United States v. Jimmy Walker ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3947
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United States of America, *
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Appellee, *
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v. *
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Jimmy A. Walker, *
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Appellant. *
___________ Appeals from the United States
District Court for the
No. 96-4218 Eastern District of Missouri.
___________ [UNPUBLISHED]
Jimmy A. Walker, *
*
Appellant, *
*
v. *
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United States of America, *
*
Appellee. *
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Submitted: June 26, 1997
Filed: July 7, 1997
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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.
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PER CURIAM.
Jimmy A. Walker challenges the 78-month sentence imposed by the district
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court on resentencing for a drug offense after his firearm conviction had been vacated
in light of Bailey v. United States, 116 S. Ct. 501, 506 (1995). We affirm.
Walker argues that the district court clearly erred when it imposed a two-level
enhancement under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) for possessing
firearms because the government failed to prove the firearms discovered in his
apartment were connected to his drug offense. We disagree. Walker was using his
residence to distribute crack and powder cocaine, and five firearms (four of which were
loaded) were found behind a couch in his living room. See United States v. Williams,
10 F.3d 590, 595-96 (8th Cir. 1993) (where residence was used for drug dealing,
sufficient nexus existed between weapon found in second-floor bedroom and drugs
found in first-floor kitchen); United States v. Hammer, 3 F.3d 266, 270 (8th Cir. 1993)
(presence of guns in house where drugs were packaged and sold is sufficient), cert.
denied, 510 U.S. 1139 (1994).
Walker also argues that the district court improperly sentenced him for
possessing cocaine base, as the government failed to prove that the substance seized
from his apartment was crack cocaine. See U.S. Sentencing Guidelines Manual
§ 2D1.1(c), Note (D) (1995) (defining “cocaine base” as “crack,” which in turn is
defined as “the street name for a form of cocaine base, usually prepared by processing
cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy,
rocklike form”); id. App. C, amend. 487 (stating that “forms of cocaine base other than
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The Honorable George F. Gunn, United States District Judge for the Eastern
District of Missouri.
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crack (e.g., coca paste . . .) will be treated as cocaine”). We conclude, however, that
the district court did not clearly err in determining the government had proved by a
preponderance of the evidence that the drug at issue was crack. See United States v.
Williams, 97 F.3d 240, 243 (8th Cir. 1996) (standard of review). A police officer
opined at Walker’s resentencing hearing that a rocklike substance discovered in
Walker’s apartment was crack, a lab report identified the substance as cocaine base,
and Walker did not introduce evidence to the contrary. See United States v. Wilson,
103 F.3d 1402, 1407 (8th Cir. 1997); United States v. Williams, 982 F.2d 1209, 1212
(8th Cir. 1992). The court’s finding is also supported by Walker’s assent at his plea
hearing to the court’s repeated references to the drug offense as involving “crack
cocaine.” See United States v. Abdul, No. 96-3419, 1997 WL 311572, at *2 (7th Cir.
June 10, 1997) (Lay, J., sitting by designation).
Walker has also filed a pro se notice of appeal challenging the district court’s
denial of his ineffective-assistance-of-counsel claim based on his previous counsel’s
alleged refusal to file a notice of appeal after his original sentencing. We note that
Walker appears to have abandoned this claim on appeal. In any event, we conclude the
district court’s finding that Walker agreed not to appeal after consulting with his
previous counsel is not clearly erroneous. See United States v. Adipietro, 983 F.2d
1468, 1472 (8th Cir. 1993).
The judgments are affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT
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