United States v. McFarlin ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 9 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-1294
RODNEY McFARLIN, (D.C. No. 98-CR-243-N)
(D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges. **
Defendant Rodney McFarlin pled guilty to selling methamphetamine and
guns to a federal agent. He appeals the district court’s enhancement of his
sentence pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous
weapon during a drug sale. We exercise jurisdiction under 18 U.S.C. § 3742(a),
and affirm.
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and appellate record, the panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2)(c); 10th Cir. R.
34.1(G). This case is therefore ordered submitted without oral argument.
Defendant was a member of a conspiracy that sold methamphetamine in
Colorado Springs, Colorado. On December 18, 1997, Defendant sold two guns to
Special Agent Scott Thomasson. On December 27, Defendant drove up in his
truck for another meeting with Agent Thomasson, parking the truck within the
agent’s view. Defendant and a confidential informant proceeded to sell Agent
Thomasson 119 grams of methamphetamine. Then the agent asked Defendant if
he had any more guns for sale. Defendant asked the informant go to the cab of
the truck to retrieve an unloaded gun, which Defendant then sold to the federal
agent.
After his arrest and indictment, Defendant agreed to cooperate with the
government and pled guilty to (1) conspiracy to possess with intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (2) being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The
district court enhanced Defendant’s sentence two levels pursuant to U.S.S.G.
§ 2D1.1(b)(1) for possession of a dangerous weapon during a drug sale, finding
that it was not clearly improbable that Defendant’s possession of the weapon was
related to the drug transaction:
Here, defendant arrived to make the drug sale in his truck. After the
sale was complete, he and the undercover agent agreed to the gun
transaction. Defendant sent the informant to his truck to retrieve the
weapon, all within the view of the agent. I find a direct spatial and
temporal connection between the weapon and the drugs,
notwithstanding that the sales were separate.
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The district court sentenced Defendant to 112 months imprisonment and 5 years
of supervised release, a downward departure from the imprisonment range of 188
to 235 months.
We review the district court’s factual determination that Defendant
possessed a dangerous weapon during the commission of the offense for clear
error. See United States v. Dickerson , ___ F.3d ___, 1999 WL 961189, at *4
(10th Cir. 1999). “Once the government establishes that the gun was possessed in
[temporal or spatial] proximity to the drugs or transaction, the burden shifts to the
defendant to show it is clearly improbable that the weapon was related to the
offense.” United States v. Flores , 149 F.3d 1272, 1280 (10th Cir. 1998), cert.
denied , 119 S. Ct. 849 (1999) (internal quotations omitted). “[E]nhancement
under § 2D1.1(b)(1) is designed to reflect the increased danger of violence when
drug traffickers add firearms to the mix.” Id. The relationship between the
weapon and the drug offense is not clearly improbable merely because the gun
was not readily accessible during the drug offense. See United States v. Nguyen ,
1 F.3d 972, 973 (10th Cir. 1993). See also United States v. Roberts , 980 F.2d
645, 648 (10th Cir. 1992) (upholding a § 2D1.1(b)(1) sentencing enhancement
despite the fact that the guns were unloaded).
Defendant argues that because the sale of the drugs and the sale of the gun
were separate transactions, his possession of the weapon was not related to the
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drug sale. Defendant further argues that the gun’s presence did not increase the
danger of violence because the gun was unloaded and because he possessed the
gun not for use but for sale. These facts, however, do not meet Defendant’s
burden of showing that the district court clearly erred in finding that Defendant’s
possession of the gun was related to the drug sale. The proximity of the gun and
the drugs is sufficient evidence of relatedness, even if the transactions were
separate. Defendant’s contentions that the gun was intended for sale, was
unloaded, and was not readily accessible do not show that there was no increase
in the danger of violence. Accordingly, the decision of the district court is
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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