In the
United States Court of Appeals
For the Seventh Circuit

Nos. 98-1955, 98-2584

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DONALD V. CASHMAN, and
SCOTT D. FEDDERLY,

Defendants-Appellants.



Appeals from the United States District Court
for the Western District of Wisconsin.
No. 97 CR 102--John C. Shabaz, Chief Judge.


Argued September 14, 1999--Decided June 9, 2000



  Before BAUER, ROVNER, and EVANS, Circuit Judges.

  ROVNER, Circuit Judge. Donald Cashman and Scott
Fedderly pleaded guilty to conspiring to
distribute methamphetamine, in violation of 21
U.S.C. sec. 846. Cashman contests the legality of
a traffic stop that culminated in the search of
his automobile and the discovery of evidence
pointing to his involvement in the conspiracy.
Fedderly contests the district court’s finding
that he possessed a firearm in the course of the
conspiracy, see U.S.S.G. sec. 2D1.1(b)(1),
asserting, inter alia, that the district court
improperly relied on information which, according
to the terms of his plea agreement, could not be
used against him. We affirm.

I.

  On August 17, 1997, Cashman was driving his
Chevy Blazer on Interstate Highway 94 through St.
Croix County, Wisconsin, when Wisconsin State
Trooper Jason Spetz pulled him over. Trooper
Spetz effectuated the stop when he noticed a
crack in the windshield of Cashman’s Blazer. In
the course of issuing a warning ticket to
Cashman, Spetz asked for and received Cashman’s
permission to search the interior of the Blazer.
Inside, the trooper discovered, among other
things, methamphetamine and a spiral index-card
notebook containing drug-related entries.
  After he was indicted, Cashman moved
unsuccessfully to suppress the evidence that
Trooper Spetz seized from his vehicle. Cashman
argued that the traffic stop that led to the
search was unlawful. However, acting on the
recommendation of the magistrate judge, the
district court concluded that the stop was
justified by the crack in the Blazer’s
windshield. Wisconsin law requires that a
vehicle’s windshield not be "excessively cracked
or damaged." See Wis. Admin. Code sec. Trans.
305.34(3) (1997). A photograph of the Blazer’s
windshield indicated that the crack was from
seven to ten inches long, extending two inches
above the left windshield wiper of the car in its
resting position. Gov. Exs. 1, 1-A; see R. 52 at
2-3; R. 56 at 2. In the court’s view, this
appeared to be an "excessive" crack, supplying
Spetz with probable cause to stop Cashman’s
vehicle. R. 52 at 2-3; R. 56 at 2. The motion to
suppress was therefore denied, and Cashman
pleaded guilty a short while later.

  An anonymous tip led the authorities to
Fedderly, a distributor of methamphetamine whom
Cashman supplied. The tipster apprised the Dunn
County, Wisconsin Sheriff’s Department by
telephone on August 12, 1997, that Fedderly, who
was wanted on several outstanding warrants, was
staying in a stolen motor home parked in rural
Menominee. After looking the home over and
confirming that it had been reported stolen,
officers performed an inventory search. Inside a
cupboard at the foot of a bed, they discovered a
loaded .22 caliber revolver along with some of
Fedderly’s clothing. Elsewhere in the home they
found a baggie containing what appeared to be
marijuana, drug paraphernalia, a wallet with a
social security card issued to Fedderly, and just
under $500 in cash. Fedderly was arrested the
following day. When asked about the gun, he
admitted that it belonged to him and (unlike the
motor home) was not stolen. R. 112 at 12, 21-22;
see also R. 100 para. 14. On August 14, the home
was searched again. That search produced, among
other things, a black nylon tote bag, a digital
scale, syringes, and baggies, as well as a gram
scale and a Tupperware container, both of which
had methamphetamine residue on them.

  Ultimately, Fedderly pleaded guilty to
conspiring along with Cashman to distribute
methamphetamine. His plea agreement contained a
provision committing him to "make a full,
complete and truthful statement regarding his
involvement in violations of federal criminal
statutes, as well as the involvement of all other
individuals known to the defendant." R. 84 sec.
2. That same provision, however, specified that
"the information provided by the defendant under
the terms of this plea agreement will not be used
against him to determine the applicable
sentencing guideline range except as otherwise
indicated in U.S.S.G. sec.1B1.8(b)." Id.; see
also R. 111 at 8-9.

  When the probation officer interviewed him prior
to sentencing, Fedderly told the officer that
Cashman had given him the motor home in which the
gun was found because Fedderly had no place to
live. According to Fedderly, Cashman said that
his friends had stolen the motor home and that
the handgun was in the home "at the time."/1
Fedderly said that he had never even taken the
gun from the home, let alone used or carried it.
The probation officer included this information
in the pre-sentence report. R. 100 para.para. 40,
50.

