Filed: Sep. 13, 2006
Latest Update: Feb. 21, 2020
Summary: , Jennifer Hay Zacks, Assistant United States Attorney, and, Michael J. Sullivan, United States Attorney, on brief for appellee.offense conduct, that is, the cocaine conspiracy. United States v. Meada, 408 F.3d 14, 24 (1st Cir.importation scheme involved at least five people: Wells himself;
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2543
UNITED STATES,
Appellee,
v.
MICHAEL WELLS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Dana A. Curhan and Roger Witkin on brief for appellant.
Jennifer Hay Zacks, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, on brief for appellee.
September 13, 2006
Per Curiam. In June 2004, a jury convicted Michael Wells
of conspiracy and importation of a controlled substance. Wells had
orchestrated a scheme wherein he recruited women to fly from
Massachusetts to Jamaica, ingest pellets of cocaine, and then
return to the United States and expel the pellets for Wells to
sell. The district court sentenced Wells to a term of 169 months
in prison, to be followed by 96 months of supervised release. In
calculating this sentence, the court applied two enhancements to
Wells's offense level: a two-level enhancement under USSG §
2D1.1(b)(1) for possession of a dangerous weapon and a four-level
enhancement under § 3B1.1(a) for being the organizer or leader of
a criminal activity that involved at least five people or was
otherwise extensive. In this appeal, Wells argues that the
district court erred in applying these two enhancements.
The district court applied the dangerous-weapon
enhancement based on the testimony of two women whom Wells had sent
to Jamaica to procure cocaine. The women testified that, while in
Wells's apartment, they had seen Wells remove a handgun from his
pants and place it under a plant, near the refrigerator where Wells
stored cocaine. One of the women asked Wells why he had the gun,
and he responded that it was for his protection. At the sentencing
hearing, Wells protested that the gun could have been a replica,
but the court declared itself satisfied that the two women
correctly identified the gun as an actual weapon. It also
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concluded that Wells possessed the weapon in connection with the
offense conduct, that is, the cocaine conspiracy.
This court reviews factual findings supporting a district
court's imposition of a sentence under the Sentencing Guidelines
for clear error. United States v. Meada,
408 F.3d 14, 24 (1st Cir.
2005). We find no such error in the district court's conclusion
that Wells possessed a functioning firearm rather than a replica.
The court explicitly stated that it found the two women to be
generally credible witnesses. The mere factual possibility that
the gun Wells concealed in the plant was a replica does not render
the court's finding clearly erroneous, especially since that
finding need be supported by only a preponderance of the evidence.
See United States v. Holliday,
2006 U.S. App. LEXIS 19431 (1st Cir.
Aug. 2, 2006). Wells also contends that the firearm, even if real,
was not sufficiently connected with his criminal offense to warrant
application of the two-level enhancement. Application Note 3 to §
2D1.1 indicates that the dangerous-weapon enhancement should be
applied "if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense." § 2D1.1 cmt. n.3.
This means that the defendant must have "possessed the weapon
during the currency of the offense, not necessarily that he
actually used it in perpetrating the crime or that he intended to
do so." United States v. McDonald,
121 F.3d 7, 10 (1st Cir. 1997).
Here, Wells kept a handgun in his apartment, hidden in a plant pot
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very near to his stash of cocaine, and he told his co-conspirators
that the weapon was for his protection. The district court did not
clearly err in deeming the dangerous-weapon enhancement applicable.
Wells also challenges the district court's application of
a four-level enhancement under § 3B1.1(a), which calls for such an
increase "if the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive." On appeal, Wells argues that the enhancement is
inappropriate because the relevant criminal activity involved only
four people. Before the district court, however, Wells did not
raise this argument. We therefore review the objection for plain
error. United States v. Connolly,
341 F.3d 16, 31 (1st Cir. 2003).
Our review of the facts leaves little doubt that the cocaine
importation scheme involved at least five people: Wells himself;
the two women who served as smugglers, Leeann Leanna and Jennifer
Chicklis; a woman named Pauletta who picked up Leanna and Chicklis
in Jamaica and provided them with cocaine; and an unnamed man who
drove Leanna to the airport in Boston so she could fly to Jamaica.
The district court also found the cocaine conspiracy "otherwise
extensive" since it involved the international smuggling of
contraband. We see no error, plain or otherwise, in these
conclusions.
The defendant's sentence is affirmed.
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