United States v. McKissick

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 24 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-6320

DARHEE GRAY MCKISSICK,

Defendant-Appellant.

---------------------

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 98-6351
v.

DELMAR ANTON ZEIGLER, a/k/a
Stix Zeigler,

Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Oklahoma
(D.C. No. CR-98-29-L)

Daniel G. Webber, Jr. (Patrick M. Ryan, United States Attorney, with him on the
brief), Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-
Appellee in No. 98-6320 and No. 98-6351.
Teresa Brown, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for
Defendant-Appellant in No. 98-6320.

Joseph L. Wells, Oklahoma City, Oklahoma, for Defendant-Appellant in No. 98-
6351.

Before BRORBY, ANDERSON, and BRISCOE, Circuit Judges.

BRORBY, Circuit Judge.

Mr. Darhee Gray McKissick and Mr. Delmar Anton Zeigler were arrested

following a shooting at a nightclub in Oklahoma City. The Oklahoma County

District Attorney’s office declined to file charges against Mr. McKissick for

shooting with intent to kill but authorized charges against Mr. McKissick and Mr.

Zeigler for trafficking in 20.9 grams of cocaine base. The State of Oklahoma

subsequently dismissed these charges. However, a federal grand jury, sitting in

the Western District of Oklahoma, returned a six-count indictment, charging Mr.

McKissick in three counts and Mr. Zeigler in four counts. Count One charged

Mr. McKissick with being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). Count Two charged Mr. Zeigler with being a felon in

possession of a firearm in violation of U.S.C. 18 § 922(g)(1). Count Three

charged both defendants with possession of sixty-three grams of crack cocaine

with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Count Four

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charged Mr. Zeigler with possession of sixteen grams of crack cocaine with intent

to distribute in violation of 21 U.S.C. § 841(a)(1). Count Five charged Mr.

McKissick with carrying a firearm during and in relation to a drug trafficking

crime in violation of 18 U.S.C. § 924(c). Count Six charged Mr. Zeigler with

carrying a firearm during and in relation to a drug trafficking crime in violation of

18 U.S.C. § 924(c).

Prior to trial, Mr. Zeigler moved to suppress the evidence against him.

After holding a hearing on the motion, the district court denied Mr. Zeigler’s

request and the case proceeded to trial. The government filed an information

pursuant to 21 U.S.C. § 851 notifying Mr. Zeigler it intended to seek enhanced

penalties if Mr. Zeigler was convicted of the drug trafficking charges in Counts

Three and Four. The Defendants were tried jointly. At the close of the

government’s case, the district court granted Mr. Zeigler’s motion for acquittal on

the weapons charges, Counts Two and Six. The court overruled Mr. Zeigler’s

motion for acquittal on the other counts and overruled Mr. McKissick’s motion

for acquittal.

The jury found Mr. Zeigler guilty on both drug trafficking charges.

Pursuant to the statutory enhancements filed by the government, Mr. Zeigler was

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sentenced to life without parole for each Count with the sentences to run

concurrently, plus ten years of supervised release. The jury found Mr. McKissick

guilty on all three counts with which he was charged. Mr. McKissick was

sentenced to 120 months imprisonment on Count One and 240 months

imprisonment on Count Three, those sentences to run concurrently. Mr.

McKissick was also sentenced to five years imprisonment on Count Five, to be

served consecutively to the other sentences. Both defendants filed timely appeals.

These appeals are addressed simultaneously in this opinion. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm.

I. BACKGROUND

In the early morning hours of December 7, 1997, a shooting took place in

the parking lot of Lan’s Night Club in Oklahoma City. The Oklahoma City Police

Department sent out a dispatch reporting a drive-by shooting in the nightclub

parking lot. According to the dispatch, the suspect vehicle was a 1970s model

green Chevrolet Impala and the suspects were reported to be black males. Officer

Dale Thomas, of the University Hospital Police, heard the dispatch and within

minutes saw a car matching the description a couple of miles from the nightclub.

Officer Thomas turned on his lights and stopped the car, but when he approached

the car, it sped away. Officer Thomas followed the car to Presbyterian Hospital.

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The driver, Mr. McKissick, got out of the car and stated he had been shot.

Officer Thomas asked Mr. McKissick to place his hands on the car, and the

officer conducted a quick pat-down search for weapons. Officer Thomas then

asked the front seat passenger, Mr. Zeigler, to step out of the car. Mr. Zeigler

placed his hands on the car and Officer Thomas conducted a quick pat-down

search of Mr. Zeigler for weapons. When Officer Thomas’s partner arrived, Mr.

Zeigler was handcuffed and placed in Officer Thomas’s patrol car. Officer

Thomas then took Mr. McKissick inside the hospital for treatment. Mr.

McKissick later admitted the car was his.

While Mr. McKissick was in the emergency room reception area, Mr.

Tommy Simpkins, who was also at the hospital for treatment of a gunshot wound,

saw Mr. McKissick and immediately identified Mr. McKissick as the person who

had shot him. At trial, Mr. Simpkins testified he had gone to Lan’s Night Club

that evening, but left after a fight broke out. Mr. Simpkins further testified he

was in a van with some other men in the nightclub parking lot when they

encountered Mr. McKissick and Mr. Zeigler in a green Chevrolet. Mr. McKissick

and Mr. Simpkins traded insults related to their respective street gangs, and then

Mr. McKissick leaned out the driver’s side window of his car and fired a gun,

striking Mr. Simpkins in the chest.

