United States v. Dennis E. Smith , 261 F. App'x 921 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3955
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Dennis E. Smith, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 31, 2008
Filed: February 4, 2008
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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Dennis Smith (Smith) appeals the 37-month prison sentence the district court1
imposed after a jury found him guilty of possessing marijuana with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1), (b)(1), and not guilty of possessing a firearm (a
12-gauge shotgun) in furtherance of the drug-trafficking crime. Smith argues that, in
calculating the advisory Guidelines imprisonment range of 37-46 months, the district
court erred in denying a 2-level reduction for accepting responsibility and in applying
a 2-level enhancement for possessing a dangerous weapon.
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
We conclude the district court did not clearly err in denying a reduction for
acceptance of responsibility, because Smith did not admit to the drug charge until trial,
and he never entered a guilty plea. See U.S.S.G. § 3E1.1 cmt. n.1(h) (saying, when
determining whether to apply a reduction, the timeliness of defendant’s conduct in
manifesting an acceptance of responsibility is an appropriate consideration), cmt. n.2
(explaining, if the defendant does not plead guilty and is convicted at trial, a reduction
is appropriate only in rare situations, such as when defendant goes to trial to preserve
issues not related to factual guilt; in such instance, reduction will be based primarily
on pretrial statements and conduct); United States v. Tjaden, 473 F.3d 877, 879 (8th
Cir. 2007) (standard of review).
We further conclude Smith’s arguments related to the weapon enhancement are
without merit. First, application of the enhancement was not unconstitutional. See
United States v. Sandoval-Rodriguez, 452 F.3d 984, 990-91 (8th Cir.) (imposing
weapon enhancement does not violate Sixth Amendment if Guidelines are treated as
advisory), cert. denied, 127 S. Ct. 600 (2006); United States v. High Elk, 442 F.3d
622, 626 (8th Cir. 2006) (stating, even after United States v. Booker, 543 U.S. 220(2005), for purposes of calculating an advisory Guidelines range, “the district court
may find by a preponderance of the evidence facts regarding conduct for which the
defendant was acquitted”).
Second, the “clearly improbable” language referenced in U.S.S.G.
§ 2D1.1(b)(1) cmt. n.3 (“enhancement for weapon possession . . . . should be applied
if the weapon was present, unless it is clearly improbable that the weapon was
connected with the [drug-trafficking] offense”), did not create a new burden of proof
or shift the burden to Smith. See United States v. Payne, 81 F.3d 759, 764 (8th Cir.
1996) (“The ‘unless clearly improbable’ language does not shift the burden of proof
to the defendant; the government must prove by a preponderance of the evidence that
the weapon is connected to the offense.”).
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Third, the district court did not err in finding it was not clearly improbable that
the 12-gauge shotgun was connected with the drug-trafficking offense, because the
shotgun was found along with marijuana in a shower stall, and more marijuana was
located in a nearby storage area. See United States v. Lopez, 416 F.3d 713, 715 (8th
Cir. 2005) (standard of review); United States v. Behler, 187 F.3d 772, 777-78 (8th
Cir. 1999) (holding testimony of defense witnesses, who claimed defendant used a
gun only for hunting purposes, was irrelevant to whether defendant carried a firearm
in connection with drug offenses because they admitted they were not involved in his
drug-dealing activities); Payne, 81 F.3d at 764 (concluding the evidence was sufficient
to satisfy the preponderance burden of proof where the government agents testified
the rifle was found in the apartment used by conspirators to store cocaine and drug
proceeds); United States v. Luster, 896 F.2d 1122, 1128-29 (8th Cir. 1990)
(concluding the inoperability of a firearm does not prevent the court from applying a
§ 2D1.1(b)(1) enhancement as long as the firearm did not clearly appear inoperable).
We affirm.
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