved play ing 3 the video was conducte d with counsel in the district court’s chambe rs. Craddock wai v ed h is prese nce f

or this portion of the hea

ring

. 6No. 09-5822

United States v. Craddock

that Craddock had no evidenc e to ref ute the g overnme nt’s evidenc e that the firea rm was prese nt in Craddock’ s house. Def

ense counsel, howeve r, argued that the g overnme nt must show that Craddock knew that the firea

rm was prese nt at that time. Def ense counsel’s arguments relied almost entirely

on t h e fac t that the video does not show the firea rm. In rebuttal, the g overnme nt reiter ated the evidenc e from Henne ssee’ s testimony and also raised the fact t h at pursuant to Craddock’ s plea ag ree ment, Craddock a dmitted selling a .32- caliber Smit h & Wesson fire arm to the CI on J anuar

y 17, 2008. At the completion of argument, the district court reje cted Craddock’ s objection to the twolevel enha

nceme nt. The district c ourt then adopted the PSR ’s calc ulation of the Guidelines rang e and provided counsel and Craddock an opportunity to addre ss the court reg arding an ap p ro p ri at e sentenc e. Def ense counsel reque sted a below-G uidelines sentenc e, ar g uing that Craddock’ s criminal history

ca t ego ry overr epre sented the seriousness of his criminal history , and the g overnme nt reque s t ed a sentenc e in the low-to-middle rang e of the Guidelines. The district court ultimately sentenc ed Craddock to 169 months of imprisonment for t h e d ru g-distribution count and 120 months for the firea rm count, to be serve d concur rently

. The sole issue on appea l is the district court’s application of § 2D1.1(b) (1)’ s two-level e nhance ment for possessing a fire arm. II. ANALYSIS Sentencing Guideline § 2D1.1(b)( 1) instructs the district court to apply a two-leve l enhanc ement to the defendant’s ba se off ense le vel “[i] f a da

ng erous we apon (inc luding a firea rm)

wa s p o s sessed.” U.S.S.G. § 2D1.1(b)( 1) (2008). The application notes further direc t that th e

7No. 09-5822

United States v. Craddock

enhanc ement “should be applied if the wea pon was prese nt, unless it is clea rly improbable that the

wea pon was connec ted with the offe nse.” § 2D1.1 cmt. n.3. “The g overnme nt bear s the burden of showin g b y a p reponde ranc e of the evidenc e that the defe ndant either actua lly or constructively possessed the wea

pon.” United States v. Darwich , 337 F.3d 645, 665 (6th Cir. 2003) (interna l quotation marks omitted). “The enhanc ement applies if the firea rm is p o s s essed during ‘re levant conduct,’ and not mere ly

if a we apon is possessed during the commission of the offe nse.” United States v. Kimbrough , 376 F. App’x 592, 596–97 (6th Cir. 2010) (unpublished decision) (citing United States v. Faison , 339 F.3d 518, 520–21 (6 t h C i r. 2003); United States v. Armour , 38 F.3d 1217, 1994 WL 560874, at *3 (6th Cir. 1994) (unpublished table dec ision), cert. de nied , 513 U.S. 1181 (1995), 514 U.S. 1028 (1995))

. “Onc e the g overnme nt meets its burden of showing that the defe ndant possessed a wea pon, a presumption arises that the wea pon was connec ted to the offe nse. The burden then shifts to the defe ndant to show that it was clea rly improbable that the wea pon was

co n n ec t ed with the crime.” Darwich , 337 F.3d at 665 (interna l quotation marks and citation omitted). A d is tr ic t c o u

r t’ s d e te r mi n ation that the defe ndant possessed a firea rm during the commission of a drug offe nse or rele vant conduct is a fac tual finding that we revie w for clea r err or. Id. at 664. A fac tual “finding is clea

rly err oneous when althoug h there is evidenc e to support it, the revie wing court on the entire evidenc e is left with the d ef i n i t e an d firm conviction that a mistake has been committed.” Anderson v. City of Bessem er City , 470 U.S. 564, 573 (1985) (interna l quotation marks omitted). “We will uphold the district court’s decision as long as it has interpre ted the evidenc e in