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 Oklahoma City Police Department Officer William Patten responded to a

call from Presbyterian Hospital, and quickly learned a vehicle believed to be the

one involved in the shooting was at the hospital. He was told one of the car’s

occupants had been shot and the other occupant, Mr. Zeigler, was being held by

the hospital police. Officer Patten decided to transfer Mr. Zeigler to his police

car, intending to arrest Mr. Zeigler for the drive-by shooting. Although he had

been told Mr. Zeigler had already been “patted down” for weapons, Officer Patten

decided to conduct his own pat-down search of Mr. Zeigler before placing him in

his patrol car. Officer Patten discovered a bulge in Mr. Zeigler’s crotch area

inconsistent with his genitals. Officer Patten suspected the bulge was narcotics

and pulled the lump out of Mr. Zeigler’s pants. The bulge turned out to be the

sixteen grams of crack cocaine that formed the basis for Count Four. Officer

Patten then placed Mr. Zeigler in his patrol car. Officer Patten and his partner,

Officer Harper, then entered the hospital to find the driver of the car, Mr.

McKissick. After finding Mr. McKissick sitting in a chair in the hospital

emergency room with a bullet wound in his right arm, Officer Patten told Officer

Harper to handcuff Mr. McKissick and arrest him for discharging a firearm from a

motor vehicle. Officer Patten then went back outside and looked in Mr.

McKissick’s car. While Officer Patten was standing outside the car, he saw a

package on the back seat floorboard containing what he believed to be additional

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cocaine. However, Officer Patten did not mention the package in his report.

Officer Patten then transported Mr. Zeigler to the county jail. On the way,

Mr. Zeigler admitted he had been smoking cigarettes laced with PCP. As Mr.

Zeigler was being booked, he asked Officer Patten what charges he was facing.

Officer Patten related the charges, and Mr. Zeigler responded: “The crack is

mine, but I didn’t shoot anybody.”

Officer Darrin Guthrie, a technical investigator for the Oklahoma City

Police Department, had been called to the hospital earlier in the evening on an

unrelated matter. Officer Guthrie heard Mr. Simpkins accuse Mr. McKissick of

shooting him in the chest. He witnessed the ensuing altercation between Mr.

Simpkins and Mr. McKissick and assisted in separating them. Officer Guthrie

restrained Mr. Simpkins and made sure he received medical attention. Officer

Guthrie then returned to his vehicle, retrieved his camera, and took pictures of the

victims and Mr. McKissick’s car. The car doors were open and the engine was

running. From the outside of the car, Officer Guthrie photographed spent shell

casings and what he believed to be narcotics in a transparent, brown-colored

baggie on the back seat floorboard. The car was then sealed and impounded.

Officer Guthrie did not mention seeing the bag of suspected narcotics in his

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report.

Later that day, Officer Patten told Detective Riggs he had seen a large

package in the back of the car he believed to be additional cocaine. Detective

Riggs applied for a search warrant to search Mr. McKissick’s car. In his

affidavit, Detective Riggs stated he went to the Oklahoma City garage and saw

the plastic baggie observed by Officer Patten and several spent shell casings in

Mr. McKissick’s car. In his affidavit, Detective Riggs did not mention the other

officers’ failure to include their observations of the baggie in their reports.

While executing the warrant, Officer Guthrie found two spent .380 caliber

casings, one spent 9 mm casing, an empty 9 mm magazine in the glove box, and a

package on the back floorboard. The package was discovered to contain sixty-

three grams of crack cocaine, with which both Defendants were charged with

possessing with intent to distribute in Count Three. Officers also searched the

entire nightclub parking lot. One spent .380 caliber shell casing and two spent

9 mm casings were recovered in the parking lot about four feet from each other.

Gregory Karim, a ballistics expert from the Oklahoma City Police

Department testified the 9 mm casings from the parking lot and the 9 mm casing

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found in Mr. McKissick’s car had been fired from the same weapon. The .380

casings found in the car and the one found in the parking lot had similar

markings, and were consistent with being fired from the same weapon, but Mr.

Karim could not positively identify them as being fired from the same weapon.

Sergeant Gordon Robertson, another ballistics expert, concluded the bullet

recovered from Mr. Simpkins’ chest was too heavy to have been fired from a .380

pistol and was most likely fired from a 9 mm automatic, but conceded it could

also have been fired from a .38 special revolver. Mr. Simpkins testified a security

guard near him in the parking lot at the time of the shooting had a .38 revolver,

but he did not see or hear the security guard fire this weapon. When Mr.

Simpkins was shot, the security guard fell to the ground as well, landing about

five feet from Mr. Simpkins.

The sweater Mr. McKissick wore on the night of the shooting was tested

for gunpowder residue in order to determine whether his wound could have been

the result of a point blank shooting by Mr. Zeigler while he was the sole

passenger in the car. The tests were negative. Mr. McKissick’s sweater was not

tested for a type of residue that would have been present had Mr. McKissick fired

a gun. Mr. Karim testified a shooter’s clothes might contain “primer residue” but

he did not have the equipment necessary to detect that type of residue.

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II. ANALYSIS OF MR. McKISSICK’S ARGUMENTS ON APPEAL

Mr. McKissick asserts two errors by the trial court. First, Mr. McKissick

contends the evidence was insufficient to support his convictions and the district

court’s denial of his motion for judgment of acquittal was error. Second,

McKissick contends the district court improperly denied his pretrial motion based

on outrageous governmental conduct and, due to the government’s misconduct, it

had no jurisdiction to hear the case.

A. Sufficiency of the Evidence to Support Mr. McKissick’s Conviction
and the District Court’s Denial of his Motion for Acquittal

Sufficiency of the evidence to support a jury’s verdict is a legal issue which

is reviewed de novo. United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir.

