Joe Pulczinski v. Trinity Structural Towers

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-3575
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Isaiah Mahone, *
*
Defendant - Appellant. *
___________
Submitted: June 11, 2012
Filed: August 20, 2012
___________
Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
___________
LOKEN, Circuit Judge.
Isaiah Mahone pleaded guilty to being a felon in possession of a firearm; the
government dismissed a charge of possession with intent to distribute marijuana. At
sentencing, overruling Mahone’s objections, the district court imposed three firearm1
enhancements and denied an acceptance-of-responsibility reduction, resulting in an
advisory sentencing guidelines range above the statutory maximum term of 120
months in prison. The court imposed the statutory maximum sentence. Mahone
appeals the sentence, arguing the district court’s rulings were procedural guidelines
The Honorable Jimm Larry Hendren, United States District Judge for the1
Western District of Arkansas.

-- 1 of 6 --

errors. Reviewing these fact-intensive issues for clear error, we affirm. See United
States v. Ault, 446 F.3d 821, 824 (8th Cir. 2006) (standard of review).
I. The Firearm Enhancements
We summarize the relevant facts as recited in paragraphs of the presentence
investigation report (PSR) to which Mahone did not object. After a series of
controlled marijuana and ecstasy buys, law enforcement officers conducted warrant
searches at Apartments 11 and 12 of a Fayetteville, Arkansas, apartment complex.
Apartment 11 was leased to Mahone’s sister’s; Mahone was listed as the utilities
account holder. When searched, the apartment was empty. Officers seized 44 grams
of marijuana and several items consistent with drug trafficking. The lessee of
Apartment 12 listed Mahone as his employer. Executing the warrant, officers
breached a fortified door and found Mahone and two others inside. The ensuing
search yielded two stolen firearms, a Glock semi-automatic pistol and a Smith and
Wesson assault rifle; 296 grams of marijuana and drug paraphernalia; and three cell
phones. A warrant search of the cell phones produced evidence that Mahone
identified Apartment 12 as his residence and a video showing him shooting a Glock
handgun at a firing range four months earlier. Mahone pleaded guilty to unlawful
possession of the firearm shown in that video.
Under the advisory guidelines, the base offense level for Mahone’s felon-in-
possession offense is 20, U.S.S.G. § 2K2.1(a)(4)(A), subject to increases for specific
offense characteristics governed by the Guidelines’ relevant conduct principles. The
relevant conduct guideline provides that, “solely with respect to offenses . . . for
which § 3D1.2(d) would require grouping of multiple counts,” relevant conduct
includes “all acts and omissions . . . that were part of the same course of conduct . . .
as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). Section 3D1.2(d) includes
firearm offenses whose base offense level is governed by § 2K2.1. Applying these
principles, the PSR recommended that Mahone “be held accountable for all of the
-2-

-- 2 of 6 --

firearms involved in the instant offense (two of which were stolen), not just the
firearm to which he pled guilty.” Accordingly, the PSR recommended a two-level
increase for three firearms, § 2K2.1(b)(1)(A); a two-level increase for stolen firearms,
§ 2K2.1( b)(4)(A); and a four-level increase for possession of a firearm in connection
with another felony offense, § 2K2.1(b)(6). At sentencing, the district court overruled
Mahone’s objections to these enhancements.
On appeal, Mahone argues that the two firearms found during the warrant
search of Apartment 12 were not relevant conduct for the offense of conviction
because renting a weapon at a firing range “is not connected or similar to being in an
apartment where drugs and stolen firearms are located.” We disagree. At least four
of our sister circuits have concluded that a defendant’s pattern of unlawfully
possessing multiple firearms over the course of several months constitutes “the same
course of conduct” for relevant conduct purposes. See United States v. Brummett,
355 F.3d 343, 345 (5th Cir. 2003), and cases discussed. This conclusion is consistent
with our decision in United States v. Cole, 525 F.3d 656, 659-60 (8th Cir. 2008),
where we upheld enhancements based on two firearms, one of which was stolen, that
were discovered at the same time as the “sawed-off” shotgun that was the basis for
the failure-to-register offense of conviction.
“Factors that are appropriate to the determination of whether offenses are
sufficiently connected or related to each other to be considered as part of the same
course of conduct include the degree of similarity of the offenses, the regularity
(repetitions) of the offenses, and the time interval between the offenses.” U.S.S.G.
§ 1B1.3, comment. (n.9(B)). Here, the Offense Conduct paragraphs of the PSR, to
which Mahone did not object, contained substantial evidence that the three firearms
at issue were part of a single course of conduct: informants who made controlled
buys reported guns being kept in the apartments; a regular marijuana and ecstasy
customer of Mahone told officers that Mahone collected firearms and traded them for
drugs; in a cell phone text message, Mahone was asked, “Can I come get that lil 380,”
-3-

