USA v. Cornell Clisby

Filing

OPINION filed : Clisby's sentence is AFFIRMED, decision not for publication. Karen Nelson Moore (AUTHORING) and Deborah L. Cook, Circuit Judges; and Benita Y. Pearson, U.S. District Judge for the Northern District of Ohio, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0016n.06
No. 14-3764
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CORNELL CLISBY,
Defendant-Appellant.

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FILED
Jan 08, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
OPINION

Before: MOORE and COOK, Circuit Judges; PEARSON, District Judge.*
KAREN NELSON MOORE, Circuit Judge. Cornell Clisby (“Clisby”) led a year-long
heroin conspiracy.

His co-conspirators included his ex-wife, Dorothy Clisby. When law-

enforcement agents executed a search warrant at Dorothy’s home, where Clisby stashed heroin in
the basement, they found a 9mm Smith & Wesson handgun in her nightstand drawer. The
government argued that Clisby’s sentence should be enhanced by two levels under U.S.S.G.
§ 2D1.1(b)(1) because he possessed a firearm—the Smith & Wesson—during the conspiracy.
The district court agreed and sentenced Clisby to 408 months in prison. Clisby appeals, arguing
that the district court erred when it applied the firearm enhancement. For the reasons set forth
below, we AFFIRM Clisby’s sentence.

*

The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by
designation.

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I. BACKGROUND
A. Facts
Between October 2011 and October 2012, Clisby and six co-defendants conspired to
distribute heroin and other drugs in and around Cincinnati, Ohio. R. 196 (Change of Plea Hr’g
Tr. at 17–19) (Page ID #823–25). Clisby led the conspiracy: he procured the drugs, supplied
them to his co-conspirators, and stashed them in houses around Cincinnati. Id.
Among Clisby’s co-conspirators was his ex-wife, Dorothy. Id. at 18 (Page ID #824); R.
203 (Dorothy Clisby Sentencing Tr. at 26) (Page ID #939).1 The two married in 1992, had one
child, and divorced in 2000. Clisby Presentence Report (“PSR”) ¶ 153. Clisby and Dorothy
maintained a relationship after their divorce.

Clisby would sometimes spend the night at

Dorothy’s apartment on Kingsway Court in Cincinnati, and he gave her money for rent and
living expenses.2 R. 197 (Cornell Clisby Sentencing Tr. at 4) (Page ID #833); R. 203 (Dorothy
Clisby Sentencing Tr. at 27–28) (Page ID #940–41).
Clisby also stored drugs at Dorothy’s home. R. 203 (Dorothy Clisby Sentencing Tr. at
27) (Page ID #940). He kept them in Dorothy’s basement storage unit. Id. at 27–28 (Page ID
#940–41). And on “one or two occasions,” Dorothy retrieved and delivered those drugs to other
people at Clisby’s request. Id. at 31 (Page ID #944).

1

On May 22, 2015, Clisby moved to expand the record in his case to include the transcript of Dorothy’s
sentencing. R. 200 (Mot. to Expand R. for Purposes of Appeal) (Page ID #907). The district court granted Clisby’s
motion on June 2, 2015. R. 201 (6/2/15 Order) (Page ID #910).
2

Dorothy’s apartment was on the second floor of “a four-unit apartment building.” R. 203 (Dorothy Clisby
Sentencing Tr. at 27) (Page ID #940).

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On October 10, 2012, law-enforcement agents executed search warrants at several
locations, including the Kingsway Court residence. PSR ¶¶ 47–48. There, in a nightstand in
Dorothy’s bedroom, they found an unloaded 9mm Smith & Wesson handgun and a magazine
loaded with eleven rounds. Id. ¶ 51.
B. Procedural History
In October 2012, a grand jury indicted Clisby, Dorothy, and five others for conspiring to
distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), and 846.