1999). On appeal we “ask only whether taking the evidence – both direct and

circumstantial, together with the reasonable inferences to be drawn therefrom – in

the light most favorable to the government, a reasonable jury could find the

defendant guilty beyond a reasonable doubt.” Id. (quotation marks and citation

omitted). The evidence supporting the conviction must be substantial and do

more than raise a suspicion of guilt. See United States v. Taylor, 113 F.3d 1136,

1144 (10th Cir. 1997). In conducting this review we “may neither weigh

conflicting evidence nor consider the credibility of witnesses.” United States v.

Pappert, 112 F.3d 1073, 1077 (10th Cir. 1997) (quotation marks and citations

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omitted). It is for the jury, as the fact finder, to resolve conflicting testimony,

weigh the evidence, and draw inferences from the facts presented. See United

States v. Nieto, 60 F.3d 1464, 1469 (10th Cir.1995), cert. denied, 516 U.S. 1081

(1996). When reviewing the denial of a motion for judgment of acquittal based

on insufficient evidence, this court conducts the same analysis, reviewing the

judgment of the district court de novo. See United States v. Ailsworth, 138 F.3d

843, 846 (10th Cir.), cert. denied, 119 S. Ct. 221 (1998); Pappert, 112 F.3d at

1077; United States v. Hooks, 780 F.2d 1526, 1531 n.1 (10th Cir.), cert. denied,

475 U.S. 1128 (1986).

1. Count One: Felon in Possession of a Firearm in Violation of 18
U.S.C. § 922(g)(1)

In order to sustain a conviction under 18 U.S.C. § 922(g)(1), the

government must prove: “1) the defendant was convicted of a felony; 2) the

defendant thereafter knowingly possessed a firearm; and 3) the possession was in

or affecting interstate commerce.” United States v. Capps, 77 F.3d 350, 352 (10th

Cir.), cert. denied, 518 U.S. 1027 (1996). Mr. McKissick contends the

government failed to prove the second element of the crime: knowing possession

of a firearm. 1

1
Mr. McKissick stipulated to the first element at trial and does not contest
the third element.

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 Mr. McKissick acknowledges Mr. Simpkins identified Mr. McKissick as

the person who shot him. However, Mr. McKissick argues this evidence was

insufficient to prove possession of the firearm because Mr. Simpkins’ credibility

was suspect to the point of making his testimony unreliable. He points out Mr.

Simpkins was so intoxicated by PCP, marijuana, and alcohol the night of the

shooting that the doctors in the emergency room refused to give Mr. Simpkins any

pain reliever while removing the bullet from his chest for fear they would over-

medicate him. Mr. McKissick also points out Mr. Simpkins was in a gang fight

and was hit over the head prior to being shot. Mr. McKissick notes Mr. Simpkins

testified he heard gunshots in front of him and behind him and saw a security

guard with a .38 revolver. Mr. McKissick also contends the physical evidence

contradicts Mr. Simpkins’ testimony.

We conclude Mr. Simpkins’ testimony was more than sufficient to support

the jury’s findings. Mr. Simpkins testified he heard Mr. McKissick yell “F,

Hoover” and Mr. Simpkins replied, “F, Prince Hall,” referring to their respective

street gangs. Mr. Simpkins testified he saw Mr. McKissick with both hands on a

gun, he saw Mr. McKissick point the gun at him, and saw Mr. McKissick fire the

gun, hitting Mr. Simpkins in the chest. At the hospital, Mr. Simpkins

immediately identified Mr. McKissick as the person who shot him. Although Mr.

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Simpkins was under the influence of several substances at the time of the

shooting, and taking medication for pain resulting from a later shooting at the

time of the trial, the court determined his credibility was not so suspect as to

render his testimony unreliable. The jury also evidently came to this conclusion.

On appeal, we do not weigh evidence or make credibility determinations. See

Pappert, 112 F.3d at 1077. However, in reviewing the transcript of the trial, we

note Mr. Simpkins was an extremely candid witness who clearly testified about

the events on the night of the shooting. We conclude Mr. McKissick’s assertions

of unreliability are without merit.

Furthermore, the physical evidence, or lack thereof, did not contradict Mr.

Simpkins’ testimony. Mr. McKissick’s sweater was tested for gunpowder residue

to determine whether he might have been shot at close range by Mr. Zeigler, the

co-defendant. No such evidence was found. Mr. McKissick contends this

contradicts Mr. Simpkins’ testimony that Mr. McKissick shot Mr. Simpkins, and

concludes the evidence was insufficient to support a finding that the shooting

could have occurred as Mr. Simpkins claimed. However, Mr. McKissick’s

sweater was never examined to determine whether Mr. McKissick fired a gun. It

was not tested for primer residue, which might be found on the clothes of a

shooter, because the equipment necessary to detect such residue was not

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available. The lack of physical evidence on the sweater does not negate Mr.

Simpkins’ testimony that Mr. McKissick shot Mr. Simpkins.

Moreover, the ballistics evidence supported Mr. Simpkins’ testimony.

Gregory Karim, a ballistics expert from the Oklahoma City Police Department

testified the 9 mm casings found in the parking lot and the 9 mm casing from Mr.

McKissick’s car had been fired from the same weapon. Sergeant Gordon

Robertson, a senior firearms expert with the Oklahoma City Police Department,

testified the bullet retrieved from Mr. Simpkins was most likely shot from a

9 mm.

In viewing the evidence in the light most favorable to the government, we

conclude it was substantial and sufficient to overcome a motion for acquittal and

to allow a reasonable jury to determine beyond a reasonable doubt Mr. McKissick

was a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

2. Count 3: Possession of Cocaine Base with Intent to Distribute in
Violation of 21 U.S.C. § 841(a)(1)

Mr. McKissick also contends the evidence was insufficient to support his

conviction of possession with intent to distribute the sixity-three grams of cocaine

base found on the back floorboard of his car.

