United States of America, on Appeal From the v. District of Tennessee Bobby Joe Whitmore

*The Honorable Robert Holmes Bell, Chief United States District Judge for the
Western District of Michigan, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0652n.06
Filed: August 25, 2006
No. 05-6331
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
ON APPEAL FROM THE
Plaintiff-Appellee, UNITED STATES DISTRICT
COURT FOR THE WESTERN
v. DISTRICT OF TENNESSEE
BOBBY JOE WHITMORE,
Defendant-Appellant.
/
Before: BOGGS, Chief Judge, and BATCHELDER, Circuit Judge; BELL, District
Judge.*
PER CURIAM. Defendant Bobby Joe Whitmore was convicted following a guilty
plea to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He was
sentenced to a 94-month term of imprisonment, to run consecutively to sentences on two
state-court convictions. He appeals his sentence on two grounds: (1) the district court erred
in granting a four-level enhancement for use of a firearm in connection with another felony
under Section 2K2.1(b)(5) of the United States Sentencing Commission Guidelines; and (2)

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U.S. v. Whitmore
the sentence imposed by the district court was not "reasonable" within the meaning of United
States v. Booker, 543 U.S. 220 (2005). For the reasons that follow, we AFFIRM.
I.
On January 22, 2005, Benton County Sheriff's Department Deputies Alan Bolan, Jeff
Arnold and Lee Haswell, accompanied by Carroll County Sheriff's Department Investigator
Tim Meggs, went to 3135 Park Road, Westport, Tennessee, to arrest Defendant Whitmore
on outstanding warrants out of Carroll County. Whitmore resided at that address with Alicia
Dawn Adams and their five children. Adams answered the door and told the officers that
Whitmore had fled into a nearby wooded area behind the house. The officers began to search
the wooded area for Whitmore. While searching, Investigator Meggs stepped on a rifle that
had been wrapped in a sheet and covered with leaves. Also wrapped in the sheet was a
plastic sack with a handgun barrel sticking out of it.
The officers obtained Adams' written consent to search the property. During the
search, they seized the rifle, a 7.62-mm Mauser, and the handgun, an AMT Back-up
.22-caliber semiautomatic pistol. The officers also found a plastic tote tub, which had been
covered with leaves and hidden in a ditch a short distance from the rifle and AMT handgun.
The plastic tote contained numerous items used in the manufacture of methamphetamine.
A short distance from the tote, the officers discovered a plastic bag containing two coffee
cans. The cans themselves contained a quantity of marijuana divided into separately bagged
small quantities and a Ruger .22-caliber semiautomatic pistol, which was loaded with two
live rounds. Officers also searched the residence and a shed located on the property. They

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U.S. v. Whitmore
recovered from the house a small amount of marijuana and additional items known to be used
in the manufacture of methamphetamine, including a bag of ephedrine pills. In the shed, they
located approximately 66 grams of crushed pseudoephedrine pills and other items used to
manufacture methamphetamine.
The officers did not find Whitmore on January 22, 2004, but they arrested Alicia
Adams and took her into custody on charges related to the manufacture and/or distribution
of methamphetamine and marijuana. On January 23, 2004, Whitmore voluntarily appeared
at the Benton County Sheriff's Department, where he was arrested on the outstanding
warrants from Carroll County. After being given his Miranda warnings, he gave a written
statement, admitting that he had grown and smoked marijuana and had manufactured
methamphetamine:
Everything found in the woods is mine. I do cook meth average twice a
month. Alicia had no knowledge of stuff in woods besides maybe couple of
guns, I removed when Sherriff's Office was arriving. I growed some weed this
year, just to see if I could. For personal use, weed is my drug. I grew approx.
½ lb.
The collective volume of marijuana seized from Whitmore's home and property totaled
approximately 100 grams.
On January 25, 2005, Whitmore was indicted by a federal grand jury in the Western
District of Tennessee on the offense of being a felon in possession of a firearm, in violation
of Title 18 U.S.C. § 922(g). Whitmore entered a guilty plea on April 28, 2005.
A Presentence Investigation Report ("PSI") was prepared prior to sentencing. In that
report, the probation officer calculated the sentence under the advisory Sentencing