R. 13

(Indictment at 1–2) (Page ID #175–76). Clisby pleaded guilty to the one count against him
pursuant to a written agreement. R. 92 (Plea Agreement) (Page ID #389); R. 196 (Change of
Plea Hr’g Tr. at 3) (Page ID #809).
Clisby’s Presentence Report added a number of sentencing enhancements to his Base
Offense Level of 32. PSR ¶ 77. Those enhancements included four levels for leading the
conspiracy (under U.S.S.G. § 3B1.1(a)); two levels for maintaining “stash houses” (including the
Kingsway Court residence) to store drugs (U.S.S.G. § 2D1.1(b)(12)); and two levels for
possessing a firearm—the 9 mm handgun that law-enforcement recovered from Dorothy’s
bedroom (U.S.S.G. § 2D1.1(b)(1)). Id. ¶¶ 78–82, 86–87.
Clisby raised several objections to his Presentence Report, including the firearm
enhancement. R. 119 (Def.’s Obj. to Presentence Investigation Report at 1–2) (Page ID #462–
63). He claimed that there was “no evidence [he] utilized the weapon at issue to protect drugs
that were allegedly stored and processed” at Kingsway Court. Id. at 2 (Page ID #463). Clisby

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renewed this objection in his sentencing memorandum. R. 144 (Def.’s Sentencing Mem. and
Mot. For Downward Departure at 5) (Page ID #570).
Clisby and Dorothy were both sentenced on July 28, 2014: Dorothy at 9:55 a.m., and
Clisby at 12:10 p.m. R. 197 (Cornell Clisby Sentencing Tr.) (Page ID #830); R. 203 (Dorothy
Clisby Sentencing Tr.) (Page ID #914).

Because she also received a two-level firearm

enhancement in her Presentence Report, Dorothy testified about the handgun in her nightstand.
R. 203 (Dorothy Clisby Sentencing Tr. at 4, 22) (Page ID #917, 935). She explained that the
firearm was Clisby’s: Dorothy kept it for him after the two “cleaned out his apartment” when he
was prosecuted for selling cocaine roughly twenty years before the instant offense. Id. at 23
(Page ID #936); PSR ¶ 120. For years, Dorothy stashed the firearm in her sister’s attic. R. 203
(Dorothy Clisby Sentencing Tr. at 22–23) (Page ID #935–36). But around 2011 or 2012—when
Dorothy was living in Lincoln Heights, Cincinnati, and Clisby was incarcerated—two teenagers
robbed Dorothy’s residence. Id. at 19–20 (Page ID #932–33). Dorothy, fearing for her safety,
retrieved the firearm from her sister.

Id. at 21–22 (Page ID #934–35).

Dorothy bought

ammunition for the handgun but never fired it or inserted a magazine into it. Id. at 23–24 (Page
ID #936–37). Instead, she kept it in a nightstand in her Lincoln Heights home. Id. at 24 (Page
ID #937).
Sometime thereafter, Dorothy moved to her new home on Kingsway Court, bringing the
nightstand (and handgun) along with her. Id. at 24–25 (Page ID #938–39). At her sentencing,
Dorothy testified that she didn’t know whether Clisby had ever handled the firearm; she wasn’t

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even sure if he knew it was in her nightstand. Id. at 27 (Page ID #940). She did testify,
however, that she was sure that Clisby had “been in [her] nightstands” before. Id. The district
court ultimately concluded that Dorothy did possess the firearm under § 2D1.1(b)(1), and agreed
with the government that she deserved a two-level enhancement. Id. at 44 (Page ID #957). The
district court added another two-level enhancement because it determined that Dorothy’s
Kingsway Court residence was a “stash house.” Id. at 40 (Page ID #953).
The district court reached the same conclusions at Clisby’s sentencing. Clisby’s counsel,
pointing to Dorothy’s testimony just hours earlier, argued that “Miss Clisby ha[d] claimed
responsibility and ownership of the firearm” and that it “[was] not established that Mr. Clisby
possessed this firearm.” R. 197 (Cornell Clisby Sentencing Tr. at 5, 11) (Page ID #834, 840).
The district court disagreed, albeit without clearly articulating whether it believed that Clisby
“actually” or “constructively” possessed the handgun. The firearm, the court noted, was in fact
Clisby’s. Id. at 11 (Page ID #840). It added that Clisby “would have been aware” that the
handgun was in Dorothy’s nightstand, and moreover “that it was not improbable that the weapon
was used for a stash house.” Id. The district court enhanced Clisby’s sentence by two levels for
firearm possession and two levels for maintaining a stash house, and ultimately imposed a
within-Guidelines sentence of 408 months of imprisonment. Id. at 11–12, 56 (Page ID #840–41,
885). Clisby timely appealed. R. 162 (Notice of Appeal) (Page ID #638).