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 To establish a violation of 21 U.S.C. § 841(a)(1), the Government must

prove the defendant: (1) possessed the controlled substance; (2) knew he

possessed the controlled substance; and (3) intended to distribute or dispense the

controlled substance. United States v. Dozal, 173 F.3d 787, 797 (10th Cir. 1999).

The possession of the controlled substance may be actual or constructive.

“Constructive possession may be established by circumstantial evidence and may

be joint among several individuals.” United States v. Carter, 130 F.3d 1432,

1441 (10th Cir. 1997) (quotation marks and citation omitted), cert. denied, 523

U.S. 1144 (1998). “Possession is constructive, rather than actual, when the

defendant knowingly has ownership, dominion or control over the narcotics and

the premises where the narcotics are found.” Dozal, 173 F.3d at 797 (quotation

marks and citations omitted). See also United States v. Ruiz-Castro, 92 F.3d

1519, 1531 (10th Cir. 1996) (defining constructive possession of a narcotic as “an

appreciable ability to guide the destiny of the drug”) (quotation marks and citation

omitted). In cases involving joint occupancy of a place where contraband is

found, mere control or dominion over the place in which the contraband is found

is not enough to establish constructive possession. United States v. Mills, 29 F.3d

545, 549 (10th Cir. 1994). In such cases, the government is required to present

“direct or circumstantial evidence to show some connection or nexus individually

linking the defendant to the contraband.” United States v. Valadez-Gallegos, 162

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F.3d 1256, 1262 (10th Cir. 1998). The government must present “some evidence

supporting at least a plausible inference that the defendant had knowledge of and

access to the ... contraband.” Id. (quotation marks and citations omitted).

Because Mr. Zeigler was in the car with Mr. McKissick and the cocaine

was attributed to both Mr. McKissick and to Mr. Zeigler, this was a case

involving joint occupancy and nonexclusive possession. In this case, the evidence

was sufficient to support an inference that Mr. McKissick had knowledge of and

access to the drugs in the car. Mr. McKissick admitted he owned the car. Mr.

McKissick was driving the car immediately prior to the discovery of the drugs in

the back seat. Mr. Zeigler was found to have cocaine hidden in his pants.

Officers testified the sixty-three grams of cocaine were found in plain view on the

floorboard behind the driver’s seat of the car. The observance of drugs in plain

view is a compelling circumstance from which knowledge may be inferred. See

United States v. McCoy, 781 F.2d 168, 170-71 (10th Cir. 1985) (where guns were

in the defendant’s residence in close proximity to his personal possessions, the

inference of constructive possession was properly supported). The inference that

Mr. McKissick knew the drugs were present in his vehicle and he had sufficient

control over the car and access to the drugs was not speculative. The totality of

the circumstances provide the necessary nexus between Mr. McKissick and the

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cocaine found in the car to support his conviction.

3. Count 5: Carrying a Firearm During and in Relation to a Drug
Trafficking Crime in Violation of 18 U.S.C. § 924(c)

Mr. McKissick also contends the evidence was insufficient to support his

conviction under 18 U.S.C. § 924(c). At the time of the offense, 18 U.S.C. §

924(c) provided:

Whoever, during and in relation to any crime of violence or drug
trafficking crime ... uses or carries a firearm, shall, in addition to the
punishment provided for such crime of violence or drug trafficking
crime, be sentenced to imprisonment for five years.[ 2]

Mr. McKissick was charged with “knowingly carrying a firearm during and in

relation to a drug trafficking crime” in violation of 18 U.S.C.§ 924(c). Thus, in

order to establish a violation of § 924(c), the Government had the burden to prove

the following elements of the offense: (1) Mr. McKissick committed a drug

trafficking crime; (2) Mr. McKissick knowingly “carried” a firearm, and (3) Mr.

2
18 U.S.C. § 924(c) was amended in 1998 by the Criminal Use of Guns
Act, Pub. L. No. 105-386, § 1(a)(1), 112 Stat. 3469 (1998), effective November
13, 1998. Section 924(c)(1) now applies to “any person who, during and in
relation to any crime of violence or drug trafficking crime ... uses or carries a
firearm, or who, in furtherance of any such crime, possesses a firearm.” 18
U.S.C. § 924(c)(1)(A). See United States v. Shuler, 181 F.3d 1188, 1189 n.2
(10th Cir. 1999). We do not consider the effects, if any, of the new language of
§ 924(c) because it did not become law until after Mr. McKissick committed the
crimes with which he is charged.

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McKissick carried the firearm “during and in relation to” the commission of that

crime. See Shuler, 181 F.3d at 1189-90 (listing the elements necessary to prove a

violation of § 924(c) when the underlying offense is a crime of violence); United

States v. Lampley, 127 F.3d 1231, 1240 (10th Cir. 1997), cert. denied, 522 U.S.

1137 (1998).

Mr. McKissick contends the government failed to prove he was carrying the

firearm “in relation to” the drug trafficking crime. Mr. McKissick argues the

mere presence of the firearm during the altercation between Mr. McKissick and

Mr. Simpkins in the parking lot at Lan’s Night Club was insufficient to show the

gun was used “in relation to” a drug trafficking offense. However, Mr.

McKissick was charged with “carrying” a firearm in relation to a drug trafficking

offense, not “using” the firearm in relation to a drug trafficking offense.

Therefore, we are not concerned with the analysis of the “use” prong of the

statute. Thus, the sole issue under § 924(c) is whether Mr. McKissick carried the

gun “in relation to” the drug trafficking offense.

