                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0642n.06

                                                  No. 08-1510
                                                                                                     FILED
                              UNITED STATES COURT OF APPEALS                                     Sep 17, 2009
                                   FOR THE SIXTH CIRCUIT                                  LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                         )
                                                                  )         ON APPEAL FROM THE
        Plaintiff-Appellee,                                       )         UNITED STATES DISTRICT
                                                                  )         COURT FOR THE EASTERN
v.                                                                )         DISTRICT OF MICHIGAN
                                                                  )
CALVIN EUGENE WOLTZ,                                              )                    OPINION
                                                                  )
        Defendant-Appellant.                                      )




Before: NORRIS and COLE, Circuit Judges; ADAMS, District Judge.*

        ALAN E. NORRIS, Circuit Judge. Calvin Woltz appeals the sentence he received upon

pleading guilty to one count of possession with intent to distribute cocaine base, 21 U.S.C. § 841(a).

He asks us to cap his sentence at its current length, reduce the period of supervised release, and

remand because, he alleges, the district court participated in his plea negotiations and misinformed

him as to the maximum period of supervised release he could receive for the charged offense. Woltz

also argues that the court should not have applied the sentencing guidelines firearm enhancement:

first, because it is unconstitutional; and, second, because it is clearly improbable that the weapon was

connected to his offense. For the reasons outlined below, we affirm Woltz’s sentence.

                                                        I.



        *
         The Honorable John R. Adams, United States District Court Judge for the Northern District of Ohio, sitting
by designation.
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       The presentence investigation report (“PSR”) describes the undisputed facts giving rise to

this appeal:

       On June 5, 2007, at approximately 2:15 p.m., officers from the Detroit Police
       Department Narcotics Enforcement Unit executed a search warrant at 20027
       Fenmore, Detroit, Michigan, a residence owned by Gerald Ellison.

       Upon entering the residence, one officer observed CALVIN WOLTZ exiting the
       Southeast bedroom holding a white plate containing cocaine base, or “crack,” later
       determined to weigh 28.5 net grams. WOLTZ looked in the direction of entering
       officers and tossed the plate containing the narcotics to the floor area of the bedroom.
       WOLTZ ran through the kitchen to the basement where he was ultimately detained.
       Police recovered a Smith & Wesson BSR .38 Special, serial number 422128, from
       the top of the dresser in the southeast bedroom where WOLTZ had exited. Officers
       also recovered a small amount of marijuana from within the southeast bedroom and
       $845.00 in U.S. currency from WOLTZ’s person.

       ....

       According to Gerald Ellison, he (Ellison) owned the firearm which he acquired from
       his wife’s relative. He further indicated the weapon had been in his attic, and to his
       knowledge, is where the weapon last was.

Woltz was indicted and charged with three counts: being a felon in possession of a firearm, 18

U.S.C. § 922(g) (Count One); possession with intent to distribute cocaine base, 21 U.S.C. § 841(a)

(Count Two); and possession of a firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c)

(Count Three).

       On January 10, 2008, the district court held a final pre-trial hearing, during which Woltz

rejected a plea offer from the government. At the court’s request, the government explained the

terms of the plea for the record: Count One would be dropped, but this would have no effect on

Woltz’s guidelines range because he would remain a career offender. However, the government

would recommend an offense level reduction to reflect his acceptance of responsibility, a reduction

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he would not receive if he chose to proceed to trial. Woltz confirmed that he understood these

aspects of the choice he faced, and informed the court that he wanted to go to trial.

       Several days later, the district judge convened a telephone conference with the prosecutor and

defense counsel, because he was concerned that the discussion at the final pre-trial conference may

have led Woltz to believe that the court was bound to sentence him within the guidelines range. The

court informed counsel that it wanted to go on the record and explain to Woltz that it retained

discretion to sentence him as it saw fit, subject only to statutory limitations. Accordingly, it

scheduled a conference for the next day to do just that, at which the following exchange occurred:

       THE COURT: At our last conference the Government indicated what the plea offer
       was and the parties recognized that because of the criminal history, there is a career
       offender status, do you understand that?

