United States v. Thomas Fisher

Filing

PER CURIAM OPINION FILED - THE COURT: LAVENSKI R. SMITH, STEVEN M. COLLOTON and BOBBY E. SHEPHERD (UNPUBLISHED) [3783808] [10-2136]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-2136
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United States of America,
Appellee,
v.
Thomas Michael Fisher,
Appellant.

*
*
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* Appeal from the United States
* District Court for the
* Northern District of Iowa.
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*
[UNPUBLISHED]
*
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Submitted: October 18, 2010
Filed: May 4, 2011
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Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Thomas Fisher pleaded guilty to one count of manufacturing and attempting to
manufacture methamphetamine after having two felony drug convictions, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846, and 851. The district court1 sentenced
him to 188 months' imprisonment. On appeal, Fisher argues that the district court
erred in applying a two-level sentencing enhancement for possessing a dangerous
weapon in connection with a drug offense, pursuant to U.S.S.G. § 2D1.1. For the
following reasons, we affirm.
1

The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

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I. Background
On November 19, 2008, deputies from the Linn County Sheriff's Office stopped
Fisher's truck after receiving a report that individuals in that truck had been tampering
with an anhydrous ammonia tank in rural Linn County, Iowa. The deputies later
determined that Fisher, the driver of the truck, and his passengers had attempted to
steal anhydrous ammonia for use in manufacturing methamphetamine. After taking
Fisher and the passengers into custody, the deputies searched Fisher's truck and found,
among other items, two samurai swords (each one sheathed and measuring between
three and four feet in length) in the truck's backseat, along with several items
consistent with manufacturing methamphetamine.
On February 10, 2009, officers from the Cedar Rapids Police Department
executed a search warrant at Fisher's residence and found an "active
methamphetamine laboratory." Fisher admitted to manufacturing and selling
methamphetamine. On April 27, 2009, officers from the Cedar Rapids Police
Department executed a search warrant at an apartment that Fisher rented and found
another "active methamphetamine laboratory"; Fisher was not present during the
search.
As a result of these incidents, Fisher pleaded guilty to one count of
manufacturing and attempting to manufacture methamphetamine after having two
felony drug convictions. The presentence investigation report (PSR) calculated
Fisher's base offense level to be 36 based on the drug quantity attributable to him. The
PSR further recommended a two-level enhancement, pursuant to U.S.S.G.
§ 2D1.1(b)(1), for possessing a dangerous weapon—the two samurai swords—in the
backseat of his truck during the attempted theft of anhydrous ammonia. In addition,
the PSR recommended a three-level downward adjustment for acceptance of
responsibility. This adjusted offense level of 35, when combined with a criminal

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history category of IV, produced an advisory Guidelines sentencing range of 235 to
293 months.
At sentencing, Fisher agreed to the PSR's base offense level of 36 but objected
to the two-level dangerous weapon enhancement. He did not dispute that he possessed
the swords, but he asserted that he acquired them shortly before November 19, 2008,
only as a part of his knife collection.2 Thus, he argued that the government had not
met its burden to show that it was not "clearly improbable that the weapon was
connected to the offense." The district court overruled his objection to the
enhancement, stating:
The Court makes the finding that it is not clearly improbable that
the defendant's samurai sword possession was connected with his
manufacturing and attempted manufacture of methamphetamine. It's very
unusual to drive around with a truck that has manufacturing
paraphernalia in it with samurai swords. None of the other knives that he
was collecting were in the truck. They were at the house. And clearly,
there's—I mean, you just—nobody drives with those in their truck,
unless they're going to a show or something like that. You don't keep
your collection in your truck, especially when the rest of your knives are
at your house.
And in terms of the timing, they were in the truck while Mr. Fisher
and his pals were attempting to steal anhydrous ammonia to make
methamphetamine. It's not uncommon for meth manufacturers to have
weapons to protect themselves and their product, and so I don't find that