  The Sentencing Guidelines call for a two-level
increase in the defendant’s base offense level
when the defendant possessed a dangerous weapon
in the course of a drug-related offense, so long
as it is not "clearly improbable" that the gun
was connected to the offense. U.S.S.G. sec.
2D1.1(b)(1) & comment. (n.3). The probation
officer applied that enhancement in calculating
Fedderly’s offense level. R. 100 para. 50.
Although "[t]here is no evidence to suggest
Fedderly used or carried the gun during any drug
transaction," the officer reasoned, "since the
weapon was provided to him by his drug supplier
and was found with other indicia of drug
distribution, we cannot say it is clearly
improbable that the weapon was connected with the
offense." Id. Fedderly contested the propriety of
the enhancement, R. 112 at 18-20, but he did not
argue that consideration of his statement to the
probation officer as to the source of the gun
violated his plea agreement with the government.

  At sentencing, the district court concluded that
the two-level enhancement for possession of the
gun in the course of the methamphetamine
conspiracy was appropriate. As the court’s
remarks reveal, the fact that Cashman had given
Fedderly the gun figured prominently in the
court’s rationale.

  The Court further finds that the loaded .22
caliber handgun was found in the stolen motor
home in which the defendant was sometimes
residing. Initially defendant informed Cragin
[one of the officers who arrested him] the gun
was his and not stolen; has since informed [the]
probation officer that gun was in the motor home
when the vehicle was provided to him by Donald
Cashman. The Court notes that there is no
evidence to suggest that Fedderly used or carried
the gun during any drug transaction. However,
this weapon was provided to him by his drug
supplier and was found with other indicia of drug
distribution.

  The Court notes that the adjustment should be
applied if the weapon was present. Now the weapon
was present in a mobile home . . . which the
defendant sometimes used. It was in the vicinity,
the immediate vicinity of methamphetamine residue
and drug paraphernalia. That is[,] items which
were normally assimilated with and/or relating to
the distribution of methamphetamine. The Court
cannot find that it is clearly improbable that
the weapon was connected with the offense.

  Those are the elements. That is the
determination. The Court believes that there is
a reason for this enhancement that has been
suggested in numerous other cases and notes
relating to the enhancement for weapon
possession. It does, as indicated, reflect the
increased danger of violence when drug
traffickers possess weapons. We have a drug
trafficker. We have . . . Donald Cashman, a drug
trafficker, who provided him, [Fedderly] now
tells us in his latest version, the gun. It
certainly wasn’t given to him to hunt squirrel.
It certainly wasn’t given him as a plaything.

  He is in a dangerous livelihood. Perhaps [he]
doesn’t as yet realize how dangerous it was, but
the fact is this was provided to him by a drug
supplier, it was found with the other evidence
and indicia of drug distribution, and the Court
believes that the weapon was connected with this
offense having previously advised that it cannot
say it is clearly improbable the weapon was
connected. It is in words of the vernacular to
protect the stash and to protect the distribution
thereof and to protect the cash surrounding it
and to protect the defendant when he was in the
mobile home in those surroundings.

R. 112 at 22-23. (emphasis ours). Again, Fedderly
raised no objection as to the propriety of taking
into consideration Fedderly’s statement to the
probation officer about the source of the gun.

  The district court sentenced Cashman to a
prison term of 180 months and Fedderly to a term
of 144 months. Cashman now appeals his
conviction, contending that the district court
should have suppressed the evidence seized from
his Blazer. Fedderly challenges his sentence,
arguing that the government failed to establish
that he possessed the revolver discovered in the
mobile home during the conspiracy to distribute
the methamphetamine, that it is clearly
improbable that the gun had any connection to the
conspiracy, and that the district court erred in
considering his statement that Cashman had given
him that gun.

II.

A.

  Cashman contends that the district court erred
in concluding that Trooper Spetz had probable
cause to effectuate the traffic stop that
culminated in the search of his Blazer. We of
course review the court’s probable cause
determination de novo, deferring to any
subsidiary findings of historical fact that are
not clearly erroneous. Ornelas v. United States,
517 U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996);
United States v. Richardson, 208 F.3d 626, 629
(7th Cir. 2000). The particular legal rule
pertinent to this case is straightforward: so
long as the circumstances confronting a police
officer support the reasonable belief that a
driver has committed even a minor traffic
offense, the officer has probable cause to stop
the driver. Whren v. United States, 517 U.S. 806,
116 S. Ct. 1769 (1996).