       THE DEFENDANT: Yes.

       THE COURT: Okay. But the career offender status is under the U.S. sentencing
       guidelines. What that means is that the Supreme Court has held that the guidelines
       are advisory to the Court. So, the Court has to consider them but the Court is not
       bound by the guidelines.

               What the Supreme Court said that a sentencing Judge has to do is turn to the
       statute which applies to sentencing which says that the guidelines are one factor of
       many factors the Court considers in sentencing. The Court must consider them but
       a Court is not bound by them.

               So, in sentencing you, when we talked about the numbers that came out under
       the career offender guideline, I think the implication was or the thought was that you
       had to be sentenced within that area if you pled guilty. What I’m saying is that you
       do not have to, under the law.




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The court also noted that accepting the plea meant that a statutory minimum sentence of 120 months

would apply,1 and explained how this, combined with the guidelines and the court’s discretion,

would produce his sentence:

        the Court must sentence you to 120 months if you plead guilty to those two crimes,
        which is ten years.

                Apart from that, the Court has discretion in handing down a sentence, a total
        sentence, with regard to considering the guideline book and the career offender
        provision under 4B1.1, which is a guideline, and the other factors that I read about
        the case . . . .

        The next day the court held a plea hearing. The government explained that it had tendered

a new plea to Woltz, in which it not only agreed to drop Count One, as in the prior plea offer, but

now would drop Count Three, the gun charge, as well, leaving only the drug charge. Under this

agreement, Woltz faced a mandatory minimum of only five years imprisonment, but he would retain

his career offender status, so again his guidelines range remained unaffected at 262-327 months.

During the hearing, the government specifically noted that there was no plea agreement under Fed.

R. Crim. P. 11. The court ensured that Woltz understood the rights he would give up by pleading,

and explained the statutory prison sentence Woltz would face under the new plea: a five-year

mandatory minimum and a forty-year maximum. In addition, although the charge also carried a

minimum period of supervised release of four years, as explained in the PSR, the district court mis-

spoke on this point during the plea hearing:

        THE COURT: There’s also a period of supervised release of?

        1
          This is comprised of a 60-month mandatory minimum for the drug charge, 21 U.S.C. §§ 841(a)(1) & (b)(1)(B),
and a consecutive 60-month mandatory minimum for possession of the firearm in furtherance of drug trafficking, 18
U.S.C. § 924(c).

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       [THE GOVERNMENT]: I think at least two and up to three years.

       THE COURT: A period of supervised release at least two, maybe three years. You
       understand that, sir?

       THE DEFENDANT: Yes, I do.

       THE COURT: This means that after you finish jail time, you’re on supervised
       release, you violate that, you can be brought back to the court, sent to jail for up to
       another two to three years. Do you understand that?

       THE DEFENDANT: Yes, I do.

Woltz then acknowledged the factual basis of the charge to which he was pleading, and pleaded

guilty. The court accepted his plea.

       The last district court proceeding was the sentencing hearing, at which Woltz objected to the

two-point offense level enhancement due to the presence of the firearm on the basis that he never

possessed the weapon. The court overruled this objection, noting that although this enhancement

increased Woltz’s offense level from 26 to 28, it ultimately had no effect on the guidelines range

because his offense level would be adjusted to 34 with or without the firearm enhancement due to

his career offender status. At the court’s request, the government recommended a three-point

reduction in Woltz’s offense level for acceptance of responsibility, resulting in an offense level of

31 and a criminal history category of VI. Woltz’s guidelines range was therefore 188-235 months.

When the court gave Woltz a chance to speak, he stated twice that his decision to plead was affected

by the court’s statements that the guidelines were advisory. Having heard all of this, the court

proceeded to sentence Woltz. It considered the guidelines range and expressly noted that, although

the firearm enhancement applied in this case, Woltz “did not use firearms,” and his offense involved


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“no violence.” The court sentenced him to 160 months in prison followed by a five-year period of

supervised release. Woltz now appeals the period of supervised release, as well as the court’s

consideration of the firearm enhancement.