We conclude there was sufficient evidence to satisfy the “in relation to”

requirement of § 924(c). In Smith v. United States, 508 U.S. 223, 237-38 (1993),

the Supreme Court clarified the meaning of the “in relation to” language

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contained in § 924(c)(1). The Smith Court held although the phrase “in relation

to” is expansive, it requires at a minimum the firearm have “some purpose or

effect with respect to the drug trafficking crime; its presence or involvement

cannot be the result of accident or coincidence.” 3 Id. The Smith Court further

explained the “in relation to” language precludes the possibility one could be

punished under § 924(c) for possessing a firearm while committing a drug

trafficking offense “even though the firearm’s presence is coincidental or entirely

unrelated to the crime. Instead, the gun at least must facilitate or have the

potential of facilitating, the drug trafficking offense.” Id. at 238 (internal

brackets, quotation marks and citations omitted).

This court addressed the “in relation to” portion of § 924 in United States v.

Shuler, where we stated:

3
The Smith Court also construed the term “use” in § 924(c)(1). 508 U.S.
at 228-37. Its construction of the term was clarified in Bailey v. United States,
516 U.S. 137, 145-150 (1995), where the Court held the word “use” as used in
§ 924(c) requires the government to prove the defendant actively employed the
firearm in furtherance of the underlying crime. However, the Bailey Court noted
this more restrictive reading of the term “use” did not restrict the more expansive
“carry” prong of § 924(c)(1) which could be used to bring offenders within the
scope of the statute who would not satisfy the requirements of the “use” prong.
508 U.S. at 150. Because Mr. McKissick was charged with carrying a firearm in
relation to a drug offense and because the only issue under § 924(c) is whether his
carrying of the fire arm was “in relation to” the drug trafficking offense, the “use”
issue is not present here.

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 A firearm is carried “during and in relation to” the underlying
crime, when the defendant avails himself of the weapon and ... the
weapon plays an integral role in the underlying offense. The
Government must establish a nexus between the carriage of the
firearm and the underlying offense.... To prove this necessary
relation, the Government's evidence must support a finding that the
defendant intended the weapon to be available for use during the
[underlying crime].

181 F.3d at 1190 (internal brackets, quotation marks and citation omitted).

In reviewing the sufficiency of the evidence, this court presumes a nexus

between a firearm and a drug trafficking offense when an individual with ready

access to a firearm commits such an offense. United States v. Baker, 30 F.3d

1278, 1280 (10th Cir.), cert. denied, 513 U.S. 906 (1994). “‘To establish ... that

the firearm was carried “during and in relation to” a drug trafficking crime, the

evidence must support a finding that the firearm furthered the purpose or effect of

the crime and that its presence or involvement was not the result of coincidence.’”

Shuler, 181 F.3d at 1190 (quoting United States v. McRae, 156 F.3d 708, 712 (6th

Cir. 1998)). “‘[A] conviction will be sustained under [§ 924(c)(1)] if the

possessor of a weapon intended to have it available for possible use during or

immediately following the transaction, or it facilitated the transaction by lending

courage to the possessor.’” Shuler, 181 F.3d at 1190 (quoting United States v.

Payero, 888 F.2d 928, 929 (1st Cir. 1989)).

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 Here, there was evidence that Mr. McKissick had ready access to the

firearm during his possession of the cocaine because the Government showed he

shot Mr. Simpkins in the chest while Mr. McKissick was sitting in the car

containing the cocaine. This court has previously recognized guns are “tools of

the trade” in the distribution of illegal drugs. See United States v. Nicholson, 983

F.2d 983, 990 (10th Cir. 1993) (“Drug traffickers may carry weapons to protect

their merchandise, their cash receipts, and to intimidate prospective purchasers.”);

United States v. Martinez, 938 F.2d 1078, 1083 (10th Cir. 1991). Thus, it is

highly unlikely the presence of the handgun in a car containing a large amount of

crack cocaine was merely coincidental. The gun had the potential of facilitating

the distribution of the crack cocaine. Furthermore, the fact Mr. McKissick chose

to use the handgun to shoot Mr. Simpkins in the chest after exchanging gang

related insults does not change our conclusion. Section 924(c) does not require

the gun to be carried or used exclusively in connection with the drug trafficking

crime; the section only requires it to be carried in connection with the drug

trafficking crime. See Nicholson, 983 F.2d at 990 (“the fact that defendant

carried the weapon for personal protection when engaged in lawful activities does

not negate the effect of its presence during illegal narcotics transactions.”). See

also Payero, 888 F.2d at 929 (“The defendant’s sole purpose in carrying the

weapon need not have been facilitation of the drug trafficking crime.”). Here, the

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evidence supports the conclusion Mr. McKissick carried the gun in furtherance of

the drug trafficking crime of possession with intent to distribute cocaine. Cf.

Muscarello v. United States, 524 U.S. 125, 127-38 (1998) (holding defendants

“carried” a firearm within the meaning of § 924(c) when the guns were placed in

locked glove compartment and trunk of the defendants respective cars and

transported “during and in relation to” drug trafficking offenses).

We conclude the evidence was sufficient to support Mr. McKissick’s

convictions.

B. Mr. McKissick’s Pretrial Motion to Dismiss Based on Outrageous
Government Conduct

Mr. McKissick also contends the district court erred in denying his motion

to dismiss Counts 1, 3 and 5 of the indictment based upon lack of jurisdiction and

outrageous governmental conduct. He claims the Oklahoma City Metro Violent

Crimes Task Force, the Oklahoma City Police Department, and the Federal Task

Force for Violent Crimes engaged in “forum shopping” and vindictive

prosecution. He claims their actions amounted to outrageous government

conduct, depriving him of his right to due process, and depriving the federal court

of jurisdiction to proceed in the prosecution against him. He asks this court to

exercise our inherent supervisory powers to remedy the abuse.

