United States v. Vincent Swain ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-1796
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Vincent B. Swain, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: September 12, 2000
Filed: September 19, 2000
___________
Before RICHARD S. ARNOLD, FAGG, and BYE, Circuit Judges.
___________
PER CURIAM.
Vincent B. Swain pleaded guilty to one count of conspiracy to possess with the
intent to distribute more than 500 grams of cocaine. The district court applied a two-
level enhancement under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1998) for
possession of a firearm and sentenced Swain to 156 months imprisonment.
Swain appeals the application of the § 2D1.1(b)(1) enhancement, contending the
Government did not establish by a preponderance of the evidence that Swain possessed
the firearm found during a search of his girlfriend's apartment. We disagree. "The
district court must impose the [§ 2D1.1(b)(1)] enhancement unless it finds that it is
'clearly improbable that the weapon had a nexus to criminal activity.'" United States v.
Fairchild, 189 F.3d 769, 779 (8th Cir. 1999) (quoted case omitted); accord U.S.S.G.
§ 2D1.1 cmt. n.3. "In a conspiracy case, a sufficient nexus is established if 'the weapon
was found in the same location where drugs or drug paraphernalia were stored, or
where part of the conspiracy took place.'" United States v. Tauil-Hernandez, 88 F.3d
576, 580 (8th Cir. 1996) (quoted case omitted). Here, the district court heard evidence
that Swain's girlfriend was involved in the conspiracy with Swain to distribute cocaine,
that Swain periodically stayed at his girlfriend's home, that Swain knew the gun was
in his girlfriend's home, that Swain knew the girlfriend's home was a transfer point for
the drugs involved in the conspiracy, and that the gun was found in close proximity to
drugs and drug paraphernalia. Thus, a sufficient nexus between the gun and the drug
conspiracy to which Swain pleaded guilty was established, and the district court did not
commit clear error in applying the § 2D1.1(b)(1) enhancement. See id. (§ 2D1.1(b)(1)
enhancement appropriate because defendant knew coconspirators possessed gun in
furtherance of conspiracy, even though defendant testified she was afraid of gun and
never used it); Fairchild, 189 F.3d at 779 (weapons owned by defendant and found in
coconspirator's home were sufficient evidence to justify § 2D1.1(b)(1) enhancement to
defendant's sentence); United States v. Turpin, 920 F.2d 1377, 1386 (8th Cir. 1990)
("single gun may justify an enhancement of the sentences of both [coconspirators],
since possession of a gun by either would suffice to justify an upward adjustment of the
other's offense level if it was reasonably foreseeable that one of them would possess
a gun in furtherance of the jointly undertaken criminal activity").
We have reviewed Swain's remaining arguments and conclude they are likewise
without merit. We affirm. See 8th Cir. R. 47B.
-2-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-