                                                  II.

       Woltz’s argument regarding his period of supervised release proceeds in two steps. First, he

contends that the district court participated in the plea negotiations in violation of Fed. R. Crim. P.

11(c) by being overly vocal about the advisory nature of the sentencing guidelines. Second, he

argues that the court bound itself by its statement during the plea hearing that Woltz would be

subject to “[a] period of supervised release of at least two, maybe three years.” However, Woltz

acknowledges that the statutory minimum supervised release for the crime to which he pleaded guilty

is four years, so he asks us to reduce his supervised release to that length.

       The parties first dispute the standard of review we should apply to the district court’s alleged

participation in Woltz’s plea negotiations, but we need not address that question because Woltz’s

argument fails under even plenary review. Federal Rule of Criminal Procedure 11(c)(1) provides,

“An attorney for the government and the defendant’s attorney . . . may discuss and reach a plea

agreement. The court must not participate in these discussions.” While we are certainly cognizant

of the harms against which this rule protects, none of them is implicated in this case for the simple

reason that the district court did not participate in the plea negotiations. The court simply explained

to Woltz that it was not bound by the guidelines. If anything, the court went out of its way to ensure

that Woltz understood the consequences of each option he faced, efforts which Woltz now argues

entitle him to a remand. We disagree.

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       Furthermore, although the district court mis-spoke regarding the period of supervised release

that Woltz faced, a violation of Rule 11(b), the error was harmless unless it affected the defendant’s

substantial rights. Fed. R. Crim. P. 11(h). This error was harmless. The PSR contained the correct

period of supervised release, and Woltz has not contended that he was unaware of that period.

United States v. Williams, 899 F.2d 1526, 1531 (6th Cir. 1990). In addition, the prison sentence

Woltz ultimately received was a full 28 months below the low end of the guidelines range, so Woltz

cannot suggest that his combined period of incarceration and supervised release is longer than that

for which he bargained.

                                                 III.

       Woltz next argues that the district court erred when it determined that the sentencing

guidelines firearm enhancement, U.S.S.G. § 2D1.1(b)(1), applied in his case. That section provides

for a two-point offense level enhancement “[i]f a dangerous weapon (including a firearm) was

possessed.” Woltz claims that the enhancement violates the United States Constitution in two ways:

first, it violates the separation of powers, because § 2D1.1(b)(1) is an evidentiary rule, which only

Congress has the power to promulgate; second, it violates due process because it creates an illogical

mandatory presumption. In addition to these constitutional claims, Woltz also argues that he did not

possess the firearm. At the sentencing hearing, Woltz objected to the application of the enhancement

on the basis that he did not possess the weapon, but he never made the constitutional arguments he

raises now, so he forfeited them. Therefore our review is for plain error. United States v. Herrera-

Zuniga, 571 F.3d 568, 589 (6th Cir. 2009). Woltz must show “(1) error (2) that was obvious or




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clear, (3) that affected defendant’s substantial rights and (4) that affected the fairness, integrity, or

public reputation of the judicial proceedings.” Id. (quotations omitted)

        In this case it is clear that the application of the firearm enhancement did not affect Woltz’s

substantial rights. As the district court specifically mentioned during sentencing, the enhancement

had no effect on Woltz’s guidelines range because of his career offender status. Although the

firearm enhancement would increase his offense level from 26 to 28, the career offender provision

increased his offense level to 34 regardless of whether the firearm enhancement applied. Woltz

acknowledges as much on appeal. So Woltz does not challenge the guidelines range the court

considered when sentencing him, but rather the court’s consideration of the enhancement as a

separate factor in determining his sentence. But this consideration does not appear to have

negatively affected Woltz’s sentence at all, much less affected his substantial rights. The district

court, when explaining the factors it was considering in sentencing Woltz, specifically noted that

“while there was a gun in the room and the Court did apply [the] enhancement, there is no showing

that the Defendant used the gun [ ] in terms of creating additional violent behavior.” It also

explained that one of the “issues in [Woltz’s] favor” was that “he did not use firearms.” The court

then proceeded to sentence Woltz to a prison term 28 months below the low end of the guidelines

range that applied without the enhancement.