8No. 09-5822

United States v. Craddock

a manne r consistent with the rec ord,” Darwich , 337 F.3d at 664, even if w e ar e convinc ed that we would have weig hed the evidenc e differ ently , Anderson , 470 U.S. at 573–74. “Howe ver, if fac tual finding s of the district court are not challeng ed, and only the application of those fac ts as to the Guidelines is challeng ed, then our revie w is de novo.” United States v. Benson , 591 F.3d 491, 504 (6th Cir.) (c iting United States v. Chalkias , 971 F.2d 1206, 1216 n.12 (6th Cir.), cert. denied , 506 U.S. 926 (1992)), cert. de nied , 130 S. Ct . 1919 (2010). On appea l, Craddock d o es n o t challenge the district court’s finding that he possessed the firea rm. See Appellant Br

. at 12 (“In this case , while [C raddoc k] admitted to possessing the firea rm, there is no proof that the drug s wer e in the same place .”). Rather, Craddock argues that the firea rm and drug “tra

nsactions wer e separ ate” and that “ther e is no proof that the sale of the g un coincided with the sale of the drug s.” Id. Craddock also argues that “[ t] here was nothing put forth by the Gover nment that showed [Craddock] had the g un and the dr ug s in the same room.” Id. To the extent that Craddock is challeng ing the district c ourt’s finding that he possessed the firea rm during “relevant conduct” —i.e., during the drug transac tion that took place in Craddock’ s house on J anuar

y 17, 2008, we conclude that the district court did not clea rly err . Craddock admits,

as the district court s t at ed at the sentenc ing hear ing, that the CI ’s statement that Craddock was holding the firea

rm during the exchang e of the drug s and then handed the firea rm to the CI is evidenc e t h at C ra d d ock actua lly possessed the firea rm during the drug transac tion. Id. ; see R.46 (Sent. Hr’g Tr. at 54–55); see also United St ates v. Bail ey , 553 F.3d 940, 944 (6th Cir

. 2009) (“A person who knowing ly has dir ec t p h y sical control over a thing at a g iven time is then in actua l

9No. 09-5822

United States v. Craddock possession of it.” (interna l quotation marks omitted)). Be cause the video of the transac tion does not show the firea

rm, the district court also considere d whether Craddock constructively possessed the firea rm during this time. “Constructive possession of an item is the owner ship, or dominion or control over the item itself, or dominion over the premises wher e the item is located.” Darwich , 337 F. 3 d at 6 65 (interna l quotation marks omitted). The district court eng ag ed in a leng th y an d thoughtf ul discussion with defe nse counsel reg arding the evidenc e and differ ent possible scena rios for how the C I obtained the firear m. Rely ing on H ennesse e’s testimony that the offic ers searc hed the CI and his companion, as well as the CI ’s car , for a firea rm prior to the transac tion at the secur e location and observe d the informants during the drive t o an d from Craddock’ s house, the district court conclude d that the firearm wa s p re sent in Craddock’ s house during the drug transac tion, reg ardle ss of how the CI ultimately obtained it. The district court also considere d defe nse counsel’s arg uments that there was no evidenc e that C ra d d o ck knew of the firea rm, see Bailey , 553 F.3d at 944–46 (explaining that the theory of constructive possession require s proof that the defe ndant had knowledg e of the firea

rm and the intention to exercise control over it), and that t h er e we re other people in the house, see id. at 944–45 n.3 (“[W] here the defe ndant is in nonexclusive possession of premises on which illicit contra band is found, it cannot be inferr ed that he knew of the prese nce of such contra

band and had control of it, unless there are other incri m i n ati ng statements or circ umstances tending to buttress such an infere nce.” (alter ations omitted) (interna l quotation marks omitted)). The district court relied on Cradd o ck ’s admission in the fac tual basis of his plea ag ree ment that he sold the firea rm to the CI on J anuar

y 17, 2008, as evide nce that Craddock knew

10No. 09-5822

United States v. Craddock

that the firea

rm was in the house and exercised control over the firea rm by selling it to the CI along with the drug s. Henne ssee’ s testimony reg arding the phone conver sation that took place prior to the transac tion, in which Craddock and the CI arr ang ed that t h e CI would pay Craddock $650 in exchang e for the firearm and the drugs, further sup p o rt s the di strict court’s finding that Craddock possessed the f

irea rm during the drug transac tion that occur red in his house on January 17, 2008. There fore , the district court did not clea rly err in finding tha t the g overnme nt had established by a preponde ranc e of the evidenc e that Craddock possessed the firea rm during the drug transac tion on that day

