United States v. Tucker , 103 F. App'x 417 ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2624
UNITED STATES OF AMERICA,
Appellee,
v.
ANDRE D. TUCKER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
David A.F. Lewis on brief for appellant.
Donald C. Lockhart and Gerard B. Sullivan, Assistant United
States Attorneys, and Craig N. Moore, United States Attorney, on
brief for appellee.
July 9, 2004
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Per Curiam. Defendant-appellant Andre D. Tucker
("Tucker") appeals the sentence imposed by the district court
challenging the two-level enhancement under U.S.S.G. § 2D1.1(b)(1)
for possession of a firearm. We affirm.
Tucker was arrested at his apartment on February 3,
2000.1 Agents found a loaded .380 semiautomatic pistol with an
obliterated serial number and $2,590.00 in cash in Tucker's bedroom
and 78.13 grams of crack cocaine in a locked case in the basement
of Tucker's building. Two other tenants lived in Tucker's building
in separate apartments; all had access to the basement.
Pursuant to a written plea agreement, Tucker pleaded
guilty to a 10-count information. Count Ten charged Tucker with
possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c).2 At Tucker's initial
sentencing hearing, the district court determined that Tucker's
base offense level was 32, with a four-level leader/organizer
enhancement pursuant to U.S.S.G. § 3B1.1 and a three-level
1
The arrest occurred after Tucker and several co-conspirators
made cocaine sales to an undercover officer and an informant
between June and August 1999.
2
Count One charged Tucker with conspiracy to distribute cocaine
and cocaine base in violation of 21 U.S.C. § 846. Counts Two
through Seven charged Tucker with distribution of cocaine and
cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2. Count Eight charged Tucker with possession of cocaine base
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2. Count Nine charged Tucker with possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
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reduction for acceptance of responsibility pursuant to U.S.S.G.
§ 3E1.1. Accordingly, the district court found Tucker's total
offense level to be 33 and designated a criminal history category
of V, yielding a guideline range of 210 to 266 months. The court
sentenced Tucker to 230 months imprisonment on Counts One through
Eight, to be served concurrently, 120 months imprisonment on Count
Nine, to be served concurrently with the sentences for Counts One
through Eight, and 60 months imprisonment for Count Ten, to run
consecutive to the other sentences.
Tucker appealed, arguing that his convictions on Counts
Eight and Ten should be vacated due to errors during the plea
colloquy. The government conceded that its recitation of the facts
in support of the § 924(c) charge was deficient under Fed. R. Crim.
P. 11(f), primarily because it had stated that the cocaine was
discovered in Tucker's bedroom. This court accepted the
government's concession, vacated Tucker's conviction on Count Ten,
and remanded the case for further proceedings. See United States
v. Tucker, No. 00-2192 (1st Cir. Apr. 1, 2002).
The government declined to prosecute the § 924(c) count
after remand. At the re-sentencing hearing, the district court
determined that Tucker's base offense level was 32, with a four-
level leader/organizer enhancement, a two-level enhancement for
possession of a firearm under U.S.S.G. § 2D1.1(b)(1), and a three-
level reduction for acceptance of responsibility. Tucker did not
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object to the two-level enhancement for possession of a firearm at
the sentencing hearing. The court found Tucker's total offense
level to be 35 and designated a criminal history category at V,
yielding a guideline range of 262 to 327 months. Tucker was
sentenced to 290 months imprisonment on Counts One and Eight, 240
months imprisonment on Counts Two through Seven, and 120 months
imprisonment on Count Nine, all sentences to be served
concurrently. Tucker appeals once more, now arguing that the
district court erred in enhancing his sentence under U.S.S.G.
§ 2D1.1(b)(1) for possession of a firearm.
Since Tucker did not object at trial to the two-level
enhancement, we review for plain error only. See United States v.
Connolly, 341 F.3d 16, 31 (1st Cir. 2003). Tucker therefore must
establish "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity, or
public reputation of judicial proceedings." United States v.
Sabetta, No. 03-1506, 2004 WL 1403353, at *3 (1st Cir. June 24,
2004)(citations omitted). Because Tucker has failed to meet this
burden, we affirm.
Tucker concedes that he possessed the gun. He argues
that the government failed to prove the gun was present during the
charged offense. He bases this argument on application note 3 to
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U.S.S.G. § 2D1.1(b)(1), which states:
The adjustment should be applied if the weapon
was present, unless it is clearly improbable
that the weapon was connected with the
offense. For example, the enhancement would
not be applied if the defendant, arrested at
his residence, had an unloaded hunting rifle
in the closet.
U.S.S.G. § 2D1.1(b)(1), comment n.3.
Tucker argues that there was no evidence the gun was
present during the controlled sales he made to the undercover
officer and informant in the summer of 1999. Furthermore, he
argues that the gun found in his apartment was not "present" in
relation to the cocaine found in the basement because all the
tenants in the building had access to the basement. We disagree.
Factual determinations made in the course of sentencing
must be supported by a preponderance of the evidence. See United
States v. McDonald, 121 F.3d 7, 9 (1st Cir. 1997). While there
must be a certain nexus between the weapon and the offense for the
enhancement to apply, it is well settled in this circuit that "when
the weapon's location makes it readily available to protect either
the participants themselves during the commission of the illegal
activity or the drugs and cash involved in the drug business, there
will be sufficient evidence to connect the weapon(s) to the offense
conduct." Id. at 10 (quoting United States v. Corcimiglia, 967
F.2d 724, 727 (1st Cir. 1992)(internal quotations omitted)(holding
that the two-level enhancement was appropriate where drugs, cash
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and drug scales were found in defendant's parlor and a gun was
found in a secret compartment in defendant's bathroom vanity)).
Tucker was arrested at his home with a significant amount of cash
and a loaded gun in his bedroom as well as cocaine in the basement
of his building. The fact that other tenants had access to the
basement does not alter the result. Tucker admitted that the
cocaine in the basement was his in pleading guilty to possessing
the cocaine with intent to distribute it. The gun's location in
Tucker's bedroom made it readily available to Tucker to protect his
cash and the drugs in the basement. See id.; United States v.
Paulino, 887 F.2d 358 (1st Cir. 1989)(holding that the two-level
enhancement was appropriate where the gun, cash, and a drug ledger
were found in one apartment and the drugs were found in a different
apartment in the same building).
The two-level enhancement for possession of a firearm
"reflects the increased danger of violence when drug traffickers
possess weapons." U.S.S.G. § 2D1.1(b)(1), comment n.3; see United
States v. Almonte (stating that "it is not unreasonable to believe
that drug distributors who have loaded guns nearby are likely to
use the guns in committing or attempting to commit drug offenses").
In this case, the gun in Tucker's bedroom was loaded, readily
available for Tucker's use should the need arise. From this
evidence the district court concluded, amply supported by the
evidence, that Tucker possessed the loaded gun to protect himself,
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his drugs in the basement, and the cash in his apartment. See
McDonald, 121 F.3d at 7.
Affirmed.
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