  The "Standards for Vehicle Equipment" set forth
in the Wisconsin Administrative Code specify that
the windshield of an automobile "may not be
excessively cracked or damaged." Wis. Admin. Code
sec. Trans. 305.34(3). Excessive cracking or
damage is defined, inter alia, as "a crack
inside, or which extends inside, the windshield
critical area" or "cracks which extend into any
area more than 8 inches from the frame." Id. sec.
Trans. 305.34(3)(a) and (b). The "windshield
critical area" is in turn defined as "that
portion of a motor vehicle windshield normally
used by the driver for necessary observations to
the front of the vehicle[,] . . . includ[ing] the
areas normally swept by a factory installed
windshield wiper system." Id. sec. Trans.
305.05(43).

  The windshield of Cashman’s Blazer in fact was
cracked, and the parties stipulated that Trooper
Spetz "saw a cracked windshield." R. 57 at 7; see
also id. at 25. But Cashman argues that the crack
was not "excessive" as the Wisconsin
Administrative Code defines that term--in other
words, the crack neither extended more than eight
inches away from the frame of the windshield nor
extended into the area of the windshield swept by
the vehicle’s windshield wipers.

  The focus of Cashman’s argument is, however,
misplaced. For purposes of the probable cause
analysis, we are not concerned with the precise
length or position of the crack. The propriety of
the traffic stop does not depend, in other words,
on whether Cashman was actually guilty of
committing a traffic offense by driving a vehicle
with an excessively cracked windshield. The
pertinent question instead is whether it was
reasonable for Trooper Spetz to believe that the
windshield was cracked to an impermissible
degree. United States v. Smith, 80 F.3d 215, 219
(7th Cir. 1996).

  The photographs in the record make plain that
the crack in the Blazer’s windshield was
substantial. Gov. Exs. 1, 1-A. As the magistrate
judge noted, and as Cashman concedes, the crack
was between seven and ten inches long, and
extended above the bottom of one of the resting
windshield wipers. R. 52 at 2-3. A trooper in
Spetz’s position, then, passing or approaching
Cashman’s vehicle on the roadway, could readily
and reasonably think that the crack met the
administrative criteria for excessive cracking
and that Cashman was violating the law by
operating the Blazer in that condition. See
Smith, 80 F.3d at 219. Careful measurement after
the fact might reveal that the crack stopped just
shy of the threshold for "excessive" cracking or
damage; but the Fourth Amendment requires only a
reasonable assessment of the facts, not a
perfectly accurate one. See id. Given the evident
length of the crack and its proximity to the
portion of the windshield swept by the wipers,
Trooper Spetz had probable cause to stop
Cashman’s vehicle.

B.

  Guidelines section 2D1.1(b)(1) directs the court
to increase the defendant’s offense level by two
levels if the defendant possessed a dangerous
weapon while committing the offense, unless it is
"clearly improbable" that the weapon had anything
to do with the crime. See id. & comment. (n.3).
As Judge Shabaz recognized, the enhancement
accounts for the heightened risk of violence that
is present when drug traffickers arm themselves.
Id.; see, e.g., United States v. Cain, 155 F.3d
840, 843 (7th Cir. 1998); United States v. Burns,
128 F.3d 553, 555 (7th Cir. 1997). Individuals
who do no more than conspire to distribute
narcotics are nonetheless eligible for the
enhancement, so long as they possess a firearm in
the course of the conspiracy. See United States
v. McClinton, 135 F.3d 1178, 1993 (7th Cir.),
cert. denied, 524 U.S. 921, 118 S. Ct. 2308, and
cert. denied, 525 U.S. 885, 119 S. Ct. 197
(1998); United States v. Wetwattana, 94 F.3d 280,
284 (7th Cir. 1996).

  For three reasons, Fedderly argues, the district
court erred in enhancing his offense level
pursuant to section 2D1.1(b)(1). First, the
government failed to prove by a preponderance of
the evidence that he possessed the revolver
discovered in the mobile home during the course
of the methamphetamine conspiracy; and thus the
court erred in finding that he did. Second, even
if he did possess the gun, it is, contrary to the
district court’s finding, clearly improbable that
the gun was connected to the conspiracy. Finally,
because the plea agreement prohibited the use of
his statement about the source of the gun in
calculating his sentencing range, the district
court was precluded from considering that
statement in assessing the propriety of the
enhancement for possession of the weapon. That
Fedderly possessed the firearm in the course of
the conspiracy and that it was not clearly
improbable the two were connected are findings of
fact that we review for clear error. See United
States v. Berkey, 161 F.3d 1099, 1102 (7th Cir.
1998); Burns, 128 F.3d at 556; United States v.
Tyler, 125 F.3d 1119, 1122 (7th Cir. 1997). As we
have noted, Fedderly raised no objection below to
the district court’s consideration of his
statement that Cashman gave him the gun. We
therefore review that issue for plain error.