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U.S. v. Whitmore
Guidelines. Under the Guidelines, the probation officer calculated the base offense level at
20, with a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A), because the offense
involved three firearms, and a four-level enhancement under U.S.S.G. § 2K2.1(b)(5), because
Whitmore possessed firearms in connection with other felony offenses (possession of
marijuana with intent to distribute and manufacture and/or attempt to manufacture
methamphetamine). The PSI also recommended that Whitmore receive a three-level
downward adjustment for acceptance of responsibility, pursuant to U.S.S.G. §§ 3E1.1(a) and
(b). The total recommended offense level was 23. The calculation of Whitmore's criminal
history category resulted in a score of 15, placing Whitmore in the criminal history category
of VI. The resulting sentence calculations led to a recommended sentence of 92 to 115
months' imprisonment and three years' supervised release.
At sentencing, Whitmore raised three arguments as to why the court should sentence
him to a term of imprisonment lower than the recommendation calculated under the
Sentencing Guidelines. First, Whitmore argued that the four-level enhancement for
possessing the firearm in connection with other felony offenses was improper because the
drugs in issue were possessed solely for his own personal use, not with any intent to
distribute. Second, he argued that six of the fifteen criminal history points attributed to him
resulted from misdemeanor offenses. He therefore contended that the criminal history
category of VI overstated the seriousness of his criminal history. Third, he argued that the
court should apply its discretion under all of the sentencing considerations of 18 U.S.C.
§ 3553 to reduce his sentence in light of the particularly severe impact his incarceration

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U.S. v. Whitmore
would have on the financial circumstances of his long-time partner Alicia Adams and their
five children.
In support of his argument, Whitmore introduced the testimony of Alicia Adams as
to the financial hardships caused by his incarceration. The government introduced the
testimony of Sergeant Bolan and Investigator Meggs as evidence that the AMT pistol was
found in the same coffee can with the marijuana packets.
The court rejected all three of Whitmore's arguments, as follows:
As I understand it, there's really [only] one substantive objection, and
that is the enhancements for the use of a firearm in connection with another
offense. The other issues all have to do with where he should fall in the range
or without the range. They're 3553 factors. The only substantive objection I
have to rule on at this point is whether or not the probation officer has
correctly added the four-level enhancement on Worksheet A for use of a
firearm in connection with another offense.
It's my judgment, based on all the evidence that I've heard, the
defendant's guilty plea and the testimony of the officers today, that this firearm
was used in connection with another offense. And I make that judgment on
several different bases.
Number one, the firearm – a firearm was found in a can of marijuana
that was packaged for distribution or resale. That's a strong indication to me
that this firearm was used in connection with possession of marijuana with
intent to resell.
There's another reason though, and that is that the possession of this
equipment, materials, supplies, precursors in the production of
methamphetamine is also a felony, and this firearm was in a reasonable
proximity to this other equipment and materials and supplies.
Further, we've got the defendant's admission that he manufactured
marijuana. Even if he were manufacturing it for his own use, manufacture of
marijuana is a felony.