2

At the sentencing hearing, Fisher's counsel stated that the Cedar Rapids police
found "over 70 knives" during a "raid on the defendant's house in February of 2009."
He referred to them as part of Fisher's "collection." The PSR did not mention these
knives among the items recovered during the February 10, 2009 search; they were not
introduced as evidence at the hearing; and they did not serve as a basis for any
enhancement.
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it's clearly improbable that the samurai sword possession was connected
with his offense and relevant conduct . . . .
In addition to applying the two-level dangerous weapon enhancement, the
district court granted the recommended three-level reduction for acceptance of
responsibility. Finally, the district court granted the government's motion for a
two-level downward departure for providing substantial assistance to the government,
pursuant to U.S.S.G. § 5K1.1.
Finally, the district court noted that it would have sentenced Fisher to the same
term of imprisonment regardless of whether the two-level dangerous weapon
enhancement should apply. Not accounting for the two-level substantial assistance
departure, the court stated:
First of all, 235 [months] would have been the—the overlap
sentence for the offense. Had I not scored the swords, he would have
been a 33/4 [offense level/criminal history category]. And had—and
scoring of the swords, he was a 35/4. So the Court would have sentenced
him at 235 months in any event, which is the high end of 33/4 and the
low end of 35/4—the high end of 33/4 and the low end of 35/4.
Consistent with this statement and after accounting for the two-level substantial
assistance departure, the district court sentenced Fisher to 188 months, which was the
point where the two Guidelines ranges—with and without the dangerous weapons
enhancement—overlapped.
II. Discussion
On appeal, Fisher argues that the district court clearly erred in finding that it
was not clearly improbable that the samurai swords were connected to his drug
offense, and, thus, he contends that the court erroneously applied the sentencing
enhancement under U.S.S.G. § 2D1.1(b)(1). Fisher agrees that he possessed the
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swords and does not dispute that these samurai swords can be considered "dangerous
weapons." Instead, he argues that the government failed to produce evidence that they
were connected to his methamphetamine manufacturing activities (e.g., by
"brandish[ing]" the swords or having them "in [his] hands during any
methamphetamine-related activity"). Further, he argues that he was merely a knife
collector and had obtained the swords shortly before November 19, 2008, for his
collection.
We review the district court's interpretation of the Guidelines de novo and its
factual findings for clear error. United States v. Vickers, 528 F.3d 1116, 1120 (8th Cir.
2008). A factual finding that a weapon was connected to the drug offense will only be
reversed "if the entire record definitely and firmly establishes that a mistake has been
made." United States v. Anderson, 618 F.3d 873, 879 (8th Cir. 2010).
The advisory Sentencing Guidelines provide for a two-level enhancement for
drug offenses when "a dangerous weapon (including a firearm) was possessed."
U.S.S.G. § 2D1.1(b)(1). Application Note 3 to this enhancement states that "[t]he
adjustment should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense." The government bears
the burden of proving that an enhancement should apply to the defendant's sentence.
United States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008). Thus, in the case of
§ 2D1.1(b)(1), "the government must prove two things—(1) the [weapon] was
possessed and (2) it was not clearly improbable that the weapon was connected to the
drug offense." Anderson, 618 F.3d at 880. Here, Fisher does not dispute that he
possessed the samurai swords. He argues only that the district court clearly erred in
finding that "it was not clearly improbable that the weapon was connected" to his
methamphetamine manufacturing offense.
Although the government must prove that it was not clearly improbable that the
weapon was connected to the drug activity, we have recognized that "[t]his Guidelines
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enhancement creates a very low bar for the government to hurdle." Id. at 882. For
example, we have long held that the government can satisfy its burden by
"establish[ing] that 'a temporal and spacial relation existed between the weapon, the
drug trafficking activity, and the defendant.'" United States v. Burling, 420 F.3d 745,
750 (8th Cir. 2005) (quoting United States v. Atkins, 250 F.3d 1203, 1214 (8th Cir.
2001)); see also United States v. Payne, 81 F.3d 759, 763 (8th Cir. 1996) (applying
the same test). The government does not have to produce evidence showing that the
defendant "used or even touched a weapon." United States v. Fladten, 230 F.3d 1083,
1086 (8th Cir. 2000) (per curiam). Instead, "[e]vidence that the weapon was in the
same location as drugs or drug paraphernalia usually suffices." Id.
In a factually similar case, we upheld the district court's decision to apply an
enhancement under § 2D1.1(b)(1) when the defendant had a machete in the vehicle
that he used to transport materials for manufacturing methamphetamine. Burling, 420
F.3d at 750. The weapon was "partially hidden between the seat" and "within reaching
distance from the driver's seat." Id. Although the defendant only disputed whether his
machete was a "dangerous weapon," we found no clear error because "the machete
serves a dual purpose—a weapon, or a harvesting tool." Id. Under those
circumstances, we noted that "it is not clearly improbable that the machete was
connected to [the defendant's] attempt to manufacture methamphetamine." Id.
The district court did not clearly err by finding that it was not clearly
improbable that the samurai swords were connected to Fisher's methamphetamine
manufacturing activity. The PSR3 and the government's exhibits at the sentencing
hearing showed that Fisher had the samurai swords in the backseat of his truck on
November 19, 2008, when Fisher attempted to steal anhydrous ammonia in order to
3

