United States v. Rickie T. Dunning ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1802
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Rickie T. Dunning, * Southern District of Iowa.
*
Appellant. * [UNPUBLISHED]
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Submitted: July 21, 1997
Filed: July 25, 1997
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Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
After Rickie Dunning sold cocaine base to a confidential informant out of a home
in which Dunning was residing, authorities executed a search warrant and discovered
cocaine base, cash, and a loaded .357 caliber revolver on a bedroom closet shelf.
Dunning later pleaded guilty to possessing cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). The district court1 calculated a sentencing range of 135 to 168 months--
1
The Honorable R. E. Longstaff, United States District Judge for the Southern
District of Iowa.
which included a two-level enhancement under U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (1995) (two-level enhancement for possession of dangerous weapon)--
and sentenced Dunning to 135 months imprisonment and five years supervised release.
Dunning’s sole argument on appeal is that the district court should not have enhanced
his sentence, as he lacked knowledge of the revolver’s presence, and thus could not be
deemed to have possessed the gun.
We find no clear error in the district court’s determination that it was not clearly
improbable the revolver was connected with the offense. See U.S. Sentencing
Guidelines Manual § 2D1.1, comment. (n.3) (1995); United States v. Vaughn, 11 F.3d
610, 616 (8th Cir. 1997) (standard of review). The revolver was found on the same
closet shelf as the drugs and the cash Dunning admitted were his; moreover, the closet
was located in the home in which Dunning had been living and had stored drugs, and
from which he had sold cocaine base. See United States v. Macklin, 104 F.3d 1046,
1048 (8th Cir. 1997). We also conclude Dunning’s professed lack of knowledge as to
the presence of the revolver did not bar the district court from assessing the
enhancement. See United States v. McCracken, 110 F.3d 535, 541 (8th Cir. 1997)
(defining constructive possession); United States v. Payne, 81 F.3d 759, 762-63 (8th
Cir. 1996) (§ 2D1.1(b)(1) enhancement proper even though defendant claimed
government did not prove he knew about firearm’s presence).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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