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So for those reasons, it's my conclusion that the probation officer was
correct in applying the four-level enhancement for use of this firearm in
connection with another felony. So that makes the probation officer's
calculations correct. Therefore, the advisory range as calculated by the
probation officer is where we'll start. Now, I have to consider the other
objections raised by the defendant, but our starting point is the range
calculated by the probation officer, 92 to 115 months.
The defendant next states that the defendant's criminal history
overstates his actual criminal history and the court should give him a sentence
less than the suggested guideline range.
In looking at this defendant's criminal history, it's true that many of his
convictions are for, quote, relatively minor offenses. Two of them were for
juvenile offenses. And in that sense he got more points than most
misdemeanants get. That's true. But, at the same time, there were six
convictions that resulted in no points. So I can't say that the defendant's
criminal history overstates his criminal background.
He has, in large part, been a one-man minor crime wave in West
Tennessee since he was 15 years old. He had all different types of offenses.
He had theft and burglary and evading arrest and absconding and just a
mixture of all different kinds of offenses, which tells me that the defendant has
not been a good citizen.
Now, I can't say that a criminal history of VI understates his category
because VI is as high as it gets, so it clearly doesn't understate it, as suggested
by the government, impliedly, but nor does it overstate it. I think that a
criminal history of VI is exactly where Mr. Whitmore belongs. Given his long
history of violations and failure to comply with society's rules, he's a criminal
history of VI. Now it's true he got there by misdemeanors, but you can have
a misdemeanant that is so repetitive in his violations that he becomes a
category VI, and I think Mr. Whitmore is a VI.
Now, the other issues, the family – the impact on the family. And it's
obvious in this case that Mr. Whitmore's incarceration is going to have a
significant impact on his girlfriend and five children, and I sincerely regret
that. It's always unfortunate in these types of cases because the family always
pays a higher price than the defendant. The defendant goes off to prison, and
he's got things to occupy his time, and he gets regular food and rehabilitation
and training and education; and the family is just left out there in society to
struggle.

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U.S. v. Whitmore
But the problem, Mr. Whitmore, is that this impact on the family is
caused not by the government or the laws or the judge. It's caused by you.
You're the one who has put them in this shape by getting yourself convicted
of this serious felony. And while I regret the impact on the family, this case
is really no different than any other case I have. Every defendant I see, almost
without exception, leaves family behind, and the family always suffers. And
while it's unfortunate, it's not a basis in this case to give a sentence lower than
the recommended range.
The court, having rejected Whitmore's arguments for a sentence below the advisory
guideline range calculated by the probation officer, specifically found that "the range of
sentences suggested by the guidelines in this case is an appropriate range for you." However,
because the number of firearms was the minimum to qualify for the two-level increase under
U.S.S.G. § 2K2.1(b)(1)(A), and because the court considered Whitmore to be a low-level
category VI offender, the court sentenced Whitmore to 96 months, toward the low end of the
advisory guideline range. The court also rejected Whitmore's request that the court order the
federal sentence to be served concurrently with the two state-court sentences on which
Whitmore then was imprisoned. Instead, the court concluded that the state-court offenses
were completely unrelated to the federal offense and that a consecutive sentence therefore
was appropriate.
II.
In Booker, 543 U.S. at 244, the Supreme Court concluded that in the context of a
mandatory sentencing guidelines scheme, the Sixth Amendment prevents federal judges from
making factual determinations that increase a defendant's sentence on the basis of facts not
reflected in the jury's verdict. Id. The Supreme Court went on to decide that "this
constitutional holding required the invalidation of 18 U.S.C. § 3553(b)(1) and 3742(e),

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'mak[ing] the Guidelines effectively advisory.'" United States v. Davidson, 409 F.3d 304,
309 (6th Cir. 2005) (quoting Booker, 543 U.S. at 246).
When reviewing a district court's application of the advisory Sentencing Guidelines,
this court accepts a district court's factual findings unless they are clearly erroneous. Mixed
questions of law and fact are subject to de novo review. Davidson, 409 F.3d at 310 (6th Cir.
2005) (holding that pre-Booker standard of review of Guidelines calculations remains
essential to ensure that district court has been correctly advised of the Guidelines
recommendations). A district court's ultimate sentencing determination is reviewed for
reasonableness. Booker, 543 U.S. at 261-65; United States v. Webb, 403 F.3d 373, 383 (6th
Cir. 2005); United States v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005).
III.
A. Calculations under Sentencing Guidelines
In his first claim of error, Whitmore argues that the district court improperly
calculated his sentence under the Guidelines by granting a four-level enhancement under
U.S.S.G. § 2K2.1(b)(5) for the use of a firearm in connection with another felony. He argues
that he was only a user of marijuana and methamphetamine, and he denied ever engaging in
drug trafficking offenses. He suggests that the only evidence that he intended to distribute
marijuana was the testimony of Investigator Meggs, who gave opinion testimony that the
small bags of marijuana found inside the coffee can were "likely for resale." Whitmore
argues that Meggs should not have been permitted to give opinion testimony as he was not
qualified as an expert under Rule 702 of the Federal Rules of Evidence.

