Appeal from the United States District Court for the Southern District of Iowa.
The opinion of the court was delivered by: Smith, Circuit Judge.
Submitted: January 13, 2010
Before SMITH and COLLOTON, Circuit Judges, and KORNMANN,*fn1 District Judge.
Aaron Anderson was found guilty of possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). At sentencing the district court*fn2 imposed a two-level enhancement for possession of a dangerous weapon after a gun was found in a storage shed connected to Anderson. With this added enhancement, the district court sentenced Anderson to 360 months' imprisonment.
Anderson now appeals, arguing that the district court erred by applying the two-level gun enhancement and that the resulting sentence is unreasonable. For the reasons stated, we affirm.
Law enforcement officers received information that Anderson was dealing drugs out of his residence in Davenport, Iowa. Officers searched Anderson's residence pursuant to a search warrant. Inside, officers encountered four people, including Anderson. Officers found 39.54 grams of crack cocaine in a Pyrex cup in a kitchen cupboard, 1.58 grams of crack on the stove, and .14 grams of crack on the kitchen counter. Officers also seized a set of keys on a key chain from the living room.
Anderson was arrested and transported to the police station. After being read his Miranda rights, Anderson admitted possession of the crack cocaine and some marijuana found in his residence but claimed that the drugs were only for personal use. Anderson stated that the other three suspects present were just hanging out and did not know about the crack cocaine in the kitchen. Later, during a break in the interrogation, Anderson discovered the door to the interview room was unlocked and escaped police custody by merely walking out of the police station.
Police obtained a search warrant for a storage unit rented under the name of Shanetta Roberts, Anderson's girlfriend. Inside this storage unit police found a locked safe, and inside the safe officers found a 9mm handgun, two loaded clips, and a box of ammunition. The keys previously seized from Anderson's residence opened both the padlock on the door of the storage unit and the lock on the safe inside the unit.
Anderson was arrested again after further investigation led officers to a Davenport residence. Prior to his arrest, Anderson arrived at the residence in a vehicle with Roberts. This time Anderson claimed that the crack cocaine found in his kitchen during his first arrest belonged to the other three people at his residence. Anderson testified that after his first arrest he lied to police about the source of the drugs. When asked about the handgun found in the storage unit, Anderson admitted his fingerprints would be on the weapon because he put it in the storage unit. Anderson claimed that he was holding it for a cousin from Chicago after his cousin's sister asked Anderson to store it for safekeeping.
At trial cooperating defendants Mark Woodson and Andrew Sullivan both described to police buying and cooking crack cocaine with Anderson several times. Although Anderson had previously admitted to knowing Sullivan, during trial Anderson denied any drug dealings with Sullivan. Anderson testified that after his second arrest he again lied when he told police he that dealt drugs with both Sullivan and Woodson. Although he admitted constructive possession of the crack cocaine, Anderson denied any intent to distribute it. The jury convicted Anderson of possession of crack cocaine with intent to distribute.
Before sentencing, the district court examined a presentence investigation report (PSR) describing Anderson's family background and personal characteristics. Anderson was convicted of aggravated possession of a stolen vehicle at age 17. He violated his initial sentence of probation at least two times resulting in prison sentences of 90 days and six months. Anderson has six prior convictions for possession of marijuana, including one felony drug conviction for possession with intent to deliver marijuana. Anderson was on probation at the time of the charged offense. Under the Guidelines, Anderson's convictions placed him in criminal history category VI.
According to the PSR, Anderson's parents had past problems with marijuana, crack cocaine, and cocaine, and in fact introduced him to the substances. Anderson started consuming liquor and beer at age 11 and reportedly first used marijuana at age 12 and crack cocaine at age 22. His parents separated when he was 7 or 8 years old. Anderson dropped out of school in the 11th grade. From November 2005, until his arrest on February 13, 2008, Anderson had no permanent employment. From 2000 to 2008, Anderson only worked for a temporary employment agency from April 2003 to November 2005.
At the sentencing hearing, Anderson objected to the PSR findings supporting the two-level possession of a dangerous weapon enhancement. The district court found that although the handgun was at a remote location, the key was found with Anderson. The rental unit was in the name of Roberts, Anderson's girlfriend. Anderson also used a cell phone obtained under Roberts's name. Consistent with the findings on drug quantity, the district court also considered that Anderson was involved with a substantial quantity of crack cocaine trafficking. Additionally, the district court considered that Anderson admitted to hiding assets (such as cars) for later use. At trial, Anderson claimed that he held the gun for his cousin and claimed no personal purpose for possessing the weapon. Based on this evidence, the district court found that it was clearly probable that the gun seized out of the storage unit was associated with drug trafficking and applied the two-level enhancement under U.S.S.G. §2D1.1(b)(1).
The district court calculated Anderson's Guidelines offense level to be 38-which included a base-offense level of 34 plus a two-level enhancement for possession of a dangerous weapon and a two-level enhancement for obstruction of justice-and calculated his criminal history to be category VI, yielding a Guidelines range of 360 months to life. Prior to sentencing, Anderson filed a motion for downward departure based on Spears v. United States, 129 S.Ct. 840 (2009), which allows the district court to replace the Guidelines then 100-to-1 ratio for crack/powder cocaine with its own ratio if it chooses. The district court acknowledged the filing of this motion and considered the issue as part of Anderson's sentencing argument. The district court discussed this issue with Anderson's counsel and recognized its authority to depart on a policy disagreement with the crack/powder disparity in the Guidelines, but the district court did not specifically rule on the motion to depart downward. The court ultimately decided not to adopt a different ratio.
During sentencing, the district court noted the seriousness of Anderson's offense based on the substantial drug quantities involved and the ongoing drug activity. The district court took note that this was Anderson's seventh drug conviction. The district court discussed the need to protect the public from further crimes in light of Anderson's lengthy history of drug trafficking and theft-related activity. The court understood the Guidelines to be an "important, but not in any way controlling factor to be considered." The district court said it did consider Anderson's difficult childhood, his substance abuse history, and his lack of education. The district court then sentenced Anderson to 360 months' imprisonment, the bottom of the enhanced Guidelines range.
On appeal, Anderson requests that we reverse the district court's sentence and remand for resentencing, based on two arguments: (1) the two-level gun enhancement is ...