United States v. Rayon Burns Simmons

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No. 95-3469
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Rayon Burns Simmons, also known * Eastern District of Missouri.
as Rayon Alton, also known as *
Rayon Burns, also known as * [UNPUBLISHED]
Rayon Parker, *
*
Appellant. *
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Submitted: June 6, 1996
Filed: June 12, 1996
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Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Rayon Burns Simmons pleaded guilty to conspiracy to distribute and
possess with intent to distribute cocaine, in violation of 21 U.S.C. §§
841(a)(1) and 846, and possession of cocaine with intent to distribute, in
violation of section 841(a)(1). At his sentencing hearing, the government
presented evidence that Simmons was using his residence to further the
conspiracy; that Simmons distributed cocaine on December 1, 1994; and that
on December 23, 1994, officers recovered a loaded 9mm Glock revolver while
searching Simmons's residence. Based on this evidence, the district court1
assessed a firearm-possession enhancement under
1
The Honorable Stephen N. Limbaugh, United States District
Judge for the Eastern District of Missouri.
U.S.S.G. § 2D1.1(b)(1), and imposed concurrent sentences of 144 months
imprisonment followed by five years supervised release. Simmons appeals,
challenging the enhancement. We affirm.
For the section 2D1.1(b)(1) enhancement to apply, "the government has
to prove by a preponderance of the evidence that it is not clearly
improbable that the weapon had a nexus with the criminal activity." United
States v. Richmond, 37 F.3d 418, 419 (8th Cir. 1994), cert. denied, 115 S.
Ct. 1163 (1995); U.S.S.G. § 2D1.1, comment. (n.3). "The government can
prove that the weapon was connected with the offense by showing that ``a
temporal and spacial relation existed between the weapon, the drug
trafficking activity, and the defendant.'" United States v. Payne, 81 F.3d
759, 763 (8th Cir. 1996) (quoting United States v. Bost, 968 F.2d 729, 732
(8th Cir. 1992)).
Here, the government presented evidence that Simmons arranged (if not
consummated) a drug deal at his residence during the course of the
conspiracy, and that the gun was found at the residence a few weeks later.
We conclude that the district court did not clearly err in accepting this
evidence as true, and we are of the view that it established the required
temporal and spacial relationship. See Payne, 81 F.3d at 763 (in context
of conspiracy, government can prove nexus by showing gun was found "where
part of the conspiracy took place"); cf. United States v. Britton, 68 F.3d
262, 265 (8th Cir. 1995) (affirming § 2D1.1(b)(1) enhancement where firearm
was found eight months after drug sale), cert. denied, 116 S. Ct. 1322
(1996). We see no abuse of discretion in the district court's admission
of hearsay testimony at sentencing. See United States v. Cassidy, 6 F.3d
554, 557 (8th Cir. 1993). But even without that testimony, we think that
the evidence supporting the enhancement was sufficient.
Accordingly, the judgment is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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