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Whitmore's claim of error fails for several reasons. First, Whitmore never objected
to Meggs' opinion testimony at sentencing. In the absence of plain error, the failure of a
defendant to object to the testimony presented at sentencing precludes appellate review. See,
e.g., United States v. Burton, 334 F.3d 514, 516 (6th Cir. 2003). Whitmore makes no effort
to demonstrate plain error, nor could he do so. As he acknowledges in his brief, the Federal
Rules of Evidence do not apply to evidence considered at sentencing, as long as the court
determines that the evidence possesses sufficient indicia of reliability. U.S.S.G. § 6A1.3 ("In
resolving any dispute concerning a fact important to a sentencing determination, the court
may consider relevant information without regard to its admissibility under the rules of
evidence applicable at trial, provided that the information has sufficient indicia of reliability
to support its probable accuracy."); United States v. Sadolsky, 234 F.3d 938, 944 (6th Cir.
2000); United States v. Silverman, 976 F.2d 1502, 1513 (6th Cir. 1992) (en banc). As a
result, the fact that the district court considered opinion testimony that may have been outside
Rule 702 of the Federal Rules of Evidence is not plain error.
Second, the testimony of an experienced police officer that marijuana packaged in
small baggies suggests the intent to distribute possesses significant indicia of reliability.
Common sense alone supports the testimony, since an individual is unlikely to store a
personal quantity in many separate packages, unless he intends to keep them in different
locations. Arguably, even to a lay person, such packaging is suggestive of intent to
distribute and would not require expert testimony under the rules of evidence. Further, courts
are well aware that experienced police officers have significant experience in the conduct of

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No. 05-6331 10
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persons engaged with illegal drugs. As a result, the district court's factual finding that the
firearms were possessed in connection with the possession with intent to distribute marijuana
was entirely reasonable and supported by evidence possessing strong indicia of reliability.
Third, even if the Meggs testimony were considered unreliable as proof of Whitmore's
intent to distribute the marijuana, the sentencing court did not rely solely on the firearms'
relation to the felony of possession with intent to distribute marijuana. Instead, the court
specifically found that the three firearms also were possessed within reasonable proximity
to the equipment, materials and supplies necessary to manufacture methamphetamine,
another felony offense Whitmore admitted committing.
Keeping in mind that "the presence of drugs in a home under a firearm
conviction does not ipso facto support application of a § 2K2.1(b)(5)
enhancement," id. at 501, the district court must examine the specific facts of
the case before it to determine if the government established by a
preponderance of the evidence that the defendant possessed or used a gun in
connection with another felony. Although the "possession of firearms that is
merely coincidental to the underlying felony offense is insufficient to support
the application of § 2K2.1," this court has expressly adopted the "fortress
theory, which concludes that a sufficient connection is established if it
reasonably appears that the firearms found . . . are to be used to protect the
drugs or otherwise facilitate a drug transaction."
United States v. Clay, 346 F.3d 173, 179 (6th Cir. 2003) (quoting United States v. Ennenga,
263 F.3d 499, 503 (6th Cir. 2001)). Where, as here, a rifle and two handguns are hidden near
one another and near illegal drugs and drug paraphernalia secreted in a wooded area behind
the defendant's house, the district court did not err in concluding by a preponderance of the
evidence that the weapons were being used to protect those drugs or to facilitate a drug
transaction.

