Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 1000-Ronald A. Guzmán, Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Before EASTERBROOK, Chief Judge, and CUDAHY and RIPPLE, Circuit Judges.
Alowonle Idowu pleaded guilty to one count of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to 87 months' imprisonment. Mr. Idowu now appeals his sentence. For the reasons set forth in this opinion, we affirm the judgment of the district court.
From 2001 to December 2005, Mr. Idowu owned and operated Jo-Jo Motors, a used-car business. On three occasions in late 2003 and early 2004, Mr. Idowu sold heroin to a confidential informant in the office trailer at JoJo Motors.
In 2005, police conducted a search of the office trailer at Jo-Jo Motors with the consent of Mr. Idowu. The search uncovered 409.3 grams of heroin in a safe. Also during the search, police discovered a .357 magnum Smith & Wesson revolver. The record does not reflect where in the office the revolver was found.
Mr. Idowu later was charged in a four-count indictment. The first three counts charged Mr. Idowu with distributing heroin, in violation of 21 U.S.C. § 841(a)(1); these counts corresponded to the three sales of heroin to the confidential informant. The fourth count charged Mr. Idowu with possession with intent to distribute in excess of 100 grams of heroin, also in violation of 21 U.S.C. § 841(a)(1); this count was based on the heroin discovered in the safe. Mr. Idowu pleaded guilty to count four. According to his plea agreement, the remaining counts were treated as relevant conduct for purposes of sentencing.
In addition to increasing Mr. Idowu's offense level to reflect the sales of heroin to the confidential informant, the presentence report ("PSR") recommended a two-level increase in the offense level under U.S.S.G. § 2D1.1(b)(1)*fn1 for possession of the weapon. Mr. Idowu objected to this increase, but the district court overruled the objection. The district court found that Mr. Idowu possessed the weapon within the meaning of section 2D1.1(b)(1). It stated:
Well, as I understand this, if the weapon was present, the increase in the offense level applies unless, as the government indicated, it's clearly, let me use the word, unlikely that the weapon was being used in furtherance of the offense.
I don't think its unlikely in this case or clearly improbable. In fact, I think just the opposite it [sic] is true. I think the most reasonable conclusion to be drawn is that the weapon was there in order to enhance the defendant's business of selling drugs. It was found in the same office from which he sold drugs routinely, specifically, on three occasions involved with the confidential informant in this case alone. It was found there with a substantial amount, that is, 409 grams of heroin.
Regardless of whether or not the defendant was in the business of selling automobiles from that office, he was also clearly in the business of selling drugs from that office. The Court is aware of the fact and it is common knowledge that drug dealers, sellers of drugs, often have in their possession firearms to protect their drugs and their business of selling drugs because, as we all know, they cannot resort to the police for the kind of protection you and I would get from the police without incriminating themselves, so they defend themselves.
The weapon found here was a .357 Magnum Smith & Wesson revolver. That the defendant had constructive possession, at least, of this weapon it seems to me is clear from the evidence. He used the office, he used it routinely to sell drugs from. He was a drug dealer. Drug dealers are known to possess weapons for the purpose of protecti[ng] their drug business and this weapon was found in a place where it would reasonably be if it were being used to protect the drug-selling business.
From all of that, I find that the gun was present as required by the statute and the Guidelines and that the defendant had possession and control over the weapon and that the two-level enhancement applies. So the objection to the calculation of the total ...