United States v. Cedric Mack ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2357
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Cedric D. Mack, * [UNPUBLISHED]
*
Appellant. *
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Submitted: May 9, 2011
Filed: May 13, 2011
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Before MELLOY, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Cedric D. Mack pleaded guilty in District Court1 to a charge of being a felon
in possession of a firearm. The court sentenced him to seventy-two months in prison.
Mack appeals from the judgment, specifically his sentence, challenging the District
Court's decision to increase his offense level by four pursuant to U.S. Sentencing
Guidelines Manual § 2K2.1(b)(6) upon finding that Mack possessed the firearms in
question in connection with another felony offense. We affirm.
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
The relevant facts underlying the court's § 2K2.1(b)(6) finding are undisputed.
Acting on complaints concerning illegal drug transactions in the area of 28th and Park
in Kansas City, Missouri, officers from the Kansas City, Missouri, Police Department
began surveilling the neighborhood. On September 2, 2007, on the sidewalk in front
of Mack's residence at 2738 Park, officers observed activity consistent with the sale
of illegal drugs. At one point, an unidentified person brandished a handgun and ran
toward a vehicle, which drove away before shots were fired. A second individual,
also unidentified, took the gun into 2738 Park through the front door without
knocking. On September 5, a confidential informant (CI) went to Mack's residence.
Mack opened the door and let the CI into the house, where the CI purchased 0.2 grams
of crack cocaine from someone known as Wayne. A week later, a CI purchased 0.3
grams of crack cocaine from individuals standing outside 2738 Park.
On September 27, 2007, officers searched 2738 Park pursuant to a warrant and
recovered, among other things, a clear plastic bag containing twelve individual
packages of crack cocaine totaling 1.7 grams from the top of a built-in hutch in the
dining room, an electronic scale from a drawer in the hutch, a loaded .38 caliber
revolver from under the couch in the living room, and a 16-gauge shotgun from the
basement. Mack, who was present for the search, admitted ownership of the firearms
but denied ownership of the crack cocaine.
We review for clear error the District Court's finding that Mack possessed the
firearms in connection with the intent to distribute illegal drugs. See United States v.
Smith, 535 F.3d 883, 885 (8th Cir. 2008). Mack's counsel objected to the presentence
investigation report's § 2K2.1(b)(6) recommendation and argued that Mack, although
admitting that he had a crack problem, was unaware that crack was being distributed
from his residence. Counsel contended that the dealers must have been Mack's
nephews or sons who were living in the house. The District Court nevertheless found
the four-level increase applicable, obviously finding Mack's explanation—that he was
not involved in distributing drugs—not credible. On this record, we conclude that a
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preponderance of the evidence supports the District Court's § 2K2.1(b)(6) finding, and
thus the finding was not clear error. See United States v. Bridges, 569 F.3d 374,
377–78 (8th Cir. 2009) (noting that a sentencing court applies "a preponderance of the
evidence standard to determine whether a four-level enhancement for possessing a
firearm 'in connection with another felony offense'" is warranted and that the court's
credibility findings will rarely be clear error). Accordingly, we affirm the sentence
imposed by the District Court.
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