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U.S. v. Whitmore
118 U.S.C. § 3553(a) reads as follows:
Factors to be considered in imposing a sentence. – The court shall
impose a sentence sufficient, but not greater than necessary, to comply with
the purposes set forth in paragraph (2) of this subsection. The court, in
determining the particular sentence to be imposed, shall consider –
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
Fourth, the district court alternatively rested its decision on Whitmore's admitted
production and possession of marijuana, conduct that is itself illegal, regardless of
Whitmore's intent to distribute the marijuana. The district court did not err in concluding that
the fact that Whitmore placed both the marijuana and a handgun in the same coffee can and
hid the can in the woods strongly supported a conclusion that the firearm was used in
connection with the manufacture and possession of the marijuana.
For all the stated reasons, the district court's factual findings are not clearly erroneous,
and the court correctly applied the Sentencing Guidelines to the facts found. The
recommended sentence under the Guidelines, therefore, was accurately calculated.
B. Reasonableness of Sentence
Once this court has determined that the district court properly consulted the
Guidelines, the sentence is reviewed for reasonableness. Booker, 543 U.S. at 261-62; United
States v. Richardson, 437 F.3d 550, 553-55 (6th Cir. 2006); Webb, 403 F.3d at 383. In
assessing whether a sentence is reasonable, this court "has focused on the district court's
obligation to consider the factors listed in 18 U.S.C. § 3553(a)1 in arriving at an appropriate

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No. 05-6331 12
U.S. v. Whitmore
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment
in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for –
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines –
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment
in the most effective manner;
(5) any pertinent policy statement –
. . .
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
sentence." United States v. Barton, ___ F.3d ___, 2006 WL 2164260, at *7 (6th Cir. Aug. 3,
2006) (citing Webb, 403 F.3d at 383-85). The district court need not recite each factor under
§ 3553(a), "but it must articulate its reasoning in deciding to impose a sentence in order to
allow for reasonable appellate review." United States v. Kirby, 418 F.3d 621, 626 (6th Cir.
2005); see also United States v. McBride, 434 F.3d 470, 476 n.3 (6th Cir. 2006). "'[T]here
must still be sufficient evidence in the record to affirmatively demonstrate the court's
consideration of [the § 3553 factors].'" See United States v. Caswell, ___ F.3d ___, 2006
WL 2243017, at *3 (6th Cir. Aug. 7, 2006) (quoting McBride, 434 F.3d at 476 n.3).

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No. 05-6331 13
U.S. v. Whitmore
Whitmore argues that the district court's sentence was unreasonable because the court
improperly treated the Sentencing Guidelines as "presumptively reasonable," thereby
effectively failing to consider all of the factors set forth under § 3553(a). In support of his
argument, Whitmore cites a number of district court cases that reject application of the
Guidelines as "per se reasonable," because such treatment of the Guideline calculations
"effectively converts the now-advisory guidelines to mandatory guidelines . . . ." United
States v. Huerta-Rodriguez, 355 F. Supp. 2d 1019, 1025 (D. Neb. 2005); see also United
States v. Phelps, 366 F. Supp. 2d 580, 587 (E.D. Tenn. 2005) ("[T]he Court does not believe
the advisory Guidelines range should be treated as a starting point or necessarily understood
as representing a presumptively reasonable sentence in a given case."); United States v.
Hoskins, 364 F. Supp. 2d 1214, 1216 (D. Mont. 2005) (reasoning that Supreme Court "did
not intend for the Guidelines to be advisory in theory but mandatory in fact").
Whitmore mischaracterizes both the state of the law of this circuit and the process by
which the district court reached its decision in the instant case. In United States v. Williams,
436 F.3d 706, 708 (6th Cir. 2006), this court expressly held that a sentence within a properly
calculated advisory Guidelines range is afforded a rebuttable presumption of reasonableness.
See also United States v. Cage, ___ F.3d ___, 2006 WL 2346328, at *3 (6th Cir. Aug. 15,
2006) (reaffirming Williams); United States v. Vonner, 452 F.3d 560, 566 (6th Cir. 2006)
(applying presumption of reasonableness). Having determined the Guidelines
recommendation, a sentencing court must consider the list of sentencing factors articulated
in § 3553(a). See Williams, 436 F.3d at 708. Under the law of this circuit, a district court

