United States of America v. BOBBY WEBB (01-5682) and PRESTON WEBB (01-5683)

*The Honorable David D. Dowd, Jr., Senior United States District
Judge for the Northern District of Ohio, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0228P (6th Cir.)
File Name: 03a0228p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BOBBY WEBB (01-5682) and
PRESTON WEBB (01-5683),
Defendants-Appellants.
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Nos. 01-5682/5683
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 00-20130—Jon Phipps McCalla, District Judge.
Submitted: June 20, 2003
Decided and Filed: July 11, 2003
Before: BOGGS and GILMAN, Circuit Judges; DOWD,
Senior District Judge.*
_________________
COUNSEL
ON BRIEF: James O. Marty, Brett B. Stein, FINLEY &
STEIN, Memphis, Tennessee, for Appellants. Stuart J.
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Canale, ASSISTANT UNITED STATES ATTORNEY,
Memphis, Tennessee, for Appellee.
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OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Bobby Webb
and his son, Preston Webb, pled guilty to both conspiring to
possess and with actually possessing Dilaudid tablets, each
with the intent to distribute, in violation of 21 U.S.C. §§ 846
and 841(a)(1). On appeal, the Webbs argue that the district
court improperly (1) enhanced their offense levels for
possession of a firearm under United States Sentencing
Guidelines § 2D1.1(b)(1); (2) denied them a reduction for
acceptance of responsibility under Sentencing Guidelines
§ 3E1.1; and (3) considered the full weight of the tablets in
computing their offense levels. In addition, Preston Webb
argues that the district court improperly enhanced his offense
level for being a manager of the conspiracy. For the reasons
set forth below, we AFFIRM the judgments of the district
court.
I. BACKGROUND
A. Factual background
Bobby and Preston Webb conducted a fencing operation in
Memphis, Tennessee by paying for stolen merchandise with
Dilaudid pills, a synthetic heroin. Law enforcement officers
began investigating the Webbs in February of 2000. On
March 29, 2000, federal search and seizure warrants were
served on the Webbs’ businesses and residences. At the
business address where all of the undercover purchases of
Dilaudid had been made, the officers recovered stolen
merchandise, Dilaudid tablets, a Smith & Wesson .38-caliber
revolver, and a disassembled 9mm submachine gun.

