United States v. Gerald Dacre , 187 F. App'x 674 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3816
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Gerald Dacre, * [UNPUBLISHED]
*
Appellant. *
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Submitted: May 16, 2006
Filed: August 1, 2006
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Before WOLLMAN, BRIGHT, and RILEY, Circuit Judges.
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PER CURIAM.
Gerald Dacre appeals the district court’s judgment1 of October 13, 2005
sentencing him to 84 months’ imprisonment for possession with the intent to distribute
methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1)(B), and a concurrent term of 48
months’ imprisonment for use of a communications facility (telephone) in committing
1
The Honorable Harold D. Vietor, Senior United States District Judge for the
Southern District of Iowa.
a drug felony offense, 21 U.S.C. § 843(b).2 Dacre challenges the district court’s
conclusion that he possessed a firearm in connection with these drug offenses, which
resulted in a two-level sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) and
rendered him ineligible for application of the “safety valve,” U.S.S.G. § 5C1.2.3 We
affirm.
Dacre contends the district court should have allowed him to use results from
a defense-generated polygraph examination to bolster his claim that he did not possess
a firearm in connection with his drug offenses. At sentencing, the district court “may
consider relevant information . . . provided that the information has sufficient indicia
of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a). We review the
district court’s decision to exclude polygraph evidence at sentencing for abuse of
discretion. See United States v. Knife, 9 F.3d 705, 706 (8th Cir. 1993) (citing
U.S.S.G. § 6A1.3(a)) (reviewing for abuse of discretion whether the district court
erred in admitting hearsay testimony at sentencing); United States v. Duverge Perez,
295 F.3d 249, 254 (2d Cir. 2002) (reviewing for abuse of discretion whether the
district court erred in excluding polygraph evidence at sentencing).
The district court decided that, absent a stipulation of the parties, it would
evaluate the credibility of the witnesses without weighing expert opinion on polygraph
results. The court reached this decision based on the uncertainties surrounding the
reliability of polygraph examinations, which the Supreme Court and this court have
recognized. See United States v. Scheffer, 523 U.S. 303, 309-12, 315-17 (1998);
Ortega v. United States, 270 F.3d 540, 547-48 (8th Cir. 2001).
2
On February 22, 2006, the court granted the government’s motion to dismiss
its cross-appeal at No. 05-4088.
3
In sentencing Dacre, the district court departed downward from an advisory
guideline range of 135 to 168 months’ imprisonment.
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The district court did not abuse its discretion in resolving this issue in favor of
exclusion of the polygraph evidence.
As an alternative argument, Dacre contends that even without the polygraph
results, the evidence does not support an enhanced sentence under U.S.S.G.
§ 2D1.1(b)(1) for possession of a firearm in connection with his drug offenses.
Section 2D1.1(b)(1) provides, “If a dangerous weapon (including a firearm) was
possessed, increase [base offense level] by 2 levels.” Application note 3 of the
Commentary to Section 2D1.1 states, “The enhancement for weapon possession
reflects the increased danger of violence when drug traffickers possess weapons. The
adjustment should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.”
“At sentencing, the burden is on the government to show by a preponderance
of the evidence that a dangerous weapon was present and that it was not clearly
improbable that the weapon had a nexus with the criminal activity.” United States v.
Betz, 82 F.3d 205, 210 (8th Cir. 1996). “We will not reverse the district court’s
factual finding that [Dacre] possessed a firearm for purposes of § 2D1.1 unless the
district court’s finding is clearly erroneous.” United States v. Hayes, 15 F.3d 125, 127
(8th Cir. 1994).
“A nexus exists where there is a temporal and spatial relation between the
weapon, the drug trafficking activity, and the defendant.” United States v. Thompson,
210 F.3d 855, 862 (8th Cir. 2000) (internal quotations and citation omitted). “The
government need not prove the defendant had actual possession of the weapon;
constructive possession will do.” United States v. Torres, 409 F.3d 1000, 1003 (8th
Cir. 2005). Further, “the dangerous-weapon enhancement applies if the weapon was
used during acts that ‘were part of the same course of conduct or common scheme or
plan as the offense of conviction.’” United States v. Savage, 414 F.3d 964, 966 (8th
Cir. 2005) (quoting U.S.S.G. § 1B1.3(a)(2)).
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According to Dacre, the guns he possessed had no connection with his drug
trafficking activities. The evidence relied on by the sentencing judge is to the
contrary.
First, Dacre admits he had a gun on his kitchen table on an occasion where he
paid drug proceeds to the government’s informant, and the informant testified that he
saw the gun. Dacre contends the gun was on the table as he had just finished cleaning
it. He asserts this weapon was not to aid him in his drug trafficking activity. The
district court did not err in rejecting this claim. See United States v. Pizano, 421 F.3d
707, 732 (8th Cir. 2005) (rejecting defendant’s claim that, during a drug transaction,
he could “show off” a gun to his drug supplier and allow the supplier to hold the gun
without resulting in a gun possession enhancement under Section 2D1.1(b)(1)).
Second, the government’s informant testified at the sentencing hearing that
Dacre sometimes wore a gun in a holster during drug transactions at the informant’s
apartment. The informant further testified that Dacre would open his coat to show the
informant the gun. This testimony is consistent with Dacre’s recorded remarks in
which he refers to using a gun in drug transactions. Referring to his fanny-pack,
Dacre told the informant, “This is what I also carry my gun in.” and joked, “No,
Officer, I don’t have anything. Oh, don’t look there. Bang.” Sent. Tr. at 75.
Third, Dacre kept several loaded guns in close proximity to drugs and drug
paraphernalia. From Dacre’s residence, the police recovered, among other things, a
loaded .357-caliber revolver under a couch cushion in the living room, a loaded 12-
gauge shotgun leaning against the living room wall, a loaded .45-caliber handgun on
a chest in the living room, four gun holsters, small amounts of methamphetamine (less
than one gram) in the laundry room, $3,900 in cash in kitchen drawers, and a digital
scale. See, e.g., United States v. Cave, 293 F.3d 1077, 1079 (8th Cir. 2002)
(“[E]vidence that the weapon was found in the same location as drugs or drug
paraphernalia usually suffices.”); Brown v. United States, 169 F.3d 531, 533 (8th Cir.
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1999) (“Based on the number, type, and the state of readiness of the weapons found
. . . we can not agree . . . that the district court ‘clearly erred’ and that it was ‘clearly
improbable’ that the firearms were related to the drug trafficking activities . . . .”);
United States v. Macklin, 104 F.3d 1046, 1048 (8th Cir. 1997) (“Given the proximity
of the firearms to the drugs in this case, the ease with which the defendants could
access the firearms, the ongoing drug trafficking occurring out of the residence at
5243 Cates, and the likely need for the defendants to protect both the drugs and the
cash found in the residence, we hold that the district court did not clearly err in finding
that it was not clearly improbable that the firearms were connected with the offense
of drug trafficking.”).
The precedents support the district judge’s determination that defendant
possessed a firearm in connection with the drug offense.
Accordingly, we affirm.
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