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No. 05-6331 14
U.S. v. Whitmore
acts properly when it correctly calculates the recommended sentence under the Guidelines
and then considers whether to deviate from that recommendation based on the other factors
under § 3553(a). Jackson, 408 F.3d at 305; Cage, 2006 WL 2346328, at *6 (holding that
district court did not err "by viewing Guidelines as a presumptively reasonable starting point"
before weighing the Guidelines in relation to other § 3553(a) factors).
In the instant case, while the district court did not specifically list the § 3553(a)
factors, the court's overall reasoning reflects that it carefully considered each factor. See
Williams, 436 F.3d at 708-09 (reviewing evidence in the record that the district court
considered the factors without reciting them); Cage, 2006 WL 2346328, at *6 (concluding
that court's consideration of characteristics of offense, defendant's history and characteristics,
and adequate deterrence reflected judge's application of § 3553(a) factors); Caswell, 2006
WL 2243017, at *4 (despite absence of references to § 3553(a) sentencing factors, sentencing
record contains evidence that the court considered the substance of § 3553(a) sentencing
factors). The district court carefully considered the first factor under § 3553(a)(1), and
specifically found that each of the Guideline classifications accurately reflected the nature
and circumstances of the offense and Whitmore's own history and characteristics. See
Caswell, 2006 WL 2243017, at *4. In addition to carefully analyzing the specifics and
weight to be given Defendant's criminal history, the court considered whether Whitmore's
history of support and responsibility for his family and their resultant financial hardships

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No. 05-6331 15
U.S. v. Whitmore
2We observe that Whitmore's family history and obligations arguably are part of "the
history and characteristics of the defendant" described in § 3553(a)(1). However, the
Sentencing Guidelines themselves prohibit or discourage consideration of a defendant's
family ties and responsibilities in setting a sentence, see U.S.S.G. § 5H1.6, and a district
court is obligated to consider any pertinent policy statements under § 3553(a)(5). This Court
previously has reserved deciding what weight, if any, factors such as family ties should be
given after the Supreme Court's decision in Booker. See Jackson, 408 F.3d at 305 n.3.
Because it is not necessary to the decision, we will assume without deciding that Whitmore's
family history and obligations were properly considered on the same terms as any other
factor under § 3553(a).
warranted the imposition of a lower sentence.2 The district court expressly considered the
relative responsibility of Whitmore vis-a-vis other similarly situated defendants, as
contemplated by § 3553(a)(6). The court further addressed Whitmore's need for treatment
of his substance abuse problem and noted Whitmore's ability to obtain vocational training
in prison, as contemplated by § 3553(a)(2)(D). Id. In addition, the court considered whether
the sentence was appropriate to address the seriousness of the offense, to deter future
criminal conduct, and to protect the public from the "one-man minor crime wave" continued
by Whitmore through his entire adult life. The court repeatedly noted that Whitmore's prior
sentences had failed to deter his continuing criminal conduct. These considerations squarely
mesh with the factors set forth in § 3553(a)(1)-(3). Id. Moreover, the court expressly noted
Whitmore's inability to pay a fine, recommended that he be imprisoned close to home, and
recommended substance abuse treatment demonstrating that he considered "the kinds of
sentences available" under § 3553(a)(3). See Williams, 436 F.3d at 708 (noting that a district
court's discussion of a defendant's ability to pay a fine is evidence that the court considered
"the kinds of sentences available").

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In sum, the district court's rationale and findings clearly indicate that the court
carefully considered all of the factors under § 3553(a). Whitmore has failed to identify any
factor neglected by the district court. See Williams, 436 F.3d at 408 (noting that the
defendant had failed to identify a factor under § 3553(a) that would have rendered his
sentence unreasonable). Upon careful review of the sentencing transcript, it is apparent that
Whitmore's sentence was reasonable in light of the sentencing factors under § 3553(a).
IV.
For the foregoing reasons, we AFFIRM the sentence imposed by the district court.

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