United States v. David M. Cave

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-3713
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
David Mark Cave, *
*
Appellant. *
___________
Submitted: June 10, 2002
Filed: June 17, 2002
___________
Before RILEY, BEAM, and MELLOY, Circuit Judges.
___________
RILEY, Circuit Judge.
David Mark Cave (Cave) was indicted for possession with intent to distribute
cocaine base and of being a felon in possession of a firearm. Cave pled guilty to
possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1).
Cave appeals his sentence relating to the district court's1 enhancement for the
possession of a weapon under United States Sentencing Guidelines (U.S.S.G.)
§ 2D1.1(b)(1). We affirm.
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
I. BACKGROUND
Cave and the government stipulated to the following facts in the plea
agreement:
At approximately 5:45 p.m. on May 21, 2000, officers . . . executed a
narcotics search warrant at a trailer. . . . During their search, officers
recovered numerous drug-related items, including scales and a plastic
bag containing numerous plastic bags containing cocaine base ("crack")
weighing 19.05 grams. Officers also recovered [and] seized a total of
nineteen (19) firearms, including eleven (11) long guns and eight (8)
pistols or revolvers. . . . The Defendant was advised of his Miranda
rights, and stated he understood his rights. When asked about the
cocaine base and guns found in the trailer, the Defendant admitted they
all belonged to him. . . . The Defendant stated that he . . . sold "crack"
cocaine as a source of income. The Defendant again took responsibility
for all of the guns and drugs found in the trailer, and showed officers the
exact locations where the cocaine base and the guns had been located
inside the trailer. When stopped, the Defendant had $624 in United
States currency on his person.
At sentencing the following additional facts were elicited. During the
execution of a search warrant at Cave's trailer, an officer found crack cocaine in the
second drawer of a dresser in the west bedroom. Three or four feet away the officers
found two long guns in the closet area. The long guns were not loaded, and it is not
known whether they were operable. Additionally, the nineteen weapons, a
combination of handguns and long guns, were found in a closet near the front of the
trailer. In the east bedroom, the officers found some marijuana and a .25 caliber
Beretta handgun. An officer testified that Cave's sister, Carolyn, stated the Beretta
belonged to Cave. After the search had begun, Cave was observed driving past the
residence and an officer brought Cave back to the trailer residence. There were four
people living at the trailer and sharing expenses. Carolyn lived in the east bedroom.
Cave's brother, Robert, occupied the west bedroom.
2
Cave objected to the recommendation contained in the Presentence
Investigation Report that Cave should receive a two-level increase under U.S.S.G.
§ 2D1.1(b)(1) for possession of a dangerous weapon during the commission of a drug
crime. After a hearing, the district court overruled the objection and applied the two-
level increase. The district court sentenced Cave to 84 months imprisonment and four
years supervised release.
II. DISCUSSION
Cave argues the two-level increase was improper for two reasons. First, Cave
argues the facts clearly show it is improbable the guns were connected with the
offense. Cave contends there is no evidence that he possessed both a weapon and the
cocaine base simultaneously. Second, Cave argues a gun possession charge was
dismissed as part of the plea agreement, therefore such conduct should not be used
to enhance his offense level.
We review the district court's factual determinations leading to the application
of a sentence enhancement for clear error and its legal conclusions de novo. United
States v. Fladten, 230 F.3d 1083, 1085-86 (8th Cir. 2000). A district court may assess
"a two-level sentence enhancement if it finds, by a preponderance of the evidence,
that the defendant possessed or used a weapon during the commission of an offense."
Id. at 1086; see U.S.S.G. § 2D1.1(b)(1). Application note 3 to § 2D1.1 states, in part:
The adjustment [for weapon possession] should be applied if the weapon
was present, unless it is clearly improbable that the weapon was
connected with the offense. For example, the enhancement would not
be applied if the defendant, arrested at his residence, had an unloaded
hunting rifle in the closet.
We have held "[t]he government need not show that the defendant used or even
touched a weapon to prove a connection between the weapon and the offense."
Fladten, 230 F.3d at 1086. In fact, "[e]vidence that the weapon was found in the same
3
location as drugs or drug paraphernalia usually suffices." Id. In Fladten, the district
court found the defendant transported a .22 caliber weapon to the house along with
drugs and drug paraphernalia. These findings sufficiently supported the necessary
temporal and spacial connections between the drug offenses and the weapon. Id.;
see also United States v. Betz, 82 F.3d 205, 210-11 (8th Cir. 1996); United States v.
Hiveley, 61 F.3d 1358, 1362-63 (8th Cir. 1995).
In this case, after receiving his Miranda rights, Cave admitted to officers, and
later stipulated in a statement of facts, that the cocaine base and the weapons found
in the trailer were his. Additionally, Cave's sister told officers the Beretta found in
her room was given to her by Cave and was his. Cave stipulated that the drugs and
weapons were in close proximity to one another. Cave admitted responsibility for all
of the items. Based upon these facts, we hold the district court did not err in finding
it was not clearly improbable that the guns were connected to the narcotics.
Cave also argues the district court erred in assessing the two-level enhancement
under § 2D1.1(b)(1) because the conduct relied upon for the enhancement was also
the basis of a dismissed count of the indictment. However, the fact that the
government dismissed a count in the indictment for felon in possession of a weapon
does not preclude application of a two-level enhancement under § 2D1.1(b)(1). The
Sentencing Guidelines provide:
However, a plea agreement that includes the dismissal of a charge or a
plea agreement not to pursue a potential charge shall not preclude the
conduct underlying such charge from being considered under the
provisions of § 1B1.3 (Relevant Conduct) in connection with the
count(s) of which the defendant is convicted.
U.S.S.G. § 6B1.2(a).
4
Here, the weapon charge was dismissed as part of a plea agreement. However,
the government did not agree to exclude a § 2D1.1(b)(1) enhancement. For purposes
of sentencing, a court is obligated to consider conduct from dismissed counts of the
indictment and from unindicted conduct. United States v. Griggs, 71 F.3d 276, 281
(8th Cir. 1995) (declaring district court must consider all relevant conduct in
determining sentence "whether uncharged, charged, or charged and dismissed"). See
also United States v. Prendergast, 979 F.2d 1289, 1291 (8th Cir. 1992).
III. CONCLUSION
For these reasons, we affirm, holding the district court did not clearly err when
it gave Cave a two-level sentence enhancement for possessing a weapon during the
commission of his drug offenses.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
5