United States v. McKinnon ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 22 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6098
(D.C. No. CR-96-134-R)
JACK MCKINNON, JR., (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, MCKAY, and LUCERO, Circuit Judges.
Defendant appeals from the district court’s imposition of a four-level
enhancement on his criminal sentence because he possessed a firearm “. . . in
connection with another felony offense; or possessed . . . any firearm . . . with
knowledge, intent, or reason to believe that it would be used or possessed in
*
This order and judgment is not binding precedent, except under the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.
connection with another felony offense.” 1 U.S.S.G. § 2K2.1(b)(5). We have
jurisdiction under 18 U.S.C. § 3742(a)(2), and affirm.
On November 9, 1995, Oklahoma City police received a tip that an Eddie
Lykins was interested in buying methamphetamine. In response to the tip, the
police set up a controlled buy of one-half ounce of methamphetamine for
$1,000.00. When defendant arrived with Eddie Lykins at the prearranged meeting
place, an undercover officer showed the men a plastic bag containing one-half
ounce of methamphetamine. Defendant put $1,000.00 in cash on the table, and
asked to sample the drug. The undercover officer refused, and defendant put his
money back in his pocket and started to leave. The police then arrested
defendant. As they did so, the defendant reached toward his waistband, as if
reaching for a gun. After defendant was under arrest, police found a .380 caliber
pistol in his pants. Compatible ammunition, a small amount of methamphetamine,
and drug paraphernalia were found in his car.
Defendant entered into a plea agreement pursuant to which he pleaded
guilty to one count of possession of a firearm and ammunition after prior
conviction of a felony. At sentencing, the district court found that defendant had
1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
-2-
attempted to possess methamphetamine with intent to distribute the drug, and
possessed a firearm with reason to believe that a felony was about to be
committed. As a result, the court applied the four-level enhancement of U.S.S.G.
§ 2K2.1(b)(5) in calculating defendant’s sentence.
On appeal, defendant argues that: (1) he made no substantial step toward
the purchase of methamphetamine and, therefore, there is a lack of an “attempt
crime” and of a felony offense within the meaning of § 2K2.1(b)(5); and (2) there
is no evidence that he possessed a firearm in connection with the failed purchase.
These objections are timely raised and we thus review the “district court’s factual
findings for clear error, and we review its legal interpretation of the guidelines de
novo.” United States v. Norman, Nos. 96-1342, 96-1359, 1997 WL 735338, at *4
(10th Cir. Nov. 28, 1997).
We agree with the district court that defendant made a substantial step
toward the purchase of methamphetamine when he produced the required amount
of money in response to the undercover officer’s production of the drug. The
district court therefore did not err in finding that defendant “attempted to possess
with intent to distribute methamphetamine,” a felony offense within the meaning
of U.S.S.G. § 2K2.1(b)(5). Defendant’s reliance on United States v. Joyce, 693
F.2d 838, 840-42 (8th Cir. 1982), is misplaced, as the defendant in that case
refused to produce any money with which to complete the drug transaction.
-3-
We also agree with the district court’s finding that defendant possessed a
firearm with reason to believe that it would be used or possessed in connection
with another felony. See R. Vol. II at 27; see also U.S.S.G. 2K2.1(b)(5). The
firearm, though apparently unloaded, was hidden in defendant’s pants, and he
reached for it when agents first attempted to place him under arrest. See United
States v. Gomez-Arrellano, 5 F.3d 464, 467 (10th Cir. 1993) (holding “[a]
weapon’s physical proximity to narcotics may be sufficient to provide the nexus
required between the weapon and the drug charges”).
AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-4-