        Woltz also argues that the enhancement affected his substantial rights because it disqualifies

him from receiving a possible early release (of up to twelve months) in the event that he completes

the Bureau of Prisons 500-hour drug treatment program. However, this harm is too speculative to

affect his substantial rights. Even if we assume that Woltz would complete the required amount of

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drug treatment–a generous assumption itself–there is a significant chance that he would not be given

early release anyway; he has six prior adult convictions, one of which involves possession of a

firearm, and he was already given a sentence that, relative to that recommended by the guidelines,

is quite lenient.

        But Woltz’s constitutional arguments fail on their merits as well. As the government points

out, the Supreme Court has already determined that the guidelines do not violate the separation of

powers. Mistretta v. United States, 488 U.S. 361, 396-97 (1989). Woltz argues that even though

an extra-congressional body may create the guidelines, it is unconstitutional for that body to utilize

presumptions within those guidelines. But he never explains, nor can we see, why this would be so.

The facts of Woltz’s case render this argument even less persuasive, where the court did not use the

firearm enhancement to calculate the guidelines range at all, but rather considered it only as a factor

in arriving at his specific sentence. Woltz’s argument must be that this was an impermissible

consideration at sentencing, and again he has not explained why that is.

        Woltz’s second constitutional argument is that this circuit’s jurisprudence calls for the

application of two unconstitutional presumptions: first, if a firearm was present during the

commission of a drug offense, defendant possessed it; second, if the defendant possessed the firearm

during the commission of the drug offense, it is connected to the offense. He argues that these

presumptions violate due process because they do not meet the standard set forth by the Supreme

Court in Tot v. United States, 319 U.S. 463 (1943), under which “a statutory presumption cannot be

sustained if there be no rational connection between the fact proved and the ultimate fact presumed

. . . .” Id. at 467. While Woltz is correct that we apply the second presumption listed above, the first

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is a mis-characterization of the state of the law. Possession, for purposes of U.S.S.G. § 2D1.1(b)(1),

may be actual or constructive. Constructive possession is “the ownership, or dominion or control

over the item itself, or dominion over the premises where the item is located.” United States v. Hill,

79 F.3d 1477, 1485 (6th Cir. 1996) (quotations omitted). Thus, it is not the case that mere presence

amounts to possession. Moreover, we have no trouble seeing the “rational connection” between a

defendant’s dominion or control over an area containing a firearm and his possession of that firearm,

nor is it difficult to see the rational connection between his possession of that firearm and the firearm

being related to the commission of the offense. See United States v. Snyder, 913 F.2d 300, 304 (6th

Cir. 1990) (citing United States v. Acosta-Cazares, 878 F.2d 945, 952 (6th Cir. 1989)). Thus both

presumptions satisfy Tot’s “rational connection” standard, a conclusion strongly implied, if not

mandated, by this circuit’s precedent. See id.

        Finally, Woltz’s argument that he did not possess the firearm is meritless. When considering

a district court’s application of the sentencing guidelines, we review factual findings for clear error

and legal conclusions de novo. United States v. Miggins, 302 F.3d 384, 390 (6th Cir. 2002). As

mentioned earlier, a defendant constructively possessed a weapon if he had dominion or control over

the area in which the weapon was found. Hill, 79 F.3d at 1485. In this case the police, upon entering

the home, witnessed Woltz leave a bedroom with a plateful of cocaine base and, upon later searching

the bedroom, they found a firearm on top of the dresser. No one else had been present in the room.

Woltz therefore had dominion over the premises where the firearm was found (the bedroom), and

he has not shown it to be clearly improbable that the firearm was connected to the charged offense.

See U.S.S.G. § 2D1.1 cmt. n. 3.

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                             IV.

The judgment is affirmed.




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