United States v. Lamont Netter ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1345
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Lamont Netter, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 7, 1997
Filed: August 15, 1997
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Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.
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PER CURIAM.
Lamont Netter appeals the sentence imposed on him by the District Court1 at
resentencing following remand. We affirm.
When authorities searched Lamont Netter&s apartment following his arrest in
connection with an arranged cocaine transaction in a parking lot, they found twenty-one
ounces of cocaine in a bedroom closet, one kilogram of cocaine underneath a bed in the
1
The Honorable Jean C. Hamilton, Chief Judge, United States District Court for
the Eastern District of Missouri.
same room, and a loaded .22 caliber semi-automatic pistol lying beneath the bed next
to the kilogram of cocaine. Netter pleaded guilty to possessing cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) (1994), and a jury convicted him of
using or carrying a firearm in relation to the cocaine-trafficking offense, in violation of
18 U.S.C. § 924(c)(1) (1994). After the firearm conviction was affirmed on appeal, see
United States v. Netter, 62 F.3d 232 (8th Cir. 1995), our judgment was vacated and the
matter was remanded to us for further consideration in light of Bailey v. United States,
116 S. Ct. 501 (1995), see Netter v. United States, 116 S. Ct. 1411 (1996). On
remand, we reversed the firearm conviction, vacated the sentence on the drug count,
and remanded the case to the District Court to consider whether to assess a sentencing
enhancement under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1995)
(permitting increase of two levels if firearm was possessed). See U.S. v. Netter, No.
95-1332 (8th Cir. Oct. 7, 1996) (judgment reversing, vacating, and remanding). The
District Court concluded that the enhancement was warranted, recalculated the
Guidelines range applicable to the drug count with the enhancement, and resentenced
Netter at the bottom of the revised range to 121 months' imprisonment and 4 years'
supervised release. On appeal, Netter challenges the firearm enhancement to his drug
sentence.
The commentary to § 2D1.1 explains that the two-level enhancement should be
applied if the weapon was present, unless it was clearly improbable that the weapon
was connected with the offense. See U.S. Sentencing Guidelines Manual § 2D1.1,
commentary (n.3) (1995). The government has the burden of proving by a
preponderance of the evidence both that the weapon was present and that it is probable
that the weapon was connected with the drug offense. See United States v.
McCracken, 110 F.3d 535, 541 (8th Cir. 1997). Here, the gun was found hidden
beneath a bed in Netter&s apartment next to a significant quantity of cocaine--the same
type of drug he pleaded guilty to possessing with intent to distribute. The District
Court did not clearly err in assessing the enhancement. See id. at 542 (standard of
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review; affirming enhancement where firearms and drugs were found in defendants'
residence).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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