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United States v. Gregory Lee Ziegler, Iii, 28 F.3d 1212, 4th Cir. (1994)

This document is a court opinion from the United States Court of Appeals for the Fourth Circuit regarding the sentencing of Gregory Lee Ziegler III for possession of crack cocaine with intent to distribute. The court affirmed a two-level enhancement for possession of a firearm during the offense but vacated the sentence and remanded for resentencing with a third reduction for acceptance of responsibility. While Ziegler admitted the crack belonged to him and pleaded guilty, the district court denied a third reduction for not providing complete information, which the appeals court found to be in error as Ziegler qualified for the additional reduction. The case was remanded with instructions to resentence Ziegler with the third reduction.
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0% found this document useful (0 votes)
26 views3 pages

United States v. Gregory Lee Ziegler, Iii, 28 F.3d 1212, 4th Cir. (1994)

This document is a court opinion from the United States Court of Appeals for the Fourth Circuit regarding the sentencing of Gregory Lee Ziegler III for possession of crack cocaine with intent to distribute. The court affirmed a two-level enhancement for possession of a firearm during the offense but vacated the sentence and remanded for resentencing with a third reduction for acceptance of responsibility. While Ziegler admitted the crack belonged to him and pleaded guilty, the district court denied a third reduction for not providing complete information, which the appeals court found to be in error as Ziegler qualified for the additional reduction. The case was remanded with instructions to resentence Ziegler with the third reduction.
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28 F.

3d 1212

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of


unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Gregory Lee ZIEGLER,III, Defendant-Appellant.
No. 93-5785.

United States Court of Appeals,


Fourth Circuit.
Submitted June 23, 1994.
Decided July 19, 1994.

Appeal from the United States District Court for the Southern District of
West Virginia, at Beckley. Elizabeth V. Hallanan, District Judge. (CR-9394)
W. Richard Staton, Mullens, WV
Rebecca A. Betts and Victoria B. Major, Charleston, WV
S.D.W.Va.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Before MURNAGHAN and WILKINS, Circuit Judges, and SPROUSE,
Senior Circuit Judge.
OPINION
PER CURIAM:

Gregory Lee Ziegler III pled guilty to possession of crack cocaine with intent to
distribute, 21 U.S.C.A. Sec. 841 (West 1981 & Supp.1994), and received a

sentence of forty-three months. He appeals the district court's two-level


enhancement of his sentence under U.S.S.G. Sec. 2D1.1(b)(1)1 for possession
of a firearm during a drug offense, and its failure to award him a three-level
reduction for acceptance of responsibility. U.S.S.G. Sec. 3E1.1(b). The
government concedes that Ziegler was entitled to a three-level decrease for
acceptance of responsibility. We affirm the enhancement for possession of a
firearm, but find that the district court erred in refusing to grant the third level
of reduction under section 3E1.1(b)(2). We vacate that portion of the sentence
and remand for resentencing.
2

Ziegler was a passenger in a car driven by his co-defendant, Jacquet Lewis


(a/k/a Jacquet Ellison), which was stopped for erratic driving on Interstate 77 in
West Virginia. The car was determined to be a stolen vehicle.2 A search of
Ziegler turned up 2.09 grams of crack hidden in his underwear. A
semiautomatic pistol was also discovered in the car.

Ziegler pled guilty to possession of crack with intent to distribute, but contested
the recommended enhancement for possession of a gun during a drug offense.
He represented through counsel at sentencing that the gun belonged to Lewis
and that he did not know it was in the car until they were stopped and Lewis
asked him to hide it.3 However, Ziegler testified that the crack in the car
belonged to him, that Lewis had packed the crack in a bag before they left from
Georgia, and that he knew Lewis always carried a gun. On these facts, an
enhancement under section 2D1.1(b)(1) was not error. The increase is properly
made if the weapon is present during the offense unless it is clearly improbable
that it is connected to the offense. U.S.S.G. Sec. 2D1.1, comment. (n.3). The
presence of the gun was reasonably foreseeable to Ziegler, making him
accountable for it under section 1B1.3(a)(1)(B). See United States v. White,
875 F.2d 427, 433 (4th Cir.1989). There was no evidence to support a finding
that the weapon was probably unconnected to the offense.

Guideline section 3E1.1(a) provides for a two-level reduction in offense level


when the defendant accepts responsibility for his offense. A third level of
reduction is provided in subsection (b) for a defendant who either provides
timely and complete information about his own involvement or enters a timely
guilty plea. The district court found that Ziegler had accepted responsibility and
had entered a timely guilty plea. The court then erred in denying him a third
level of reduction because he had not, in the court's estimation, provided
complete information about his involvement in the offense.

We therefore affirm the enhancement for possession of a firearm during a drug


offense under section 2D1.1(b)(1). However, we vacate the sentence and

remand with instructions that Ziegler be resentenced with a third level of


reduction under section 3E1.1(b)(2). We dispense with oral argument because
the facts and legal contentions are adequately presented in the materials before
the Court and argument would not aid the decisional process.
6

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

United States Sentencing Commission, Guidelines Manual (Nov.1992)

It had been reported stolen by Lewis' father, who lived in Georgia

Initially, the gun was in a bag with the crack. Ziegler put it under the passenger
seat, and Lewis removed it from there and put it in the console between the
seats, where it was found by police

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