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Nos. 01-5682/5683 Webb v. United States 3
The officers also interviewed Preston Webb at the time of
the search. He admitted that he and his father, Bobby, had
been dealing in Dilaudid for approximately three months.
Bobby Webb also spoke to the officers on the day of the
search. Later that spring, local law enforcement officers
received information that the Webbs were still dealing drugs.
On June 15, 2000, the Webbs were arrested and a second
search took place at their business. More Dilaudid tablets
were seized at that time.
B. Procedural background
A superseding indictment on October 24, 2000 charged the
Webbs both with conspiring to possess and with actually
possessing Dilaudid, each with the intent to distribute. On
February 8, 2001, both defendants pled guilty to all counts.
The Webbs’ sentencing hearing took place in May of 2001.
Although they did not object to the facts as presented in the
Presentence Report, they filed four objections to the
recommendations contained therein that mirror the arguments
they make on appeal. The probation officer then filed an
addendum to the Presentence Report, responding to the
Webbs’ objections. After conducting a sentencing hearing,
the district court adopted the Presentence Report as amended
and sentenced both Bobby and Preston Webb to 235 months
of imprisonment. This timely appeal followed.
II. ANALYSIS
A. Standard of review
In reviewing a district court’s application of the Sentencing
Guidelines, we “accept the findings of fact of the district court
unless they are clearly erroneous and . . . give due deference
to the district court’s application of the guidelines to the
facts.” 18 U.S.C. § 3742(e). In light of Buford v. United
States, 532 U.S. 59, 63-66 (2001) (holding that the district
court was entitled to deference in its application of § 4B1.2 of
the Sentencing Guidelines in a case where the underlying
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facts were undisputed), this court has held that our standard
of review of a district court’s application of provisions of the
Sentencing Guidelines to the facts should be treated
deferentially and should not be disturbed unless clearly
erroneous. United States v. Jackson-Randolph, 282 F.3d 369,
389-90 (6th Cir. 2002) (holding that the Supreme Court’s
reasoning in Buford leads to the use of a deferential standard
of review in the application of the Sentencing Guidelines
under circumstances involving fact-bound determinations).
B. The district court did not err in enhancing the
defendants’ offense levels for possession of a firearm
under Sentencing Guidelines § 2D1.1(b)(1)
The Webbs argue that the district court erred in enhancing
their sentences for possession of a firearm because the
government did not present evidence sufficient to establish
that they were aware of the presence of the .38-caliber
revolver in their store. In support of their contention, the
Webbs point to the sentencing-hearing testimony of Joyce
Webb, Bobby’s wife and Preston’s mother, to the effect that
the gun belonged to her.
Under Sentencing Guidelines § 2D1.1(b)(1), the offense
level may be increased by two levels if a dangerous weapon
was possessed during an offense involving drugs. The
commentary provides that the enhancement “should be
applied if the weapon was present, unless it was clearly
improbable that the weapon was connected with the offense.”
U.S. Sentencing Guidelines Manual § 2D1.1, cmt. n.3 (2000).
To start with, the government must prove by a preponderance
of the evidence that the defendant actually or constructively
possessed the weapon and that such possession was during
the commission of an offense involving drugs. United States
v. Dunlap, 209 F.3d 472, 477 (6th Cir. 2000). The burden
then shifts to the defendant to prove that any connection
between the drug offense and the weapon is clearly
improbable. Id.

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Nos. 01-5682/5683 Webb v. United States 5
At the sentencing hearing, the district court considered
Joyce Webb’s testimony in its entirety, but found it
unconvincing. She could not identify the type of gun found
at the defendants’ place of business or even describe what the
gun looked like. Although she claimed that she kept it for
protection at her restaurant, the gun was found at the
defendants’ adjacent business location where all of the
undercover drug transactions had occurred. Further, there
was ample evidence provided by the investigating officers of
where the gun was located in relation to the Webbs’ drug
dealing. The district court found that the government had met
its burden and that the Webbs had not demonstrated that the
gun’s connection with the offense was clearly improbable.
Because they rely on essentially the same arguments and
evidence on appeal, the Webbs have not demonstrated that the
district court’s application of the enhancement was clearly
erroneous.
C. The district court did not err in denying the
defendants a reduction for acceptance of
responsibility under Sentencing Guidelines § 3E1.1
As discussed in Part II.A. above, the Supreme Court in
Buford applied a deferential standard of review to a district
court’s application of Sentencing Guidelines § 4B1.2 to the
undisputed facts. Buford, 532 U.S. at 64-65. The Court noted
“the fact-bound nature of the legal decision, the
comparatively greater expertise of the District Court, and the
limited value of uniform court of appeals precedent . . . .” Id.
at 66. Following the reasoning of Buford and of this court in
Jackson-Randoph, 282 F.3d at 388-90, an unreported decision
has applied the deferential standard of review to § 3E1.1.
United States v. Miller, No. 01-5581, 2002 WL 1894647, *5
(6th Cir. Aug. 15, 2002) (holding that the district court’s
denial of a reduction for acceptance of responsibility is “a
factual question, and should be accorded great deference and
should not be disturbed unless clearly erroneous.”). Section
3E1.1's commentary further supports the use of a deferential
standard of review: “The sentencing judge is in a unique
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position to evaluate a defendant’s acceptance of
responsibility. For this reason, the determination of the
sentencing judge is entitled to great deference on review.”
U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n.5 (2000).
Consequently, the Webbs’ reliance on the older cases of
United States v. Jeter, 191 F.3d 637 (6th Cir. 1999)
(reviewing de novo an application of the acceptance of
responsibility adjustment to uncontested facts), and United
States v. Tilford, 224 F.3d 865 (6th Cir. 2000) (same), and the
government’s reliance on United States v. Childers, 86 F.3d
562 (6th Cir. 1996) (same), are both misplaced. The newer
deferential standard adopted by Buford and its progeny is now
controlling.
In response to the defendants’ objection regarding the
proposed denial of a reduction for acceptance of
responsibility, the probation officer filed an addendum to the
Presentence Report. Both Bobby and Preston were
interviewed by the probation officer regarding their
acceptance of responsibility. Bobby expressed remorse, but
also disagreed with the factual accuracy of his conduct as
related in the Presentence Report. The probation officer
found that Bobby’s statements were inconsistent with his
guilty plea and his failure to earlier object to the facts as
presented in the Presentence Report. See U.S. Sentencing
Guidelines Manual § 3E1.1, cmt. n.1(a) (2000) (“[A]
defendant who falsely denies, or frivolously contests, relevant
conduct that the court determines to be true has acted in a
manner inconsistent with acceptance of responsibility.”).
The denial of Preston’s request for an acceptance-of-
responsibility reduction is a closer case. Although Preston
expressed greater remorse than Bobby and did not engage in
drug trafficking subsequent to his guilty plea, the probation
officer nevertheless recommended that the reduction be
denied based upon Preston’s admission of continuing illegal
conduct after the initial search warrants were executed in
March of 2000. The probation officer concluded that

