United States v. Johnson ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 2 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-2178
v.
(D.C. No. 95-CR-23-LH)
(District of New Mexico)
ADRIAN LARON JOHNSON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY and LUCERO, Circuit Judges.
Pursuant to a plea agreement, Adrian Johnson pleaded guilty to conspiracy
to possess with intent to distribute more than five grams of a substance containing
cocaine base, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and possession
with intent to distribute of a substance containing cocaine base within 1,000 feet
of a school, in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2. At sentencing,
the district court imposed a two-level enhancement under U.S.S.G. § 2D1.1(b)(1)
*
The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 36.3.
for possession of a firearm during a drug trafficking offense. Johnson appeals,
contending that this enhancement was erroneous.
On December 19, 1994, undercover agent Michael Pelligrini of the Drug
Enforcement Administration Metropolitan Task Force met with Johnson at
Johnson’s home to negotiate the purchase of crack cocaine. The actual
transaction took place at a nearby fast-food restaurant. Agent Pelligrini handed
approximately $1,200 to Johnson; Johnson then pointed to the location of a brown
paper bag. It was later determined that the bag contained 27 net grams of crack
cocaine.
Agent Pelligrini subsequently obtained a search warrant for Johnson’s home
which was executed on December 22 by the DEA and the Bernalillo County
Sheriff’s Department. During a search of the residence, the officers discovered
18.33 net grams of crack cocaine, scales, $1,021 in cash, and written notes and
instructions related to narcotics sales. The officers also found a 12 gauge sawed-
off shotgun, fully-loaded with the safety disengaged, and a .380 caliber semi-
automatic pistol, fully-loaded with a round of ammunition chambered. Both
weapons were in the living room, and Johnson’s fingerprints were found on the
sawed-off shotgun. During the search, Johnson and a companion returned home.
Both men were detained. A search of their vehicle revealed a 9mm Taurus semi-
automatic pistol also with a round of ammunition chambered.
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At the sentencing hearing following his guilty plea, Johnson objected to the
proposed two-level increase under § 2D1.1(b)(1). In response, the government
submitted an affidavit prepared by Agent Pelligrini detailing his investigation and
listing the items found in Johnson’s residence. Adopting the factual findings in
the pre-sentence report, the district court overruled Johnson’s objections and
enhanced his sentence. We review the district court’s factual determinations for
clear error. See United States v. Robertson, 45 F.3d 1423, 1449 (10th Cir. 1995)
To sustain an enhancement under § 2D1.1(b)(1), the government must
prove by a preponderance of the evidence “that a temporal and spatial relation
existed between the weapon, the drug trafficking activity, and the defendant.”
United States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993) (quoting United
States v. Eastland, 989 F.2d 760, 770 (5th Cir. 1993)). “Generally, the
government must provide evidence that the weapon was found in the same
location where drugs or drug paraphernalia are stored or where part of the
transaction occurred.” Id. at 983 (quoting United States v. Hooten, 942 F.2d 878,
882 (5th Cir. 1991)). If the government meets its burden, the defendant must
show that it is “clearly improbable” that the weapon was related to the offense.
See Robertson, 45 F.3d at 1449; see also U.S.S.G. § 2D1.1, comment. (n.3) (“The
adjustment should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.”).
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The evidence presented by the government indicated that loaded weapons,
drugs, a large quantity of money and drug paraphernalia were found in Johnson’s
home. One of the firearms had Johnson’s fingerprints on it. Additionally, the
first meeting between Agent Pelligrini and Johnson took place at Johnson’s home.
We therefore find no error in the district court’s conclusion that the government
met its burden of showing the relationship between the weapon, the offense and
the defendant by a preponderance of the evidence.
The defendant argues that the government presented no evidence that he
had possession of the guns, given that there were other occupants of the
residence. He also contends that because Agent Pelligrini’s affidavit failed to
state sufficient information as to the spatial proximity of the weapons to the
drugs, the district court’s sentencing decision was erroneous. We are
unpersuaded that these arguments are sufficient to establish that it was “clearly
improbable” that the weapons were connected to drug trafficking.
Based on the evidence, the district court judge was not clearly erroneous in
enhancing Johnson’s sentence. AFFIRMED.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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