United States v. Robert C. Zimmerman ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2183
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Robert Charles Zimmerman, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 17, 2003
Filed: March 5, 2004
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Before MORRIS SHEPPARD ARNOLD, HEANEY, and RILEY, Circuit Judges.
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PER CURIAM.
Robert Zimmerman appeals from the sentence imposed following the entry of
his plea of guilty to a charge of conspiring to distribute methamphetamine. See
21 U.S.C. §§ 841(b)(1)(A), 846. Mr. Zimmerman maintains that the district court1
erred in applying U.S.S.G. § 2D1.1(b)(1), which provides for a two-level
enhancement to a defendant's base offense level in drug cases "[i]f a dangerous
1
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
weapon (including a firearm) was possessed." The enhancement applies "if the
weapon was present, unless it is clearly improbable that the weapon was connected
with the offense." U.S.S.G. § 2D1.1(b)(1) comment. (n. 3).
There is no question that a gun was present in Mr. Zimmerman's house or that
the drug conspiracy charged in the indictment operated out of that house. But
Mr. Zimmerman maintains that the gun belonged to a co-conspirator, and
Mr. Zimmerman testified that he had locked the gun away in the safe in which the
police found it to keep the co-conspirator from having access to it. He argues
therefore that his actions with respect to the gun were not in furtherance of the
conspiracy but "antithetical to the offense." See United States v. Lagasse, 87 F.3d 18,
23 (1st Cir. 1996).
The district court held that the enhancement was applicable even if
Mr. Zimmerman was telling the truth, and we agree. Mr. Zimmerman admitted that
his co-conspirator possessed the gun in the same room in Mr. Zimmerman's house in
which drugs were found, and so we can hardly say that it was not "clearly
improbable" that the gun was connected to the offense. We have often remarked that
guns and drug transactions are frequently connected. See, e.g., United States v.
Linson, 276 F.3d 1017, 1019 (8th Cir. 2002). Furthermore, even if the enhancement
was not appropriate unless Mr. Zimmerman should have foreseen that his co-
conspirator would possess a gun, the district court acted properly here, because, as
the court remarked at sentencing, the use of a gun by a party to a drug conspiracy is
reasonably foreseeable. Cf. United States v. Jones, 195 F.3d 379, 383-84 (8th Cir.
1999).
Finding no error, we affirm.
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