United States v. Alexander Malave , 83 F. App'x 151 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1484
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Minnesota.
*
Alexander Malave, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 18, 2003
Filed: December 15, 2003
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Before MURPHY, LAY, and FAGG, Circuit Judges.
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PER CURIAM.
A two-count indictment charged Alexander Malave with possessing with intent
to distribute, on August 30, 2002, about 450 grams of methamphetamine and 587
grams of cocaine. Police found the drugs, along with five guns, ammunition,
magazines, and gun silencers or suppressors, when they searched Malave’s apartment,
which he shared with his child and the child’s mother. The methamphetamine was
found in Malave’s bedroom closet, and the guns were found in an armoire about five
feet from the closet. Police also found surgical masks, gloves, and a knife in the
armoire, and surveillance equipment in a crawl space in Malave’s bedroom. One
pinhole camera was mounted to Malave’s bedroom window, and another was
mounted to an exterior garage light. Police found the cocaine in the child’s bedroom
and in a computer room. In the kitchen, police found a stun gun, a police scanner,
and written police radio frequencies. Police arrested Malave and found about $1,000
on his person.
Malave pleaded guilty to the cocaine offense, and litigated at sentencing
whether he was entitled to a mitigating-role adjustment, and whether a two-point
enhancement applied for his possession of firearms in connection with a controlled-
substance offense. Having heard testimony from an investigator and Malave’s
girlfriend and mother, the district court* found insufficient evidence that Malave was
“substantially less culpable” than the average participant, see U.S.S.G. § 3B1.2, n.3.
The district court also rejected Malave’s claim that the guns were not used in
connection with the distribution of drugs but were used merely for target practice,
given the number and types of guns and ammunition found in his bedroom and their
proximity to a significant amount of drugs, see U.S.S.G. § 2D1.1(b)(1). The district
court sentenced Malave to 108 months in prison, and he appeals, repeating his
sentencing arguments.
We review for clear error the district court’s factual finding concerning
Malave’s role in the offense, see United States v. Lopez-Arce, 267 F.3d 775, 784 (8th
Cir. 2001), and find none. The nature of the items found at his residence show
Malave was “deeply involved” in the criminal acts, see United States v. Thompson,
60 F.3d 514, 518 (8th Cir. 1995), and do not support his contention that he merely
operated a storage facility for drugs. Likewise, the district court did not commit clear
error in applying a two-level enhancement to Malave’s offense level based on his
possession of the guns. See United States v. Betz, 82 F.3d 205, 210 (8th Cir. 1996)
(standard of review; concerning application of § 2D1.1(b)(1) enhancement,
*
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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government has burden to show by preponderance of evidence dangerous weapon
was present and it was not clearly improbable that weapon had nexus with criminal
activity). Accordingly, we affirm.
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