United States v. Lang, S. ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 8 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. Nos. 96-3303 & 96-3304
(D.C. Nos. 94-CR-10121-1
SOUPHAPHONE LANG and & 94-CR-10121-2)
DOUANGMALA LANG, (D. Kan.)
Defendants-Appellants.
ORDER AND JUDGMENT *
Before TACHA, MCKAY, and BALDOCK, Circuit Judges.
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. 34.1.9. These cases are
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This order and judgment is not binding precedent, except under the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.
Defendants Souphaphone and Douangmala Lang appeal the district court’s
judgment following this court’s remand for resentencing on separate drug
trafficking convictions. On appeal, 1 they raise a single issue, a challenge to the
district court’s application of a two level enhancement to their sentences pursuant
to USSG § 2D1.1(b)(1) for possession of a firearm. Our jurisdiction over these
appeals arises from 28 U.S.C. § 1291. We review de novo the district court’s
legal interpretation of the Sentencing Guidelines, and review for clear error that
court’s factual determinations at sentencing. See United States v. Johnson, 42
F.3d 1312, 1320 (10th Cir. 1994). The underlying facts supporting defendants’
convictions are set out in United States v. Lang, 81 F.3d 955 (10th Cir. 1996).
The sentencing enhancement set out in § 2D1.1(b)(1) “reflects the
increased danger of violence when drug traffickers possess weapons.” United
States v. Contreras, 59 F.3d 1038, 1040 (10th Cir. 1995). Applicability of the
enhancement can be established “if the government proves by a preponderance of
the evidence that a temporal and spatial relation existed between the weapon, the
drug trafficking activity, and the defendant.” United States v. Roederer, 11 F.3d
973, 982 (10th Cir. 1993) (quotation omitted). Once the government meets its
burden, the defendant has the burden to demonstrate “that the increase should not
1
These cases were filed separately. They are joined for purposes of
disposition only.
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apply because it is ‘clearly improbable’ that the gun was connected to the
offense.” Contreras, 59 F.3d at 1040.
Defendants here neither testified nor presented evidence at their hearing on
resentencing. They contend that the government did not meet its burden at
resentencing because 1) their arrest and the seizure of the drugs did not occur in
the trailer where the weapon was located, 2) although a small amount of drugs
was seized from the trailer, no other evidence of drug trafficking, such as books,
scales, or paraphernalia, was found in the trailer, 3) no drug buys had been
observed occurring at the trailer, 4) there was no testimony that either of them
had touched the weapon, and 5) the weapon was purchased for personal protection
only. Douangmala Lang asserts that he did not live at the trailer, had been there
but a short time before the arrest, and was not aware of the location of the
weapon. Souphaphone Lang asserts that the gun did not belong to him, but to his
brother, Douangmala. Defendants also take issue with the district court’s
comments that the weapon was not a hunting weapon. See Application Note 3 to
USSG § 2D1.1(b)(1) (“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.”). They
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contend that the district court relied on its own “testimony,” in violation of their
Sixth Amendment rights to confront witnesses.
None of these arguments is persuasive under the facts of this case. We
agree with the district court that the government met its burden at resentencing to
demonstrate temporal and spatial proximity of the weapon, the illegal activity and
the defendants. The drugs were taken from the trailer where the weapon was
located; drugs were also found at the trailer; the weapon was loaded and found
under the couch in the living room of the trailer. The government was not
required to prove that drug buys occurred at the trailer, see Contreras, 59 F.3d at
1039 (drugs merely stored at defendant’s home); Roederer, 11 F.3d at 983(evidence must show only that weapon was found where drugs were stored or
where part of transaction occurred). The Langs both knew the gun was present at
the trailer, and either owned or controlled it, see United States v. Payne, 81 F.3d
759, 762 (8th Cir. 1996) (constructive possession, i.e. ownership, dominion or
control, is sufficient to support enhancement under § 2D1.1(b)(1)). Under these
facts, the district court’s conclusion was not clearly erroneous, see Contreras, 59
F.3d at 1040.
Finally, the district court did not rely on its own “testimony” about the
nature of the weapon to support its conclusion. The government met its burden
on resentencing; defendants failed to demonstrate that it was “clearly improbable”
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that the weapon was connected to the offense. The district court’s comments
about the applicability of the exception noted in Application Note 3 to USSG
§ 2D1.1(b)(1) did not violate defendants’ Sixth Amendment rights.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED.
Entered for the Court
Monroe G. McKay
Senior Circuit Judge
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