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Nos. 01-5682/5683 Webb v. United States 7
Preston’s ongoing criminal activity up to the time of his arrest
in June was inconsistent with the acceptance of responsibility.
Using the appropriate standard of review, we conclude that
the district court did not err in determining that Preston’s
conduct was inconsistent with the acceptance of
responsibility.
As § 3E1.1 of the Sentencing Guidelines provides, the
district court is to make an acceptance-of-responsibility
determination based upon the facts presented. The entry of a
guilty plea does not obligate the court to find that a reduction
is appropriate. Id., cmt. n.3. In this case, the district court
adopted the Presentence Report as it had been supplemented
in response to the defendants’ objections. Based upon the
evidence in the record, the district court’s finding was not
clearly erroneous.
D. The district court did not err in calculating the weight
of the Dilaudid tablets for purposes of determining
the defendants’ base offense levels
Although the Webbs argue that the conversion table in
Sentencing Guidelines § 2D1.1 is unfair and in violation of
the Fourteenth Amendment, they fail to provide any support
for their argument. In any event, the district court properly
considered the weight of the Dilaudid tablets in determining
the Webbs’ base offense level. The Sentencing Guidelines
provide that “[u]nless otherwise specified, the weight of a
controlled substance set forth in the table refers to the entire
weight of any mixture or substance containing a detectable
amount of the controlled substance.” Id., § 2D1.1(c)(A).
This court held in United States v. Landers, 39 F.3d 643, 646
(6th Cir. 1994), that the entire weight of Dilaudid tablets
should be used in calculating the base offense level. We thus
find no error by the district court in determining the Webbs’
base offense level under Sentencing Guidelines § 2D1.1.
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E. The district court did not err in enhancing Preston
Webb’s offense level as a manager of the conspiracy
Finally, Preston Webb argues that the district court erred in
giving him a two-level enhancement as a manager of the
conspiracy under Sentencing Guidelines § 3B1.1(c). The
district court, however, was provided with ample evidence at
the sentencing hearing to find that Preston held managerial
and supervisory roles essentially equal to those of his father.
U.S. Sentencing Guidelines Manual § 3B1.1, cmt. n.4, states
that “there can . . . be more than one person who qualifies as
a leader or organizer of a criminal association or conspiracy.”
In addition, the undisputed facts in the record show that
Preston ran the organization together with his father and that
five or more people were involved in the conspiracy. The
district court thus did not err in finding that Preston should
receive a two-level enhancement for his managerial role in the
conspiracy.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgments of the district court.

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