-22-
 “Defendants have the burden of proving outrageous government conduct, ...

and we review this issue de novo, with factual findings reviewable under the

clearly erroneous standard.” United States v. Diaz, 189 F.3d 1239, 1245 (10th

Cir. 1999) (quotation marks and citations omitted). “The outrageous conduct

defense ... is an extraordinary defense that will only be applied in the most

egregious circumstances. In order to prevail, the defendant must show that the

challenged conduct violated notions of fundamental fairness and is shocking to

the universal sense of justice.” Id. (quotation marks and citations omitted).

Mr. McKissick’s claims of outrageous government conduct stem from the

fact he was originally held for violations of Oklahoma law, but when the

Oklahoma District Attorney’s office declined to file charges against him for

shooting with intent to kill, he was charged with possession of a firearm in

violation of federal law. He claims the federal indictment was wrongfully

obtained because “[t]he same evidence found to be without merit by the state, was

used by the federal government to bring charges that Mr. McKissick possessed a

firearm,” and he was “held in custody on the same evidence, while law

enforcement searched for a forum to bring the charges.” Mr. McKissick also

contends his rights were violated because he was held under Oklahoma law for

possession of 20.9 grams of cocaine base with intent to distribute (the cocaine

-23-
found in Mr. Zeigler’s pants), but was subsequently charged under federal law

with possession with intent to distribute the sixty-three grams of cocaine base

discovered on the floorboard of the car. Mr. McKissick asserts these actions

amounted to “forum shopping,” were outrageous, and violated his right to due

process because he was held on the state charges while the prosecution searched

for a forum in which to prosecute him. Mr. McKissick asserts the alleged

deprivation of his right to due process deprived the federal court of jurisdiction.

We conclude this argument is without merit. The facts do not demonstrate

abusive governmental conduct requiring the dismissal of Counts 1, 3 and 5 of the

indictment. State and federal governments have a legitimate interest in the

prosecution of a person for acts violative of the laws of both. United States v.

Gourley, 835 F.2d 249, 250 (10th Cir. 1987), cert. denied, 486 U.S. 1010 (1988).

It is not a violation of due process for the United States to present to a federal

grand jury evidence a state prosecutor found insufficient to support state charges. 4

4
The district court noted the government disclosed:

[T]he Oklahoma County District Attorney’s Office’s decision not to
prosecute the shooting with intent to kill charge was based on the
inability of the police to locate and interview the shooting victims.
However, according to the government, further investigation by the
Federal Bureau of Investigation working with the Oklahoma City
Police Department as a part of the Oklahoma City Metro Violent
Crime Task Force has produced statements from the shooting victims

-24-
See United States v. Turpin, 920 F.2d 1377, 1388 (8th Cir. 1990), cert. denied,

499 U.S. 953 (1991). C.f. United States v. Reyes, 966 F.2d 508, 509 (9th Cir.) (a

prosecutor’s decision to pursue a federal crime in federal court rather than to

prosecute the crime in state court does not violate due process), cert. denied, 506

U.S. 927 (1992). Nor does it amount to outrageous government conduct, forum

shopping, or vindictive prosecution. See United States v. DeMichael, 692 F.2d

1059, 1061-62 (7th Cir. 1982) (vindictive prosecution not found where the

defendant was prosecuted by the federal government after two state prosecutions

were dismissed and a federal prosecution was disposed of by plea bargain), cert.

denied, 461 U.S. 907 (1983). Mr. McKissick’s detention prior to being charged

under federal statutes was not the result of collusion between law enforcement

officials. Although the Oklahoma County District Attorney’s office declined to

prosecute Mr. McKissick for shooting with intent to kill, it did authorize a charge

of trafficking in cocaine against Mr. McKissick. The federal charges against Mr.

McKissick included a charge of possession with intent to distribute cocaine. The

actions of the law enforcement officials in holding Mr. McKissick on the state

charges prior to the filing of federal charges cannot be characterized as

“outrageous.” Simply because the federal charges were based on the cocaine

which have been produced to both defendants in this case.

-25-
found on the floorboard and the state charges were based on the cocaine found in

Mr. Zeigler’s pants. Mr. McKissick has not shown his detention prior to the

filing of the federal charges was the result of “forum shopping” or that the actions

of the state and federal officials amounted to outrageous governmental conduct.

Thus, his arguments concerning vindictive prosecution and the jurisdiction of the

district court fail.

III. ANALYSIS OF MR. ZEIGLER’S ARGUMENTS ON APPEAL

Mr. Zeigler makes the following arguments on appeal: (1) the trial court

erred in denying his motion to suppress; (2) the evidence was insufficient to

support Mr. Zeigler’s conviction; (3) the trial court erred in denying his motion

for a mistrial; (4) the application of 21 U.S.C. § 841(b)(1)(A) and § 851(b) was

unconstitutional as applied to his sentencing; and (5) the trial court erred in

enhancing Mr. Zeigler’s sentence two points for possessing a dangerous weapon

during a drug trafficking offense.

A. Mr. Zeigler’s Motion to Suppress

Mr. Zeigler claims the district court erred in denying his motion to suppress

the evidence recovered from his person and the vehicle, as well as statements he

made after his arrest. After conducting a suppression hearing, the district court

-26-
determined the cocaine found on Mr. Zeigler’s person was properly seized

incident to his arrest, the cocaine in the vehicle was properly seized pursuant to a

valid warrant, but could have also been seized in an inventory search, and Mr.

Zeigler’s post-arrest statements were not tainted by any Fourth Amendment

violation.

