USA v. Ian Weigant

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 22, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10049
Non-Argument Calendar
________________________
D.C. Docket No. 8:10-cr-00261-JSM-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IAN BROOK WEIGANT,
a.k.a. Bullet,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 22, 2011)
Before EDMONDSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:

-- 1 of 12 --

Ian Brook Weigant appeals his 78-month sentence for unlawful possession
of a firearm or ammunition by a felon in violation of 18 U.S.C. § 922(g)(1). We
affirm.
I. BACKGROUND
Defendant Weigant pled guilty to a one-count indictment charging him with
possessing a firearm and ammunition while a convicted felon. The firearm listed
in the indictment was a “Glock, model 27, .40 caliber pistol.”
According to the presentence investigation report (“PSI”), a confidential
informant (“CI”) notified the Bradenton Police Department that on April 26, 2010,
Defendant Weigant asked the CI to drive him to Tampa, Florida, to purchase
drugs. The CI agreed to the trip and, while on the way, Weigant told the CI that
Weigant planned to buy some guns for $200 each from the same people who were
going to sell him the drugs. Weigant purchased three Glock handguns while in
Tampa. Upon returning to Bradenton, Wiegant took two of the Glock handguns
with him but left one Glock under the seat in the CI’s vehicle.
The next day, government agents found a “baby Glock” handgun in the CI’s
vehicle but left it in the vehicle after inspecting it. At the agents’ instructions, the
CI used his cell phone to allow agents to monitor a conversation in which the CI
advised Weigant that Weigant had left a handgun in the CI’s vehicle. Agents then
2

-- 2 of 12 --

watched Weigant go to the vehicle to retrieve the handgun.
On April 29, 2010, the CI forwarded the agents a picture that was taken that
same day or the day before in which Weigant was holding a .308 caliber rifle.
Later that day, agents arrested Weigant near his residence. Agents later searched
Weigant’s home and found the same “baby Glock” handgun retrieved from the
CI’s vehicle. The “baby Glock” was loaded with three rounds. The agents also
discovered a box of ammunition for the handgun and a text message in Weigant’s
cell phone in which he offered to sell the .308 caliber rifle for $800. The agents
never recovered the rifle.
The PSI assessed Weigant’s base offense level as 20 for his 18 U.S.C.
§ 922(g)(1) offense. The PSI applied: (1) a two-level increase under U.S.S.G.
§ 2K2.1(b)(1)(A) for possessing between three and seven firearms; (2) a four-level
increase under § 2K2.1(b)(4)(B) for obliterating the serial number of a firearm;
(3) a four-level increase under § 2K2.1(b)(6) for intending to use a firearm in
connection with another felony; and (4) a three-level decrease under § 3E1.1(a)
and (b) for acceptance of responsibility and for timely notifying the government of
his intent to plead guilty. The resulting offense level was 27. After assigning
Weigant 25 criminal history points and a criminal history category of VI, the PSI
3

-- 3 of 12 --

calculated an advisory guidelines sentence of 120 months’ imprisonment.1
Before sentencing, Weigant objected to the two-level increase and denied
possessing any firearm other than the one for which he was convicted. Weigant
also objected to the four-level increases for obliterating a serial number and for
intending to use the firearm in connection with another felony.
At sentencing, the government conceded that the four-level increase for
obliterating a serial number should not apply, and the district court sustained the
objection to the four-level increase for intending to use the firearm in connection
with another felony. Weigant also iterated his objection to the guidelines’
sentencing enhancement for possessing between three and seven firearms.
In response, the government called Detective Gregg Price, who testified that
he had worked regularly with the CI for four years, resulting in approximately ten
arrests. Price had never found the CI to be untruthful, and the CI’s information
was always accurate. The CI called Price after driving Weigant to purchase three
Glock handguns from “some guys in a pickup truck” in Tampa, Florida. Weigant
objected to Price’s testimony about the CI on hearsay grounds unless the
The guidelines range was 130 to 162 months for an offense level of 27 and a criminal1
history category of VI. However, 18 U.S.C. § 924(a)(2) establishes a maximum penalty of ten
years’ imprisonment for a violation of 18 U.S.C. § 922(g). Accordingly, the guidelines sentence
becomes the maximum penalty, or 120 months’ imprisonment. See U.S.S.G. § 5G1.1(a).
4

