United States v. Smith , 51 F. App'x 849 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 3 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-3225
v. D.C. No. 02-CR-20006-GTV
(D. Kansas)
KEVIN SHAWNDALE SMITH,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.
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(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
The defendant was convicted, following the entry of a guilty plea, of
possession with intent to distribute cocaine. The district court enhanced his
sentence two levels under USSG § 2D1.1(b)(1) for possession of a firearm. The
defendant appeals this enhancement. We affirm.
After the defendant had sold cocaine base to a confidential informant three
times over a three-month period, authorities obtained and executed a search
warrant for his apartment. During the search officers found, in addition to $970
in cash and some drugs, two firearms: a Browning Model Hi-Power 9 mm pistol,
with a magazine and eight rounds of 9 mm ammunition, and an unloaded
Norinoco Model SKS 762-39 rifle. Both weapons were found in the living room
– the pistol on an end-table and the rifle leaning against a wall.
The defendant pled guilty to one count of aiding and abetting the
distribution of crack cocaine. He objected to the recommendation in the pre-
sentence report that his base offense level be increased under § 2D1.1(b)(1) for
possession of a firearm. He argued that there was never any reference to a
firearm during any of the drug transactions and that the weapons were in his
apartment purely as a coincidence. He further argued that the amount of drugs
involved was so small that there was no need for a weapon.
The district court rejected these arguments, concluding that the location of
the loaded weapon within eight to ten feet of the drugs overcomes the likelihood
-2-
that it was clearly improbable that the weapons were not related to the drug
transactions.
This court reviews factual findings under § 2D1.1(b)(1) for clear error,
giving due deference to the application of the guidelines to the facts. United
States v. Pompey , 264 F.3d 1176, 1180 (10th Cir. 2001), cert. denied , 534 U.S.
1117 (2002). Application of the increase derives essentially from a factual
determination which this court reviews under a clearly erroneous standard. “The
[enhancement for weapon possession] should be applied if the weapon was
present, unless it is clearly improbable that the weapon was connected with the
offense.” USSG § 2D1.1(b)(1), comment., n. 3. The government bears the initial
burden of proving possession by a preponderance of the evidence. Pompey , 264
F.3d at 1180. This burden may be satisfied by showing that there is a temporal
and spatial relationship between the weapon, the drug trafficking activity, and the
defendant. Id. Once the government has met its burden, the defendant must then
show “that it is clearly improbable the weapon was connected to the offense.” Id.“[T]he focus of § 2D1.1(b)(1) is whether [defendant] possessed a firearm in
connection with the offense to which he pleaded guilty.” United States v.
Dickerson , 195 F.3d 1183, 1888 (10th Cir. 1999). Here, at least one of the drug
transactions occurred at the defendant’s home. Although there was no evidence
that the defendant carried, brandished, loaned, accessed or held either of the
-3-
firearms during any drug transaction, the uncontroverted evidence is that he
possessed a firearm in a location where at least one of the drug sales occurred.
Thus the district court’s imposition of the firearms enhancement was not clearly
erroneous.
Accordingly, the sentence imposed is AFFIRMED .
Entered for the Court
John C. Porfilio
Circuit Judge
-4-