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II. ANALYSIS
Clisby raises just one claim on appeal: that the district court erred by imposing the twolevel firearm enhancement under U.S.S.G. § 2D1.1(b)(1).

He claims that the firearm was

Dorothy’s. And he argues that even if he possessed the firearm, “it was clearly improbable that
the firearm was connected to [his] offense of conviction.” Appellant Br. at 10.
“A district court’s finding that a defendant possessed a firearm during a drug crime is a
factual finding” that we review for clear error. United States v. Benson, 591 F.3d 491, 504 (6th
Cir. 2010) (quoting United States v. Darwich, 337 F.3d 645, 664 (6th Cir. 2003)). “A finding of
fact is clearly erroneous ‘when, although there may be some evidence to support the finding, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.’” United States v. Wheaton, 517 F.3d 350, 367 (6th Cir. 2008) (quoting
Darwich, 337 F.3d at 664).
U.S.S.G. § 2D1.1(b)(1) provides that a defendant’s Base Offense Level should be
increased by two levels “[i]f a dangerous weapon (including a firearm) was possessed.”
U.S.S.G. § 2D1.1(b)(1) (U.S. Sentencing Comm’n 2013).3 Application Note 11 adds: “The
enhancement for weapon possession in subsection (b)(1) reflects the increased danger of
violence when drug traffickers possess weapons. The enhancement should be applied if the
weapon was present, unless it is clearly improbable that the weapon was connected with the
offense.” Id. cmt. n.11(A) (emphasis added).
3

Because Clisby was sentenced on July 28, 2014, we refer to the 2013 Sentencing Guidelines—which were
in effect at his sentencing—unless otherwise noted.

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We have read § 2D1.1(b)(1) and Application Note 11 to entail a two-step burden-shifting
scheme. Our cases delineating the first step, however, have been somewhat mixed. We have
often stated that in order to demonstrate that a defendant merits § 2D1.1(b)(1)’s enhancement,
“[t]he government must prove by a preponderance of the evidence ‘that (1) the defendant
actually or constructively possessed the weapon, and (2) such possession was during the
commission of the offense.’” United States v. Johnson, 344 F.3d 562, 565 (6th Cir. 2003)
(internal quotation marks omitted) (quoting United States v. Pruitt, 156 F.3d 638, 649 (6th Cir.
1998)); accord United States v. Catalan, 499 F.3d 604, 606 (6th Cir. 2007); United States v. Hill,
79 F.3d 1477, 1485 (6th Cir. 1996).

However, the 1991 Sentencing Guidelines Manual

dispensed with the requirement that the government prove possession “during the commission of
the offense.” United States v. Faison, 339 F.3d 518, 520 (6th Cir. 2003); compare U.S.S.G.
§ 2D1.1(b)(1) (U.S. Sentencing Comm’n 2013) (“If a dangerous weapon (including a firearm)
was possessed, increase by 2 levels.”) with U.S.S.G. § 2D1.1(b)(1) (U.S. Sentencing Comm’n
1990) (“If a dangerous weapon (including a firearm) was possessed during commission of the
offense, increase by 2 levels.”).
Accordingly, in order to satisfy § 2D1.1(b)’s first step, “[a]ll that the government need
show is that the dangerous weapon [was] possessed during ‘relevant conduct.’” United States v.
Greeno, 679 F.3d 510, 514 (6th Cir. 2012) (emphasis added) (quoting Faison, 339 F.3d at 520);
accord United States v. Ward, 506 F.3d 468, 475 (6th Cir. 2007). To determine what constitutes
“relevant conduct” under § 2D1.1, we look to § 1B1.3 (“Relevant Conduct (Factors that

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Determine the Guideline Range)”).