We recently described our standard of review of a district court's denial of

a motion to suppress evidence as follows:

When reviewing a district court's denial of a motion to
suppress, we consider the totality of the circumstances and view the
evidence in a light most favorable to the government. We accept the
district court's factual findings unless those findings are clearly
erroneous. The credibility of witnesses, the weight to be given
evidence, and the reasonable inferences drawn from the evidence fall
within the province of the district court. Keeping in mind that the
burden is on the defendant to prove that the challenged seizure was
illegal under the Fourth Amendment, the ultimate determination of
reasonableness under the Fourth Amendment is a question of law
reviewable de novo.

United States v. Long, 176 F.3d 1304, 1307 (10th Cir.) (citations omitted), cert.

denied, 120 S. Ct. 283 (1999).

1. Search of Mr. Zeigler’s Person

Mr. Zeigler contends the search of his person by Officer Patten was an

invasive search conducted with Mr. Zeigler’s pants pulled down, in full view of

-27-
the public. Without addressing the district court’s finding the search of Mr.

Zeigler’s person was incident to his lawful, contemporaneous arrest, Mr. Zeigler

characterizes this search as a “pat down” search as defined by Terry v. Ohio, 392

U.S. 1 (1968), and argues his Fourth Amendment rights were violated because the

search went beyond the scope necessary to justify purpose for the intrusion; a

search for weapons. Thus, he asserts the cocaine discovered in his pants should

have been suppressed, and the statements he made after his arrest should have

been suppressed as “fruit of the poisonous tree.”

The Fourth Amendment normally requires that law
enforcement officers obtain a warrant, based on probable cause,
before conducting a search. There are limited exceptions to that rule,
however, one of which is that officers may conduct a warrantless
search of a person when it is incident to a lawful arrest of that
person.

United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998) (citations

omitted). Such a search is not limited to a frisk for weapons, but may have as its

purpose a search for evidence of a crime. See United States v. Simpson, 453 F.2d

1028, 1030 (10th Cir.), cert. denied, 408 U.S. 925 (1972). “A warrantless search

preceding an arrest is a legitimate search incident to arrest as long as (1) a

legitimate basis for the arrest existed before the search, and (2) the arrest

followed shortly after the search.” Anchondo, 156 F.3d at 1045 (quotation marks

and citations omitted). See also United States v. Lugo, 170 F.3d 996, 1003 (10th

-28-
Cir. 1999).

Mr. Zeigler does not argue Officer Patten lacked a legitimate basis to arrest

him prior to the search, and does not dispute that he was formally arrested

immediately after the search. Nevertheless, we note we are satisfied Officer

Patten had probable cause to arrest Mr. Zeigler prior to the search of his person. 5

We also conclude Officer Patten was justified in conducting a full, warrantless

search of Mr. Zeigler’s person incident to his arrest, and the discovery of the

cocaine on Mr. Zeigler’s person was the result of a lawful search incident to

arrest. Consequently, the statements Mr. Zeigler made after his arrest were not

the result of an illegal search leading to his arrest and need not have been

suppressed as the “fruit of the poisonous tree.” We also conclude the district

court did not commit clear error by determining the search was not an intrusive

5
“Arrests must be based on probable cause. Probable cause to arrest exists
when an officer has learned of facts and circumstances through reasonably
trustworthy information that would lead a reasonable person to believe that an
offense has been or is being committed by the person arrested.” Anchondo, 156
F.3d at 1045. Officer Patten testified he had already decided to arrest Mr. Zeigler
in connection with the shooting at Lan’s Night Club prior to the search of Mr.
Zeigler’s person based on the description of the vehicle, the presence of empty
shell casings in the car, Mr. McKissick’s reported gunshot wound, and Mr.
Zeigler’s condition. These circumstances would lead a reasonable person to
believe Mr. Zeigler had committed a crime.

-29-
“strip search.” 6 Thus, we need not address Mr. Zeigler’s further arguments

concerning the application of Terry v. Ohio to this case.

2. Search of the Car

Mr. Zeigler also contends the court should have granted his motion to

suppress the evidence found in the car because the affidavit supporting the search

warrant contained material omissions of fact. Officer Patten and other officers

failed to mention in their reports that they observed cocaine in the car in plain

view. Detective Riggs did not inform the magistrate of their omissions in his

application for the search warrant. Mr. Zeigler argues this amounted to a material

omission of fact in the affidavit, rendering the resulting search warrant invalid.

6
After listening to the testimony of the officers involved and Mr. Zeigler
at the suppression hearing, the district court rejected Mr. Zeigler’s contention that
the search of his person was an “invasive body search,” a “strip search,” or a
“body cavity search” and concluded Mr. Zeigler was properly searched incident to
his lawful arrest. Although Mr. Zeigler testified to the contrary, Officer Patten
testified he did not remove Mr. Zeigler’s clothes during the search, but he might
have unzipped Mr. Zeigler’s pants after discovering a lump in Mr. Zeigler’s
crotch area that was inconsistent with his genitals. Officer Patten’s testimony
supports the district court’s finding of fact. We will not second guess the trial
judge’s conclusion as to the credibility of witnesses and the weight to be given to
the evidence in the absence of a showing that those findings are clearly erroneous.
See Long, 176 F.3d at 1307; United States v. Pappas, 735 F.2d 1232, 1233 (10th
Cir. 1984). Mr. Zeigler has not shown that the court’s finding concerning the
degree of intrusiveness of the search was clearly erroneous.

-30-
 Under Franks v. Delaware, 438 U.S. 154 (1978), the district court is

required to hold a hearing on the veracity of the affidavit supporting a warrant “if

the defendant makes a substantial showing that the affidavit contains intentional

or reckless false statements and if the affidavit, purged of its falsities, would not

be sufficient to support a finding of probable cause.” United States v. Kennedy,

131 F.3d 1371, 1376 (10th Cir. 1997) (citing Franks, 438 U.S. at 155-56), cert.

denied, 119 S. Ct. 151 (1998)). The standards of deliberate falsehood and

reckless disregard set forth in Franks apply to material omissions, as well as

affirmative falsehoods. Id. If the district court determines the opponent of the

search warrant has proven his or her case by a preponderance of evidence at the

hearing, then the district court must suppress the evidence obtained pursuant to

the warrant. Id.