. Once the district court found that Cr a d d o c k p o s s e s s e d the firea rm during the drug transac tion,

a p resumption arose that the firea rm was connec ted to the transac tion, and the burden shifted to Craddock to show that it was “cle arly improbable” that the firea rm was conn ec t ed wi t h the transac tion. See Darwich , 337 F.3d at 665. “Unlike the four- level enhanc ement under Guidelines § 2K2.1(b)( 6) for a felon who possesses a fi re arm ‘in connec tion with another felony offe nse,’ [§ 2D1.1(b)( 1)] require s only that the defe ndant ‘possess’ the g un during the drug offe nse.” United States v. Minifee , Nos. 09-1528, 09-1530 , 2010 WL 5376861, at *3 (6th Cir. Dec

. 22, 2010) (unpublished dec ision), cert. de nied , 131 S. Ct . 1587 (2011). The district court provided Craddock the opportunity to show that it wa s “c l ea rly improbable” that the firea rm was connec ted with the drug transac tion. I n response , Craddock relied

on the fac t that the firea

rm is not visi ble on the video and was not me ntioned in c onversa tion until t h e C I ca l l ed Henne ssee on the way from Craddock’ s house to the secur e location. Although th e

11No. 09-5822

United States v. Craddock

video raises questions r eg arding exactly how the CI rec eived the firea rm during the exchang e, this

uncer tainty does not make the connec tion between the drug sale and Craddock’ s possession of the firea rm “cle arly improbable.” Cf. United States v. W ilson , 67 F.3d 300, 1995 WL 579566, at *1 (6th Cir. 1995) (unpublished table decisi o n) (re jecting argument that the connec tion was “cle arly i m p ro b able” when the handguns wer e not found in the same room as the drug s). Craddo ck possessed a .32-ca liber Smit h & Wesson revolve r in his house, from which he was selling drug s, for the purpose of selling the revolve r to the same person to whom he was selling drug s. The “incr ease d dang er of violence” from his possession of t he firear m, U.S.S.G. § 2D1.1 cmt. n.3, is not reduc ed by the fac t that he sold it to the CI

. See United States v. Dunlap , 209 F.3d 472, 479 (6th Cir. 2000) (re jecting defe ndant’s challeng e to enhanc ement under § 2D1.1(b)( 1) for rifle sold to CI and stating that the defe ndant “could have ag g ressively deploy ed his rifle

. . . at any moment prior to his transfe r of that wea

pon to the CI ”), abrogation on other grounds recognized in U nited States v. CamachoArellano , 614 F.3d 244, 248 (6th Cir. 2010). Craddock has not pointed to any circ umstances, such as the ty pe of the firea

rm, to sug g est that the firearm was not connec ted t o his drug sales. See id. ; cf. United States v. Zimmer , 14 F.3d 286, 290–91 (6th Cir. 1994) (conc luding that t h e d ef en dant demonstrated that it wa s “cle arly improbable” that his loa ded hunting rifle was connec ted with his “mar ijuana manufacturing operation”). We conc lude that Craddoc k has failed to meet his burden to show t h at it was “cle arly improbable” that the firea rm was connec ted to the drug transac tion. Thus, the district court did not err in applying the two-leve l enhanc ement under § 2D1.1(b)( 1).

12No. 09-5822

United States v. Craddock Finally , we note that Craddock, in a pro se fil i n g in this court, has alleg ed a claim of ineffe ctive assistance of counsel. We g ener ally do not addre ss pro se arguments when the defe ndant is repr esente d by counsel. United S t a t es v. Martinez , 588 F.3d 301, 328 (6th Cir. 2009) (interna l quotation marks omitted), cert. denied , 131 S. Ct. 538 (2010). Nor do we g ener ally revie w on direc t appea l claims of ineffe ctive assistance of counsel beca use “ther e has n o t b een an opportunity to develop and include in the rec ord evidenc e bear ing on the merits of the alleg ations.” United States

v. Martinez , 430 F.3d 317, 338 (6th Cir. 2005), cert. denied , 547 U.S. 1034 (2006). The rec ord and leg al arg uments are not adequa tely develope d for us to decide Craddock’ s ineffe ctive-a ssistance-of

counsel claim at this time. I t is there fore more appropr iate for Craddock to raise the claim in a postconviction proc eeding under 28 U .S.C. § 2255. III. CONCLUSION Be ca u s e t h e d i strict court did not err in apply ing a two-leve l enhanc ement to Craddock’ s offe nse level for possessing a firea rm during a drug offe nse, we AF F IRM the judgme nt of the district court.

13