United States v. Joseph Johnston ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3555
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Joseph K. Johnston, *
*
Appellant. *
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Submitted: April 16, 2004
Filed: June 10, 2004
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Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Joseph K. Johnston pleaded guilty to two counts of possession of destructive
devices in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. The district court1
imposed concurrent sentences of forty-six months’ imprisonment and three years’
supervised release on each count. Johnston appeals the district court’s determination
that he possessed the destructive devices “in connection with” another felony offense,
a conclusion that resulted in application of a four-level enhancement under United
States Sentencing Guidelines § 2K2.1(b)(5). We affirm.
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The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
Johnston was stopped for a traffic violation. During the course of the stop,
officers observed an improvised explosive device in the vehicle. Johnston was placed
under arrest, following which the officers conducted an inventory search of the
vehicle’s trunk, where they found another improvised explosive device as well as
materials commonly associated with the illegal manufacture of methamphetamine.
They also found a video camera that appeared destined to be placed inside a bird
house (also found in the trunk) and used for surveillance at Johnston’s residence.
Officers then obtained a search warrant, which they executed at the residence
Johnston shared with his girlfriend. There they found additional improvised
explosive devices and components that could have been assembled into such devices.
The officers also recovered a number of drug-related items from this same small area
of the basement including articles commonly used in the illegal manufacture of
methamphetamine, such as a chemistry flask, plastic tubing, rubber stoppers, glass
tubes, scales, and plastic bags. Additionally, Johnston’s girlfriend stated during an
interview that Johnston had manufactured methamphetamine at their residence.
The district court’s finding regarding Johnston’s purpose in possessing the
destructive devices is reviewed for clear error. United States v. Regans, 125 F.3d
685, 686 (8th Cir. 1997).
United States Sentencing Guidelines § 2K2.1(b)(5) provides that “[i]f the
defendant used or possessed any firearm or ammunition in connection with another
felony offense ... increase [the offense level] by 4 levels.” Application note 1 to
U.S.S.G. § 2K2.1 states that the term “firearm” includes any destructive device. The
enhancement applies, where the other felony offense is a drug crime, if the presence
of the destructive devices facilitates, or has the potential to facilitate, the drug crime.
United States v. Kanatzar, No. 03-3376, slip op. at 6 (8th Cir. June 7, 2004); Regans,
125 F.3d at 686 (holding that this interpretation of the phrase “in relation to” in 18
U.S.C. § 924(c)(1) applies equally to the “in connection with” language of U.S.S.G.
§ 2K2.1(b)(5)). In fact, the destructive devices’ close physical proximity to the drug-
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manufacturing materials alone “may be sufficient to provide the nexus required
between the weapon and the [other felony offense]” because the possibility exists that
the destructive devices may facilitate the illegal drug manufacturing. United States
v. Johnson, 60 F.3d 422, 423 (8th Cir. 1995) (per curiam). The enhancement is
inapplicable, however, if the proximity of the destructive devices to the drug
manufacturing materials is coincidental or accidental, Regans, 125 F.3d at 686, or if
it otherwise appears “clearly improbable” that they were possessed in connection
with another felony offense. United States v. Linson, 276 F.3d 1017, 1018 (8th Cir.
2002).
Given the nature of the devices, their close physical proximity to the drug
manufacturing materials found in the residence, the fact that Johnston had destructive
devices and drug manufacturing materials with him at the time of his arrest, the lack
of any indication that their presence in the vehicle or residence was coincidental or
accidental, and the girlfriend’s statement that Johnston manufactured
methamphetamine in the house, we conclude that there is a sufficient nexus between
the destructive devices and Johnston’s illegal methamphetamine manufacturing to
support application of the U.S.S.G. § 2K2.1(b)(5) enhancement. Because the
destructive devices and components thereof might have emboldened Johnston in his
drug-related conduct, they therefore had the potential of facilitating another felony
offense. Cf. United States v. Kolley, 330 F.3d 753, 757 (6th Cir. 2003).
The sentence is affirmed.
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