Fisher did not object to the facts contained in the PSR describing the
November 19, 2008 incident when the samurai swords were found, and thus, these
facts can be accepted as true for sentencing purposes. See United States v. Davis, 583
F.3d 1081, 1095 (8th Cir. 2009).
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manufacture methamphetamine. As in Burling, Fisher could have easily accessed the
swords. Moreover, several other items used to manufacture methamphetamine were
located in Fisher's truck along with the swords. Thus, Fisher, the swords, and the
drug-related items and activities were very closely related in space and time to one
another. The court did not have to find that Fisher ever "brandished" or otherwise used
the swords. In addition, as in Burling, the district court discounted Fisher's alternative
explanation for the swords' presence, stating that, although Fisher collected knives,
he did not carry his knife collection in his truck, especially while attempting to steal
materials to make methamphetamine. Accordingly, we conclude that the district court
correctly found that it was not clearly improbable that the swords were connected to
Fisher's methamphetamine manufacturing activity.
Even if Fisher could show that the district court clearly erred, this error would
be harmless. Errors in the application of the Guidelines do not require a remand for
resentencing when the error is harmless. United States v. Johnston, 533 F.3d 972, 978
(8th Cir. 2008). "Incorrect application of the Guidelines is harmless error where the
district court specifies the resolution of a particular issue did not affect the ultimate
determination of a sentence." United States v. Straw, 616 F.3d 737, 742 (8th Cir.
2010). For example, an error might be harmless "where the resulting sentence lies in
the overlap between the correct and incorrect guidelines range." Johnston, 533 F.3d
at 978 (quotation and citation omitted). Under those circumstances, however, "to
support a finding of harmless error, the record clearly must show not only that the
district court intended to provide an alternative sentence, but also that the alternative
sentence is based on an identifiable, correctly calculated guidelines range." Id.
(quotation and citation omitted).
In the present case, the district court sentenced Fisher to 188 months'
imprisonment, the point at which the Guidelines ranges with and without the
dangerous weapon enhancement overlapped. The transcript from the sentencing

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hearing shows that the district court would have given Fisher the same sentence
whether it applied the enhancement. The court stated:
First of all, 235 [months] would have been the—the overlap
sentence for the offense. Had I not scored the swords, he would have
been a 33/4 [offense level/criminal history category]. And had—and
scoring of the swords, he was a 35/4. So the Court would have sentenced
him at 235 months in any event, which is the high end of 33/4 and the
low end of 35/4—the high end of 33/4 and the low end of 35/4.
Although the ranges described in this statement did not account for the two-level
downward departure for providing substantial assistance, the district court correctly
calculated both Guidelines ranges. Before applying the § 5K1.1departure, the range
would have been 188 to 235 months without the dangerous weapon enhancement and
235 to 293 months with the enhancement. After applying the departure, the range
would have been 151 to 188 months without the dangerous weapon enhancement and
188 to 235 months with the enhancement. The district court sentenced Fisher to 188
months, and the record indicates that the court would have given this sentence with
or without the dangerous weapon enhancement. Thus, even if Fisher could show error
in applying the enhancement, such error would be harmless.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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