1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-41151

UNITED STATES OF AMERICA,

Plaintiff, Appellee

versus

MICHAEL R. SIEBE,

Defendant, Appellant

Appeal from the United States District Court

for the Eastern District of Texas

(June 30, 1995)

Before HIGGINBOTHAM and PARKER, Circuit Judges, and TRIMBLE*, District Judge.

TRIMBLE, District Judge.

Appellant Siebe pleaded guilty to possession of cocaine with the intent to distribute and

money laundering. He was sentenced to a term of 480 months imprisonment for the cocaine

possession and to a concurrent 240 month term for money laundering, followed by a five-year

term of supervised r elease. Two issues are raised on appeal. These issues concern the

assignment of two points for possession of a firearm during the commission of a drug trafficking

offense and the court's refusal to assign a two point reduction for acceptance of responsibility.

* District Judge of the Western District of Louisiana, sitting by designation.

Enhancement for Firearm Possession

Appellant first asserts that the district court erred in enhancing his sentence for possession of2

a firearm during the commission of a drug trafficking crime pursuant to U.S.S.G. §1.1(b)(1)

predicated solely upon the presumption that he possessed a firearm because he was a police officer.

This presumption was based upon the fact that Siebe, as a police officer, was assigned a firearm. The

district court's decision on this issue is reviewed for clear error. United States v. Devine , 934 F.2d

1325, 1339, 33 Fed.R.Evid.Serv. 981(5th Cir.(Tex.)Jun 20, 1991)(No.90-8156), cert. denied , 502

U.S. 1065, 112 S.Ct. 954, 117 L.Ed.2d 121 (U.S. Tex., Jan.21, 1992)(No. 91-6564).

§2D1.1(b)(1) of the U.S.S.G. states that a district court may increase a defendant's offense

level by two points if the defendant possessed a dangerous weapon during the commission of a drug

offense. The Go vernment must prove by a preponderance of the evidence that the defendant

possessed such a weapon during t he co mmission of the drug offense. U nited States v. AquileraZapata , 942 F.2d 1209, 1215 (5th Cir. 1990).

To meet this burden, generally the Government must prove that the weapon was found in the

s ame location as the drug or the weapon was a part of the drug transaction. See U nited St ates v.

Hooten

, 942 F.2d 878, 881 (5th Cir.(Tex.) Sep. 10, 1991)(No. 90-8566)(remanded for determination

of whether such evidence linking weapon, drugs and defendant existed); U nited States v. McKeever

,

906 F.2d 129, 134 (5th Cir.(Tex.) Jul 03, 1990)(No. 88-1985)(possession found because house where

gun was found contained materials for processing amphetamine and thus became part of the situs of

the offense); U

nited States v. Vasquez , 874 F.2d 250, 251 (5th Cir.(Tex.) May 19, 1989)(No. 88-

2775)(no possession shown where evidence failed to show

sufficient connection between gun owned by defendant and stored in his home and possession of

drugs several miles away when defendant was not convicted of conspiracy).

The district court in the case at bar based its decision upon a presumption that Siebe was an

armed police officer. This is a case of first impression. This court has not addressed the question of

whether a presumption based upon t he fact that a defendant is a police officer can be used for an1 The only evidence of the drug trafficking activities was

Siebe's own statement, which pursuant to the plea agreement could

not be used against him.

3 enhancement under the Guidelines. In the case at bar there is no evidence absent such a presumption

that Siebe possessed a firearm during the commission of the offense. Although the FBI found ninety

guns in Siebe's residence, they found no drugs or drug paraphernalia in the residence. There was no

evidence of Siebe's drug trafficking activities 1

. Based upon the lack of evidence in this case, the

court finds that the Government did no t sat isfy its burden of proof and this matter will be

REMANDED to the district court for resentenc ing based upon a guideline range which has been

adjusted to delete the two point enhancement for possession of a firearm.

Acceptance of responsibility

The de fendant also objects to the fact that he was not given credit for acceptance of

responsibility. As observed in United States v. Cartwright

, 6 F.3d 294, 304 (5th Cir.(Tex.) Oct 25,

1993)(No. 92-2637), cert. denied

, -U.S.-, 115 S.Ct. 671, 130 L.Ed. 2d 604, 63 USLW 3460 (U.S.,

Dec 12, 1994)(No.94-5410), this court has applied various standards to reviewing

a district court's refusal to credit acceptance of responsibility: clearly erroneous, without foundation,

and great deference. It was noted, however, that "[t]here appears to be no practical difference

between the three standards." Id . Regardless of the formulation, the sentencing guidelines indicate

that [t]he sentencing judge is in a unique position to evaluate a defe ndant's acceptance of

responsibility." U.S.S.G. §3E1.1 (commentary). See also U nited States v. Lister

, 53 F.3d. 66 (5th

Cir.(Tex.) May

05, 1995)(No. 94-40549).

The fa ct s, as stated in the PSR and specifically adopted by the court, demonstrate that the

defendant did not accept responsibility. The fact that a defendant may exercise his right to a trial by

jury is not a reason for denying the two points, but the fact that a defendant has never admitted to4

violating the law is sufficient reason.

The guidelines allow a decrease of two points "[i]f the defendant clearly demonstrates a

recognition and affirmative acceptance of personal responsibility for his criminal conduct." U.S.S.G.

§3E1.1(a). This reduction may be given whether the defendant pleads guilty or is found guilty at trial.

Allowing or disallowing this reduction is within the trial court's discretion.

The district court based its determination upon Siebe's illegal conduct while on pretrial release

in threatening his probation officer, possessing a firearm, and refusing to surrender to authorities on

demand. The district court also noted that Siebe was aware of the FBI investigation for nine months

before he came forward and admitted his responsibility for the theft of cocaine.

The district court's determination that Siebe had not accepted responsibility was not clearly

erroneous. This portion of the district court's decision is AFFIRMED.

Because we find the enhancement for firearm possession to be inappropriate, the sentence is

VACATED and this case is remanded to the district court for proceedings consistent with this

opinion.