United States v. Demetrius Key ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2220
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Demetrius Darnez Key, also known *
as Oooh, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 30, 2003
Filed: January 12, 2004
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Before BYE, BOWMAN, and MELLOY, Circuit Judges.
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PER CURIAM.
Demetrius Key pleaded guilty to conspiring to distribute at least 5 kilograms
of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court1
sentenced him to 360 months imprisonment and 5 years supervised release on the
conspiracy count and 120 months imprisonment and 3 years supervised release on the
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
felon-in-possession count, to be served concurrently. On appeal, Key argues the
district court erred in enhancing his conspiracy sentence under U.S.S.G.
§ 2D1.1(b)(1) for possessing a dangerous weapon. We affirm.
The district court did not clearly err in enhancing Key’s sentence. In his plea
agreement Key stipulated, and at sentencing he testified, that he possessed a handgun
at a residence where he received a shipment of cocaine. See U.S.S.G. § 2D1.1(b)(1),
comment. (n.3) (enhancement should be applied if weapon was present, unless it is
clearly improbable weapon was connected with offense); United States v. Frazier, 280
F.3d 835, 853 (8th Cir.) (government must show by preponderance of evidence both
that weapon was present and that it was not clearly improbable weapon had nexus to
criminal activity; nexus is established if weapon was stored in same location as drugs,
and district court’s factual finding is reviewed for clear error), cert. denied, 537 U.S.
911 (2002). Key testified that he kept the gun only for personal protection, but the
district court was entitled to discredit his testimony and conclude that the gun served
the dual purpose of protecting Key and facilitating the drug conspiracy. See United
States v. Sample, 213 F.3d 1029, 1034 (8th Cir. 2000) (credibility determinations are
left to sentencing court); Brown v. United States, 169 F.3d 531, 533 (8th Cir. 1999)
(lawful use or intended use of firearm for one purpose does not preclude use of
firearm for prohibited purpose of facilitating drug trade, and therefore does not
automatically remove firearm from purview of § 2D1.1(b)(1)).
Accordingly, we affirm.
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