UNITED STATES of AMERICA v. Thomas Hernke

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 23, 2008
Decided May 29, 2008
Before
RICHARD D. CUDAHY, Circuit Judge
JOHN L. COFFEY, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐3135
UNITED STATES of AMERICA,
Plaintiff‐Appellee,
v.
THOMAS HERNKE,
Defendant‐Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 07‐CR‐36
Charles N. Clevert, Jr.,
Judge.
ORDER
Thomas Hernke pleaded guilty to possessing cocaine with intent to distribute. See 21
U.S.C. § 841(a)(1). The district court imposed a below‐guidelines sentence of 24 months’
imprisonment because Hernke had helped prosecutors convict his cohorts in the offense.
On appeal Hernke challenges the district court’s assessment of a two‐level increase in his
offense level for possession of firearms.
Throughout 2005 and 2006 government agents investigated Jeffrey Galaska, whom
they suspected of being a large‐scale cocaine distributor. In the course of that investigation,
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
FED. R. A PP. P. 32.1

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agents learned from two confidential informants that Galaska delivered cocaine to Hernke
at his residence on a weekly basis. The informants’ tip was corroborated by data obtained
from global positioning devices installed on Galaska’s vehicles that established that Galaska
did indeed visit Hernke on a weekly basis.
Agents obtained a search warrant for Hernke’s residence in March 2006 and, in the
process of executing it, discovered Hernke seated at the kitchen table, “cutting” cocaine
with Inositol and filling “bindles” (paper packets) with cocaine for resale. Agents seized
over two ounces of cocaine, bags for packaging cocaine, a digital scale, a grinder, drug
notes, a bowl and spoon with cocaine residue, a two‐ounce bottle of Inositol, and straws.
Agents also discovered two firearms—a .357 revolver and a .44 magnum revolver—under
Hernke’s bed. In addition to the guns, the agents found 1.5 ounces of cocaine, bindles, and
drug notes in that same bedroom. After his arrest Hernke admitted that he purchased two
to four ounces of cocaine from Galaska on more than twenty occasions (accounting for the
conservative estimate that Hernke received at least 500 grams of cocaine).
Hernke admitted all of these facts in connection with his guilty plea, and based on
this account, the probation officer calculated a total offense level of 25, resulting in a
guidelines recommended sentence of 57 to 71 months’ imprisonment. This calculation
included a two‐level upward adjustment for possession of a dangerous weapon, see U.S.S.G.
§ 2D1.1(b)(1), and a three‐level downward adjustment for acceptance of responsibility, see
id. § 3E1.1. The government also filed a motion asking the court to impose a prison sentence
40% below the low end of the guidelines range, see U.S.S.G. § 5K1.1, due to Hernke’s
substantial assistance in the investigation and prosecution of Galaska and his associates.
Hernke objected to the inclusion of the two‐level firearm increase, arguing that he
used the revolvers only for target practice and never in connection with his drug crimes.
The district court disagreed and ruled that the weapons’ proximity to the drugs and drug
paraphernalia made the upward adjustment appropriate. Despite this adverse finding, the
district court sentenced Hernke to 24 months, a term almost 60% below the low end of the
recommended range.
On appeal Hernke challenges only the firearm adjustment. The guidelines impose a
two‐level increase for possessing a firearm in connection with a drug crime due to the
“increased danger of violence when drug traffickers possess weapons.” See U.S.S.G.
§ 2D1.1(b)(1) & cmt. n.3. For the increase to apply the government must prove, by a
preponderance of the evidence, that the defendant possessed a firearm during the drug
offense or relevant conduct. See United States v. Olson, 450 F.2d 655, 684 (7th Cir. 2006).
Once the government makes that showing, the burden shifts to the defendant to prove that
it was clearly improbable that the firearm was connected to the drug offense. See id. The

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relationship between the firearm and the defendant’s underlying offense is a factual
determination that we review for clear error. See United States v. Johnson, 227 F.3d 807, 814
(7th Cir. 2000).
In the present case the government met its burden: the factual basis for Hernke’s
guilty plea clearly established that the firearms were in his possession during the
commission of his drug offense. The district court relied on four cases from this circuit for
the proposition that the firearm adjustment is appropriate even when the gun possession is
entirely passive. See United States v. Womack, 496 F.3d 791, 797‐98 (7th Cir. 2007); Olson, 450
F.2d at 684; United States v. Berthiaume, 233 F.3d 1000 (7th Cir. 2000); Johnson, 227 F.3d at 814‐
15. Hernke principally argues in this appeal that the adjustment was inappropriate because
the district court relied on case law that is materially distinguishable from his own case.
While Hernke identifies factual dissimilarities between his case and those cited by the
district court, he does not explain why these distinctions are material. For example, Hernke
points out that in Womack, 496 F.3d at 797, the defendant’s gun was kept in the bedroom
near approximately $16,000 in drug proceeds but that there was no money found in the
vicinity of Hernke’s two revolvers. But Hernke’s case is even stronger than Womack: Hernke
possessed two guns near cocaine, bindles, and drug notes—unambiguous evidence of
ongoing drug trafficking.
Hernke correctly points out that Johnson, Olson, and Berthiaume were stronger cases
for the upward adjustment than his. For example, in Olson there was evidence that the
defendant himself participated in shootings, and in Berthiaume there was evidence that the
defendant accepted guns as partial payment for drug debts. But the upward adjustment
recognizes that the presence of weapons where drugs are stored, packaged and dealt is
inherently dangerous, and Hernke offers no reason why it should not apply here. Womack
is controlling, and thus there is no clear error in the district court’s determination that the
government met its initial burden. See id.; see also United States v. Ocampo, 472 F.3d 964, 966
(7th Cir. 2007) (holding that firearm adjustment was appropriate where guns were stored at
home where drugs were distributed).
Once the government met its burden, the ball was in Hernke’s court to show that it
was clearly improbable that the two revolvers were connected to his drug offense. See
Olson, 450 F.2d at 684. To do this, Hernke relied on his objections to the presentence report
which asserted that his acquisition of one of the revolvers preceded his involvement in drug
distribution, that he had them solely for target practice (though he had not even done that
for some time) and that had never fired the .44. Hernke did not testify at his sentencing
hearing, nor did he present any other evidence to support his claims. His objections to the
presentence report also contended that evidence was lacking to show that drug transactions
occurred in the bedroom, further noting that the guns were not loaded when found in an

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unlocked case and that the ammunition was located in a drawer outside of the case. The
district court properly found these representations, without additional evidence, insufficient
to meet Hernke’s burden in light of the weapons’ proximity to the drugs and drug
paraphernalia. See United States v. Corral, 324 F.3d 866, 873 (7th Cir. 2003) (holding that
“guns found in close proximity to drug activity are presumptively connected to that
activity”). It is handy for a drug dealer to have powerful firearms readily available in the
location where he stores, packages and deals his product. The district judge was not
persuaded by Hernke’s proffer that the proximity of the firearms to his drug dealing
activities was coincidental. We do not find this factual determination to be clearly
erroneous.
Accordingly, we affirm.

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