Section 1B1.3 provides that “specific offense

characteristics”—such as whether a firearm “was possessed” within the meaning of
§ 2D1.1(b)(1)—“shall be determined on the basis of”:
[A]ll acts and omissions committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the defendant; and . . . in the case of a
jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in concert with others, whether or not
charged as a conspiracy), all reasonably foreseeable acts and omissions of others
in furtherance of the jointly undertaken criminal activity, that occurred during the
commission of the offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that offense . . . .
U.S.S.G. § 1B1.3(a); see Ward, 506 F.3d at 475 (consulting § 1B1.3 to determine what conduct
is “relevant” for purposes of § 2D1.1(b)(1) enhancement); Faison, 339 F.3d at 520 (same).
The second step is clearer. If the government proves that a defendant possessed a firearm
“during ‘relevant conduct,’” Greeno, 679 F.3d at 514, then “the burden shifts to the defendant to
establish that it is clearly improbable that the weapon was connected to the offense.” Johnson,
344 F.3d at 565 (internal quotation marks and citation omitted).

In other words, “[t]he

government is not required to show that the firearm possession, once shown, is related to the
drug crime.” Id. at 567. Rather, if the government proves by a preponderance that the defendant
possessed a firearm, “a presumption arises that ‘the weapon was connected to the offense.’”
Wheaton, 517 F.3d at 367 (quoting United States v. Hough, 276 F.3d 884, 894 (6th Cir. 2002));
United States v. Maynard, 94 F. App’x 287, 292 (6th Cir. 2004). A defendant can rebut that
presumption by “present[ing] evidence, not mere argument” proving that it is “clearly
improbable” that the firearm is connected to the offense. Greeno, 679 F.3d at 514. “[T]he
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‘clearly improbable’ standard is a difficult burden to meet in the first instance at sentencing”;
moreover, on appeal, we review the district court’s application of § 2D1.1(b)(1) for clear error.
Johnson, 344 F.3d at 567.
Applying these principles, we hold that the district court did not clearly err when it
enhanced Clisby’s offense level by two levels under § 2D1.1(b)(1). The government proved by a
preponderance that Clisby possessed the 9mm Smith & Wesson handgun, thereby establishing
the presumption that the firearm was connected to the offense. Clisby failed to show that it was
clearly improbable that that firearm was connected to the heroin conspiracy. We address each
issue in turn.
We begin with the first step: whether the government proved by a preponderance of the
evidence that Clisby possessed the firearm during “relevant conduct.” In his brief, Clisby argues
“that Dorothy’s testimony [at her sentencing] establishes that it was she, not Clisby, who
possessed the gun.” Appellant Br. at 25. By his logic, Dorothy (and only Dorothy) deserves
§ 2D1.1(b)(1)’s enhancement because she kept the firearm for many years. That argument is
unavailing, because a co-conspirator’s possession of a firearm can, in some circumstances, be
imputed to another co-conspirator. See, e.g., United States v. Williams, 176 F.3d 301, 307 (6th
Cir. 1999). Here too, our cases explaining when and in what circumstances this can occur have
taken different approaches.
Some of our cases have focused on whether a co-conspirator’s possession—and
possession alone—was “reasonably foreseeable” to another co-conspirator. See, e.g., Johnson,