  The district court did not clearly err in
finding that Fedderly possessed a weapon while he
conspired with Cashman to distribute
methamphetamine. The superseding indictment
alleged that the conspiracy commenced in or about
June of 1997 and extended to on or about
September 22, 1997 (R. 13 at 1)--although on the
record before us we have no reason to believe
that there was any life left in the enterprise
after Cashman and Fedderly were arrested in mid-
August. The stolen motor home in which the
revolver was located had been parked in Menominee
for several days in August before the local
authorities were alerted to its presence. Until
that time, Fedderly had been in possession and
control of the motor home, although the evidence
suggests that he was not necessarily staying
there. The loaded revolver was found within a
cupboard inside the home. Given the relatively
tight confines of a motor home, one could
reasonably infer that Fedderly had possessed the
weapon inside of it. Indeed, Fedderly admitted at
the time of his arrest that the weapon was his.
These circumstances lend adequate support to the
district court’s finding that Fedderly possessed
the weapon during the course of the conspiracy.

  We likewise find no error in the court’s
determination that it was not clearly improbable
that the revolver was connected with the
conspiracy. When the sheriff’s deputies searched
the home, they found, in addition to the loaded
revolver, a variety of drug paraphernalia as well
as the gram scale and Tupperware container, both
of which had methamphetamine residue on them.
They also found a black nylon tote bag. According
to the pre-sentence report, the pertinent
findings of which were not contested, four
witnesses had seen Fedderly store methamphetamine
in Tupperware containers, and one witness had
seen him carry these containers in a black nylon
tote bag. R. 100 para.para. 30-32, 34. The record
does not tell us how close these other items may
have been to the cupboard in which the gun was
found. But given the size of a motor home, they
could not have been distant. In any case,
Fedderly bore the burden of proving that it was
clearly unlikely the gun was connected to his
narcotics activity. United States v. Grimm, 170
F.3d 760, 767 (7th Cir. 1999). Although there is
no proof that Fedderly transacted his illicit
business in the motor home or that he carried the
gun with him while transacting that business, for
example, neither is there evidence suggesting
that the presence of both the gun and the drug-
related items within the motor home was
coincidental. See Berkey, 161 F.3d at 1103; see
generally Grimm, 170 F.3d at 767-68.

  Finally, although it is undisputed that the
plea agreement prohibited the district court from
considering Fedderly’s statement as to the source
of the gun, the district court’s consideration of
that statement does not rise to the level of
plain error. In order to establish plain error,
a party must not only show that the district
court erred, but that the error, left
uncorrected, would result in a miscarriage of
justice. E.g., United States v. Humphrey, 154
F.3d 668, 670 (7th Cir. 1998); United States v.
Wallace, 32 F.3d 1171, 1174 (7th Cir. 1994). In
the context of sentencing, that means that the
defendant’s sentence would have been different
but for the error. United States v. Bauer, 129
F.3d 962, 964 (7th Cir. 1997); United States v.
Hicks, 129 F.3d 376, 378 (7th Cir. 1997). There
is no question here that the district court
relied significantly on Fedderly’s protected
statement--the court cited that statement no less
than three times as it overruled Fedderly’s
objection to the enhancement. Yet, even when
Fedderly’s statement is excluded from the
analysis, there is ample evidence which
establishes that he possessed the gun during the
conspiracy and which affirmatively links the gun
to his narcotics activity. This evidence we have
already noted: the gun was found in the stolen
mobile home that Fedderly possessed for several
days prior to his arrest; Fedderly acknowledged
to arresting officers that the gun belonged to
him (R. 112 at 9); and present along with the gun
in the mobile home were drug paraphernalia, a
scale bearing methamphetamine reside, a container
of the kind in which witnesses had seen Fedderly
store methamphetamine and which, like the scale,
contained methamphetamine residue, as well as a
black nylon tote bag similar to the type one
witness had seen him use to transport the
containers. Given these independent indicia that
Fedderly possessed the gun during and in
connection with the drug conspiracy, we believe
that the court still would have enhanced
Fedderly’s base offense level pursuant to section
2D1.1(b)(1) had it not considered Fedderly’s
revelation that his drug supplier gave him the
gun. Consequently, we are not convinced that the
court’s error in considering that statement was
plain in the sense that it resulted in a more
onerous sentence for Fedderly.

III.

  Finding no error in the denial of Cashman’s
motion to suppress or in the calculation of
Fedderly’s sentencing range, we AFFIRM Cashman’s
conviction and Fedderly’s sentence.



/1 To the extent Cashman’s statement to Fedderly
suggests that the gun was present in the home at
the time it was stolen, we note that the owners
of the motor home informed the authorities that
they had never owned a firearm. See R. 112 at 11.