-- 4 of 12 --

government planned to call the CI as a witness. However, the district court
overruled the objection.
The CI told Price that Weigant purchased two regular-sized Glocks and a
“baby Glock,” which was the handgun recovered during the search of Weigant’s
residence. The CI stated that “Mr. Weigant was upset with two people in
Palmetto, Florida, that had ripped him off for drugs, and he was going to kill them
and take a bus out of town.” Detective Price testified that the CI advised him that
Weigant had left one of the handguns, the “baby Glock,” under the passenger seat
of the CI’s vehicle. Several officers met with the CI, located and photographed the
gun, swabbed it for DNA, and returned it to the vehicle.
Detective Price instructed the CI to confront Weigant about removing the
handgun from the vehicle, while Price listened in through a phone concealed in the
CI’s pocket. Complying with this request, the CI awoke Weigant, who was
staying at the CI’s residence, and stated, “Hey, get up. You left one of your guns
in the car.” Weigant failed to respond, but the CI repeated, “You left one of your
guns in the car. Go get it.” Weigant then exited the house, and several officers
observed Weigant go to the CI’s vehicle, retrieve something from under the
passenger seat, and conceal it under his shirt. Detective Price later executed a
search warrant on the CI’s residence and recovered the handgun.
5

-- 5 of 12 --

Detective Price also testified that the CI had, at Price’s request, asked
Weigant about purchasing a firearm. Weigant sent the CI a photograph of himself
holding a modified rifle with the text message that the gun was “a bad mother
fucker.” The CI forwarded the photograph and message to Detective Price. When
arrested the next day, Weigant was wearing the same shorts depicted in the
photograph. The photograph of Weigant posing with the rifle was admitted into
evidence over Weigant’s objection that it was inflammatory and irrelevant because
the rifle was not one of the firearms that he was charged with possessing.
On cross-examination, Detective Price conceded that the officers recovered
only the baby Glock handgun that Weigant had retrieved from the CI’s vehicle and
that Price had not seen the other two Glock handguns mentioned by the CI.
Additionally, Price could not positively identify when the photograph of Weigant
hold the rifle was taken. Price also testified that the CI had no pending criminal
charges during the time the CI was working for Price on Weigant’s case, but Price
conceded that the CI had been using drugs while working on the case.
Weigant then took the stand himself and testified that, although he
possessed the baby Glock, he did not possess any other gun. Weigant testified that
he did not purchase the baby Glock, but rather the CI had given it to him. Weigant
also testified that he sent the photograph of the rifle to the CI in response to the
6

-- 6 of 12 --

CI’s repeated requests to purchase an automatic weapon. However, Weigant
planned to “just keep [the CI’s] money and tell him he was burned.” Weigant
testified that he had “no intentions of giving that weapon up or – or even selling
that weapon.”
On cross-examination, Weigant testified that the CI had given him the
“baby Glock” handgun but had also asked Weigant for a different gun. On
redirect examination, Weigant clarified that the CI had asked for “an automatic
weapon as compared to what he gave me, the pistol.” The CI gave Weigant the
handgun as a “setup.” Weigant testified that the CI had requested that Weigant
carry the handgun on his person, but Weigant refused. Although he agreed to
remove the handgun from the CI’s vehicle, Weigant testified that the CI placed the
handgun in a briefcase containing Weigant’s belongings.
After hearing the testimony of Detective Price and Weigant, the district
court found that Weigant “did possess three or more firearms” and overruled his
objection. With certain exceptions not relevant to this appeal, the district court
accepted “the other factual statements and guideline applications in the
presentence report as its findings of fact.” Based on a total offense level of 19 and
a criminal history category of VI, the district court calculated the advisory
guidelines range as 63 to 78 months’ imprisonment. Following Weigant’s
7

-- 7 of 12 --

allocution and argument in mitigation, the district court sentenced Weigant to 78
months’ imprisonment. After the pronouncement of sentence, Weigant raised no
new objection “[o]ther than those previously stated.”
II. STANDARD OF REVIEW
We review for clear error the district court’s findings of fact. United States
v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005). A factual finding is clearly
erroneous only if we are “left with a definite and firm conviction that a mistake
has been committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137
(11th Cir. 2004) (quotation omitted).
If a defendant fails to raise his allegation of sentencing error before the
district court, we review the issue only for plain error. United States v. Dudley,
463 F.3d 1221, 1227 (11th Cir. 2006). “Under plain error review, there must be
(1) an error, (2) that is plain, and (3) affects substantial rights. When these three
factors are met, we may exercise discretion and correct the error if it seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.” Id.
(citation omitted).
III. DISCUSSION
On appeal, Weigant argues that the district court clearly erred in finding that
he possessed between three and seven firearms and in applying a two-level
8