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344 F.3d at 565 (quoting United States v. Owusu, 199 F.3d 329, 347 (6th Cir. 2000) (“If the
offense committed is part of a conspiracy, it is sufficient if the government establishes ‘that a
member of the conspiracy possessed the firearm and that the member’s possession was
reasonably foreseeable by other members in the conspiracy.’”); Williams, 176 F.3d at 307 (“[I]f
it is reasonably foreseeable to a defendant that his co-conspirator possesses a gun, constructive
possession is attributable to him as well.”); United States v. Chalkias, 971 F.2d 1206, 1217 (6th
Cir. 1992) (“The possession of a gun by one co-conspirator is attributable to another coconspirator if such possession constitutes reasonably foreseeable conduct.”). That formulation
understates the definition of “relevant conduct” in § 1B1.3. Section 1B1.3 defines relevant
conduct “in the case of a jointly undertaken criminal activity” as “all reasonably foreseeable acts
and omissions of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G.
§ 1B1.3(a)(1) (emphasis added). Thus, it is not enough for the government to prove that a coconspirator’s possession of a firearm was reasonably foreseeable to another co-conspirator.
Rather, we think the interpretation more faithful to § 1B1.3—as it applies to § 2D1.1(b)(1)—is
that the government must prove by a preponderance that a co-conspirator’s possession in
furtherance of the conspiracy was reasonably foreseeable. See, e.g., Benson, 591 F.3d at 504
(“The § 2D1.1(b)(1) firearms enhancement can be applied to a defendant’s sentence if the
defendant could have reasonably foreseen that a co-conspirator had weapons in connection to the
drug conspiracy.”); United States v. Woods, 604 F.3d 286, 290 (6th Cir. 2010) (“Under such
circumstances, the possession of a firearm by a coconspirator must (1) be connected to the

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conspiracy and (2) be reasonably foreseeable.”). In other words, there must be some nexus
between the firearm and the conspiracy in order for one co-conspirator’s possession to be
imputed to another.
This approach is fully consistent with Application Note 11’s command that
§ 2D1.1(b)(1)’s “enhancement should be applied if the weapon was present.”

U.S.S.G.

§ 2D1.1(b)(1) cmt. n.11(A) (emphasis added). That Note, we have observed, “deals only with
the question of whether a firearm is connected to the offense,” Woods, 604 F.3d at 290—which
is a question we consider under the second step of § 2D1.1(b)(1)’s test. “It has no bearing on the
additional requirement that the presence of such a firearm must also be reasonably foreseeable to
the defendant,” id.—which is a requirement of the first step when analyzing possession via a coconspirator.
Accordingly, whether Dorothy’s possession of the firearm can be attributed to Clisby, her
co-conspirator, turns on the following question: Was it reasonably foreseeable to Clisby that
Dorothy would possess a firearm in connection with their heroin conspiracy? For the purposes
of this appeal, we must answer a narrower question: Considering “the entire evidence,” are we
“left with the definite and firm conviction that” the district court clearly erred by concluding that
Clisby possessed the firearm within the meaning of § 2D1.1(b)(1)? Wheaton, 517 F.3d at 367
(quoting Darwich, 337 F.3d at 664); see Woods, 604 F.3d at 290 (citation omitted) (“Whether a
co-conspirator’s actions were reasonably foreseeable is a factual finding reviewed for clear
error.”).

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We conclude that the district court did not clearly err. To begin, Clisby knew that
Dorothy possessed a firearm. Dorothy’s testimony at her sentencing confirms that Clisby often
spent the night at her residence, and that he had been through her nightstand where she kept the
firearm. Moreover, Clisby gave that firearm to Dorothy (albeit many years ago). Based on these
facts, Clisby could reasonably foresee that Dorothy possessed a handgun.
That, however, does not end our inquiry. We must consider whether it was reasonably
foreseeable to Clisby that Dorothy would possess a handgun in connection with their heroin
conspiracy.

This is a closer question, but evidence in the record links the firearm to the

conspiracy. Again, we look to § 1B1.3 to determine what conduct is relevant for the purpose of
applying § 2D1.1(b)(1). With respect to “jointly undertaken criminal activity,” § 1B1.3 deems
the following “relevant”:

“[A]ll reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity, that occurred during the commission of
the offense of conviction, in preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense . . . .” U.S.S.G. § 1B1.3(a)(1)(B).
Dorothy’s residence at Kingsway Court was not just her home; it was a stash house
within the meaning of U.S.S.G. § 2D1.1(b)(12).

