United States v. Stephen Curtner , 116 F. App'x 42 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1590
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Stephen A. Curtner, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 15, 2004
Filed: November 23, 2004
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Before WOLLMAN, HEANEY, and FAGG, Circuit Judges.
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PER CURIAM.
Stephen A. Curtner pleaded guilty to being a felon in possession of a firearm.
According to undisputed facts in Curtner’s presentence report (PSR), officers learned
of an outstanding warrant for Curtner’s arrest during the course of stopping him for
a traffic violation as he approached a residence under surveillance for drug activity.
The officers arrested Curtner and searched his car. Inside the vehicle, they found a
sawed-off shotgun, shotgun shells, seventeen plastic bags containing 1.5 grams of
methamphetamine, ten unused syringes, and a scale containing methamphetamine
residue. Curtner told officers he had used methamphetamine for a couple of years,
the seventeen bags of methamphetamine belonged to him, and a friend had given him
the shotgun about a week before his arrest. Curtner explained only that “he had the
shotgun because some people were waving guns around friends close to him.” Based
on these facts, the PSR recommended a four-level enhancement under U.S.S.G. §
2K2.1(b)(5) for possessing the firearm in connection with another felony offense, i.e.,
Curtner’s drug possession, a felony under Missouri law. Curtner objected to the
PSR’s recommendation to impose the enhancement, but not to the PSR’s recitation
of the underlying facts. After a hearing, the district court* imposed the enhancement.
On appeal, Curtner asserts imposition of the enhancement violates his due
process rights because there was no evidence his possession of the firearm was
connected to his drug possession. We review the district court’s finding that Curtner
possessed the firearm in connection with his drug possession for clear error, and find
none. United States v. Bell, 310 F.3d 604, 605 (8th Cir. 2002). Possessing a firearm
at the same time as committing a felony drug offense requires a § 2K2.1(b)(5)
enhancement “‘unless it is clearly improbable that the firearm was used in connection
with that felony.’” United States v. Kanatzar, 370 F.3d 810, 815 (8th Cir. 2004)
(quoting United States v. Marks, 328 F.3d 1015, 1017 (8th Cir. 2003)). Here, the
proximity of the shotgun to the drugs and drug paraphernalia, all found inside
Curtner’s car, supports the enhancement because Curtner had the potential to use the
gun to protect himself or his drugs. See Bell, 310 F.3d at 605-06 (citing United States
v. Martinez, 258 F.3d 760, 761-62 (8th Cir. 2001)). The district court was not
required to find the shotgun’s presence in the car was a coincidence. See Kanatzar,
370 F.3d at 816.
We thus affirm Curtner’s sentence.
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*
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
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