UNITED STATES COURT OF APPEALS
Filed 8/20/96
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) No. 96-1040
) (D.C. No. 95-CR-10-1-N)
MIKE KING, also known as Lamont ) (Dist. of Colo.)
Pennomon, also known as Mike Woods,)
also known as Eric Larry Goins, )
also known as Lamont Pennon, )
)
Defendant-Appellant.
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ORDER AND JUDGMENT*
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Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
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After examining the briefs and the appellate record, this
panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R.
App. P. 34(a); Tenth Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Mike King (King) appeals from his conviction and sentence
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of Tenth Cir. R. 36.3.
following his plea of guilty to one count of distribution and
possession of crack cocaine with intent to distribute, in violation
of 21 U.S.C. § 841(a) and § 841(b)(1)(A)(iii). The relevant facts
are not in dispute.
On or about January 4, 1995, King, while in California,
packaged approximately 506 grams of crack cocaine in an express
mail envelope and instructed one Jessica Navarro (Navarro) to
address the package and mail it to her apartment in Denver,
Colorado. Thereafter, King flew to Denver to receive the package
at Navarro’s apartment. The package was intercepted in Denver and
opened pursuant to a federal search warrant.
Officers effected a controlled delivery of the cocaine to
Navarro’s apartment on January 6, 1995. King received the package
at Navarro’s apartment from an undercover police officer posing as
a postal delivery person. King intended to distribute the cocaine
base inside the package to persons in the Denver area.
King was arrested outside of Navarro’s apartment pursuant to
an arrest warrant on January 9, 1995. Upon entering the apartment,
officer found the package containing the cocaine on a coffee table
in the first floor living room. During a subsequent search,
pursuant to a warrant, officers found a pistol in an upstairs
bedroom between the mattresses of a bed.
King, Navarro, and one Tanya Mason, were charged with
distribution and possession with intent to distribute cocaine and
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with conspiracy to do so. Thereafter, King pled guilty to one
count of distribution and possession with intent to distribute
cocaine base.
The probation officer who drafted King’s presentence
investigation report recommended an upward adjustment to King’s
offense level pursuant to U.S.S.G. § 2D1.1(b)(1), which applies to
offenses under 21 U.S.C. § 841(a)(1). It requires a two level
upward adjustment “[i]f a dangerous weapon (including a firearm)
was possessed.” King objected to the upward adjustment:
The Defendant [King] contends that there should be no
adjustment for possession of a weapon in this case. The
Defendant contends that although the weapon was in the
apartment, at the time of the seizure of the controlled
substances, the weapon belonged to Ms. Navarro and was
for her use and protection even though it was originally
paid for by Mr. King. The Defendant further contends .
. . that there is no evidence that Mr. King knew that the
gun was still in the apartment on January 6, 1995, rather
than in the possession of Ms. Navarro who was in
California.
(R., Vol. 1, Tab 5, Plea Agreement and Statement of Facts Relevant
to Sentencing at 5).
The district court rejected King’s objections and sentenced
him to 292 months imprisonment and five years of supervised
release. King’s sentence reflected a two level adjustment pursuant
to § 2D1.1(b)(1) for possession of a firearm.
On appeal, King contends that the district court erred when it
applied the two level upward adjustment pursuant to § 2D1.1(b)(1)
for possession of a firearm. We review the district court’s legal
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interpretation of the sentencing guidelines de novo; we review the
district court’s factual findings for clear error. United States
v. Bruce, 78 F.3d 1506, 1509 (10th Cir. 1996), petition for cert.
filed, (U.S. June 20, 1996) (No. 95-9389); United States v.
Johnson, 42 F.3d 1312, 1320 (10th Cir. 1994), cert. enied, ___ U.S.
___ (1995).
The two level adjustment under § 2D1.1(b)(1) for the
possession of a weapon reflects the increased danger of violence
when drug traffickers possess weapons. United States v. Contreras,
59 F.3d 1038, 1040 (10th Cir. 1995). The enhancement “should be
applied if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense.” § 2D1.1(b)(1)
comment. (n.3). The government bears the initial burden “of
proving by a preponderance of the evidence that the gun was
proximate to the drug offense.” United States v. Lang, 81 F.3d
955, 964 (10th Cir. 1996); United States v. Earls, 42 F.3d 1321,
1326 (10th Cir. 1994), cert. denied, ___ U.S. ___, (1995). Once
the government meets its burden, the onus shifts to the defendant
to show that it is clearly improbable that the weapon was related
to the offense. United States v. Robertson, 45 F.3d 1423, 1449
(10th Cir.), cert denied, ___ U.S.___ (1995).
The district court properly applied these standards in
sentencing King:
[T]he court finds that the defendant had purchased this
Briko Arms pistol Model 59 for Jessica Navarro, and the
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officers who made the arrest of the defendant were told
that it was for Navarro’s protection.
The weapon enhancement [§ 2D1.1(b)(1)] applies if the
weapon is present at the location, unless it is clearly
improbable that the weapon was connected with the
offense.
Given the fact that the defendant purchased this weapon
for Ms. Navarro, as I find, given the fact that he and
Ms. Navarro and others were selling drugs from this
location, as I find, and given the fact that the
defendant came back to the location to sell drugs and was
selling drugs from that location, I find the . . .
inference that’s justified [is] that the weapon was very
likely present at the location where it was intended to
be present to afford protection in these drug activities.
It is true that the defendant had just come in from
California and it is also true, as I understand it, that
Ms. Navarro was gone, that she was in California. I
don’t think that detracts from the inference that I’m
drawing, which is that the weapon was in the residence
for Ms. Navarro to use, and it was available for the
defendant’s use for protection, including protection in
the drug transactions that were taking place there.
I am unable to find on this record that it is clearly
improbable that the weapon was not connected with the
offense.
(R., Vol. 3 at 34-5).
We hold that the district court did not err in
finding/concluding that § 2D1.1(b)(1) applied in sentencing King.
See, e.g., Contreras, 59 F.3d at 1039-40 (§ 2D1.1(b)(1) enhancement
proper where agents found a loaded rifle under a couch in the
living room and 238 pounds of marijuana in an attached garage
approximately 25 feet from where the rifle was found); Earls, 42
F.3d at 1326 (§ 2D1.1(b)(1) enhancement proper where officers found
a partially loaded gun in defendant’s bedroom at the time of his
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arrest along with amounts of marijuana consistent with
distribution); United States v. Roederer, 11 F.3d 973, 981-83 (10th
Cir. 1993)(§ 2D1.1(b)(1) enhancement proper where officers, who had
arrested defendant for distributing cocaine in a parking lot,
subsequently, pursuant to a search warrant, searched defendant’s
apartment and found a loaded revolver); United States v. Nguyen, 1
F.3d 972, 973-74 (10th Cir. 1993)(§ 2D1.1(b)(1) enhancement proper
where .357 magnum revolver was found in a wrapped towel inside a
guitar case in a closet in the apartment where defendant lived and
where several drug transactions took place directly outside of the
apartment and one transaction was conducted inside the apartment).
AFFIRMED.
Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge
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