PSR ¶¶ 80–82; R. 197 (Cornell Clisby

Sentencing Tr. at 11–12) (Page ID #840–41); R. 203 (Dorothy Clisby Sentencing Tr. at 40)
(Page ID #953).

Importantly, Clisby does not challenge the district court’s application of

§ 2D1.1(b)(12) on appeal.

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That leaves us with three significant facts.

First, Clisby spent time at Dorothy’s

Kingsway Court residence and went through her nightstand, where she kept the firearm that
Clisby had given her. Second, Clisby stored drugs in the basement of Kingsway Court. Finally,
Dorothy—who kept the firearm in her residence for the duration of the charged conspiracy—
knew that Clisby kept drugs in the basement because on “one or two occasions” Clisby directed
Dorothy to deliver those drugs to other people. R. 203 (Dorothy Clisby Sentencing Tr. at 31)
(Page ID #944). Clisby, then, could not only reasonably foresee that Dorothy possessed a
firearm; he could reasonably foresee that she possessed a firearm in a stash house. In other
words, a preponderance of the evidence demonstrates that it was reasonably foreseeable to
Clisby that Dorothy would possess a handgun “in furtherance of” their conspiracy. U.S.S.G.
§ 1B1.3(a)(1)(B). The district court did not clearly err when it reached the same conclusion.
Moving to the second step of § 2D1.1(b)(1)’s test, we conclude that Clisby failed to show
that it was clearly improbable that the firearm was connected to his heroin conspiracy. Because
the government demonstrated that Clisby possessed a firearm within the meaning of
§ 2D1.1(b)(1), “a presumption ar[ose] that ‘the weapon was connected to the offense.’”
Wheaton, 517 F.3d at 367 (quoting Hough, 276 F.3d at 894).

Clisby could rebut that

presumption by “present[ing] evidence, not mere argument” proving that it was “clearly
improbable” that the firearm was connected to his offense. Greeno, 679 F.3d at 514. He failed
to do so.

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“In determining whether a defendant has rebutted this heavy presumption,” Maynard, 94
F. App’x at 292, we consider several factors:
(1) the type of firearm involved; (2) the accessibility of the weapon to the
defendant; (3) the presence of ammunition; (4) the proximity of the weapon to
illicit drugs, proceeds, or paraphernalia; (5) the defendant’s evidence concerning
the use of the weapon; and (6) whether the defendant was actually engaged in
drug-trafficking, rather than mere manufacturing or possession.
Greeno, 679 F.3d at 515 (citations omitted). These factors all cut against Clisby. First, the
firearm in question was a 9mm handgun—a type of weapon that Clisby himself admits “is
commonly used in connection with drug offenses.” Appellant Br. at 25. Second, Clisby had
ready access to the weapon: he routinely visited the Kingsway Court residence, both to store
drugs in the basement and to spend the night in Dorothy’s home. R. 197 (Cornell Clisby
Sentencing Tr. at 4) (Page ID #833); R. 203 (Dorothy Clisby Sentencing Tr. at 27–28) (Page ID
#940–41). Third, although Dorothy avers that she kept the handgun unloaded, law-enforcement
officers found a loaded magazine in the nightstand drawer alongside the firearm.

Fourth,

Dorothy kept the handgun in the same building where Clisby stored drugs that were distributed
during the conspiracy. Fifth, although Clisby has repeatedly argued that he does not merit
§ 2D1.1(b)(1)’s enhancement because Dorothy possessed the firearm, that argument fails
because she was Clisby’s co-conspirator: as discussed supra, her possession of the gun is
imputed to Clisby. Finally, Clisby was a drug trafficker, not just a drug possessor; indeed, he led
the conspiracy at issue in this case. Based on these facts, Clisby failed to show that it was clearly
improbable that the firearm in Dorothy’s nightstand was connected to the heroin conspiracy he

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led. In turn, we cannot say that the district court clearly erred by enhancing Clisby’s sentence
under § 2D1.1(b)(1).
III. CONCLUSION
For the reasons set forth above, we AFFIRM Clisby’s sentence.

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