-- 8 of 12 --

increase under U.S.S.G. § 2K2.1(b)(1).
A. Absence of Explicit Findings on Reliability and Credibility
For the first time on appeal, Weigant argues that the district court erred by
failing to make explicit findings of reliability and credibility regarding the hearsay
testimony. We thus review this issue only for plain error.
In resolving disputes over facts necessary to establish a sentencing range,
the district court may consider any “information [that] has sufficient indicia of
reliability to support its probable accuracy,” regardless of the rules of evidence
applicable at trial. U.S.S.G. § 6A1.3(a). Hearsay may be admitted at sentencing if
there are “sufficient indicia of reliability, the [district] court makes explicit
findings of fact as to credibility, and the defendant has an opportunity to rebut the
evidence.” United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001)
(quotation marks omitted). “[T]he focus is upon the question of [the hearsay’s]
reliability, which must be determined on a case by case basis.” United States v.
Lee, 68 F.3d 1267, 1275 (11th Cir.1995). “While it may be advisable and in some
instances necessary for a district court to make distinct findings regarding the
reliability of hearsay statements used at sentencing, the absence of such findings
does not necessarily require reversal or remand where the reliability of the
statements is apparent from the record.” United States v. Gordon, 231 F.3d 750,
9

-- 9 of 12 --

761 (11th Cir. 2000).
Because the hearsay statements by the CI were supported by sufficient
indicia of reliability and Weigant had an opportunity to rebut those statements, we
conclude that the district court did not plainly err by relying on the hearsay
statements. Detective Price testified that the CI had been truthful and reliable, and
the CI’s statements were verified when the officers found the handgun under the
passenger seat of the CI’s car.
Moreover, we conclude that the district court implicitly found that the
statements by the CI were more credible than Weigant’s testimony and that this
finding is apparent from the record. Indeed, this credibility finding is supported
by the fact that the CI’s testimony was internally consistent and Weigant’s was not
– Weigant testified both that the CI gave him the baby Glock and that he was
trying to sell the rifle to the CI. Although Weigant explained this inconsistency by
distinguishing between the types of firearms, the district court was free to reject
this explanation. In sum, the district court’s credibility finding is apparent from the
record, and in any event, the asserted error in failing to make explicit findings did
not affect Weigant’s substantial rights.
B. Sufficiency of the Evidence to Support the Enhancement
In determining the offense level of a defendant convicted of unlawful
10

-- 10 of 12 --

possession of a firearm, the Guidelines provide for a two-level increase if the
offense involved between three and seven firearms. U.S.S.G. § 2K2.1(b)(1)(A).
Because Weigant disputed the fact that he possessed three or more firearms, the
government had the burden to prove the disputed fact by a preponderance of the
evidence. See United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005).
“The preponderance of evidence is a relaxed evidentiary standard, however, it
does not grant the court a license to sentence a defendant in the absence of
sufficient evidence when that defendant has properly objected to a factual
conclusion.” Id. (quotation marks omitted).
As described above, the district court did not plainly err in considering the
CI’s hearsay statement that he saw Wiegant with three firearms. The CI’s
credibility was bolstered by his history of providing truthful and relevant
information to Detective Price. Additionally, the government introduced the
photograph in which Wiegant posed with (and offered to sell) a fourth firearm.
Although Wiegant testified that he possessed only one firearm and challenged the
credibility of the hearsay statement by eliciting Detective Price’s concession that
the CI used drugs, the resolution of a “swearing match of witnesses . . . will almost
never be clear error.” Rodriguez, 398 F.3d at 1296. Given the evidence
presented, the district court did not clearly err in finding that Wiegant possessed
11

-- 11 of 12 --

between three and seven firearms.
AFFIRMED.2
Weigant’s request for oral argument is DENIED.2
12

-- 12 of 12 --