-- 3 of 6 --

by the perpetrator of an armed robbery that same night; and the cell phone contained
pictures of other firearms as well as the video of Mahone shooting a handgun at a
firing range less than four months before officers discovered two firearms in
Apartment 12. On this record, the district court’s findings that Mahone illegally
possessed three firearms, two of which were stolen, were not clearly erroneous.
Mahone objects to the third enhancement -- possession of a firearm in
connection with another felony offense -- because there was no evidence the firearm
at the firing range was involved in any other felony. It is doubtless true that the
rented firing-range handgun was not directly used to facilitate another felony. But
Mahone’s relevant conduct included the two firearms that were found in Apartment
12 along with a substantial quantity of marijuana and other evidence of drug
trafficking. If Mahone had been convicted of both offenses initially charged, felon
in possession and possession with intent to distribute marijuana, there can be no
doubt these two weapons would warrant the § 2K2.1(b)(6) enhancement. See United
States v. Whiting, 522 F.3d 845, 850 (2008). Mahone would have us sidestep this
reality by arguing (without citation to authority) that “the dismissed [marijuana
charge] is not relevant conduct.” In general, relevant conduct includes “uncharged
conduct [that] is part of the same course of conduct as the offense of conviction.”
Ault, 446 F.3d at 823. Given the “well-known tendency of drug criminals to use
firearms in connection with their drug activities,” United States v. Peroceski, 520
F.3d 886, 889 (8th Cir. 2008), the district court did not clearly err in finding that the
same course of conduct for Mahone’s offense of conviction included his closely
interrelated drug trafficking and continuing illegal possession of firearms.
II. Acceptance of Responsibility
The PSR noted that Mahone denied living at Apartment 12 and denied
knowledge of the firearms and drugs found in the apartment, despite substantial
evidence to the contrary. The PSR nonetheless recommended, with “some
-4-

-- 4 of 6 --

reservations,” a two-level reduction for acceptance of responsibility because he
admitted the offense of conviction. However, in responding to Mahone’s objections
to the recommended firearm enhancements, the Probation Officer opined that, if the
court finds the relevant conduct reported in the PSR to be true, and if Mahone
“continues to deny or contest his involvement,” he would be “acting in a manner
inconsistent with acceptance of responsibility.” At sentencing, the district court
noted that the Guidelines provide for a reduction only if the defendant “clearly
demonstrates acceptance of responsibility.” U.S.S.G. § 3E1.1(a). The court denied
Mahone a two-level reduction, explaining:
I think all the defendant did was enter a plea of guilty and admit what he
needed to admit to get his plea accepted and did not go beyond that.
Then he has argued and tried to explain [and] denied things that simply
were true, the conduct that had taken place prior to and during the time
of his arrest. To me, that does not amount to a clear demonstration of
acceptance of responsibility.
On appeal, Mahone argues the district court erred in denying the reduction
because he objected to the relevant conduct enhancements recommended in the PSR.
Mahone bases this contention on the commentary to the acceptance of responsibility
guideline, which states that appropriate considerations in determining whether a
defendant qualifies for this reduction include:
truthfully admitting the conduct comprising the offense(s) of conviction,
and truthfully admitting or not falsely denying any additional relevant
conduct for which the defendant is accountable. . . . A defendant may
remain silent in respect to relevant conduct beyond the offense of
conviction without affecting his ability to obtain a reduction under this
subsection. However, 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.
-5-

-- 5 of 6 --

U.S.S.G. § 3E1.1, comment. (n.1(A)). The commentary further warns, “A defendant
who enters a guilty plea is not entitled to an adjustment under this section as a matter
of right.” § 3E1.1, comment. (n.3).
After careful review of the sentencing record, we conclude the district court did
not clearly err in denying an acceptance-of-responsibility reduction. As the above-
quoted explanation makes clear, the court primarily denied Mahone a reduction
because he falsely denied relevant conduct that was obviously true, both during the
Probation Officer’s interview and again in answering the court’s questions at
sentencing, not because he challenged firearm enhancements recommended in the
PSR. Mahone would have us focus solely on the court’s additional observation that
the relevant conduct objections “border on being frivolous.” But we need not decide
whether the objections were in fact frivolous. The commentary focuses both on false
denials and frivolous legal challenges. Here, as the district court found, Mahone’s
persistent denial of obviously relevant conduct -- that he was involved in the guns and
drugs present in Apartment 12 -- was clearly false. For example, one person in the
apartment when the officers arrived said she overheard Mahone telling his associate
“to relax about the guns because the bullets were elsewhere and that he had flushed
the Ecstacy that was in the apartment.”
The judgment of the district court is affirmed.
______________________________
-6-

-- 6 of 6 --