Although it would have been better had Detective Riggs included the

information concerning the police reports in the affidavit, we are not convinced it

was the result of “reckless disregard for the truth” or a “deliberate falsehood.”

Furthermore, we conclude none of the omitted information would have altered the

magistrate judge's decision in this case. Detective Riggs requested a warrant to

search for evidence of a shooting as well as for cocaine in the car. Mr. Zeigler

does not dispute the validity of the affidavit to support a search for evidence of

-31-
the shooting. Furthermore, Detective Riggs stated in the affidavit that he had

personally observed the bag of cocaine in plain view in the car when he looked at

the sealed car in the impoundment lot. We conclude the facts contained in the

affidavit would have supported the issuance of a search warrant even if Officer

Riggs had noted the other officers failed to mention the cocaine they observed in

plain view in their reports. Thus, we affirm the district court's ruling, and need

not address the district court’s alternative basis for upholding the search.

B. The Sufficiency of the Evidence to Support Mr. Zeigler’s Convictions

Mr. Zeigler contends the evidence was insufficient to support the jury’s

verdict on the third and fourth counts. Count Three charged both defendants with

possession of sixty-three grams of crack cocaine with intent to distribute. Count

Four charged Mr. Zeigler with possession of sixteen grams of crack cocaine with

intent to distribute. Our review of the sufficiency of the evidence to support a

jury verdict is as stated previously:

[I]n reviewing the sufficiency of the evidence to support a jury
verdict, this court must review the record de novo and ask only
whether taking the evidence – both direct and circumstantial,
together with the reasonable inferences to be drawn therefrom – in
the light most favorable to the government, a reasonable jury could
find the defendant guilty beyond a reasonable doubt.

United States v. Hanzlicek, 187 F.3d at 1238 (quotation marks and citation

omitted).

-32-
 1. Count 3: Possession of the Sixty-Three Grams of Cocaine With
Intent to Distribute, in Violation of 21 U.S.C. § 841(a)(1)

Mr. Zeigler claims the evidence was insufficient to support his conviction

for possession with intent to distribute the sixty-three grams of cocaine found in

the back of the car. He argues the government had no evidence to connect him to

the sixty-three grams of cocaine except for his presence in the car, and this was

insufficient to convict him on Count 3.

As stated previously in our analysis of Mr. McKissick’s appeal, this is a

case of constructive joint possession. Thus, the government was required to show

some connection or nexus linking Mr. Zeigler to the sixty-three grams of cocaine

by presenting “evidence supporting at least a plausible inference that the

defendant had knowledge of and access to the ... contraband.” Valadez-Gallegos,

162 F.3d at 1262 (quotation marks and citation omitted). The following facts

support the inference that Mr. Zeigler was aware of the sixty-three grams of

cocaine and had access to it: Mr. Zeigler was the only passenger riding in the car

with Mr. McKissick; cocaine was discovered on Mr. Zeigler’s person; the sixty-

three grams of cocaine were discovered in plain view on the floorboard of the

car; 7 the evidence indicated sixty-three grams of cocaine is a commercial quantity

7
The observation of drugs in plain view is a compelling circumstance from
which knowledge may properly be inferred. See McCoy, 781 F.2d at 171 (the

-33-
of cocaine, supporting the inference that it was not for personal use. In viewing

the evidence in the light most favorable to the Government, we have no trouble

concluding the jury could have properly found Mr. Zeigler guilty beyond a

reasonable doubt on Count 3.

2. Count 4: Possession With Intent to Distribute the Sixteen Grams
of Cocaine Found on Mr. Zeigler’s Person, in Violation of 21 U.S.C. § 841(a)(1)

Mr. Zeigler contends the evidence was insufficient to support his

conviction on this count because there was “no credible evidence that the quantity

of drugs possessed did not exceed an amount for personal consumption and

therefore did not support an inference of intent to distribute.” However, at trial,

Officer Patten testified he had been involved in hundreds of narcotics arrests and

a personal use quantity of crack cocaine was usually one “rock” weighing about

0.2 grams, costing about $20.00. Although Officer Tonya Estridge conceded that

it was possible for sixteen grams to be for the personal use of a heavy user, she

also testified she had never encountered such a heavy user in her eleven years of

work on the police force. Officer Estridge further testified crack cocaine sold for

personal use was usually sold in amounts valued between $10.00 and $40.00. In

inference of constructive possession was proper where guns were either in plain
view in defendant’s residence or in “places where they could hardly have escaped
his knowledge.”).

-34-
evaluating the evidence in the light most favorable to the Government, we

conclude the jury could have reasonably determined Mr. Zeigler intended to

distribute the sixteen grams of crack cocaine.

C. Refusal to Grant a Mistrial

Mr. Zeigler next contends the district court erred in denying his motion for

a mistrial because he was prejudiced by the use of a stun belt restraint and due to

the remarks of a potential juror during voir dire. We review the court’s denial of

Mr. Zeigler’s motion for a mistrial for an abuse of discretion. United States v.

Cerrato-Reyes, 176 F.3d 1253, 1258 (10th Cir. 1999).

1. The Use of a Stun Belt

After the completion of jury selection, but before opening arguments,

counsel for Mr. Zeigler approached the bench and informed the court he had just

learned the defendants were wearing stun belts beneath their clothing. The court

confirmed it had approved such a precaution and noted the devises were not

noticeable. During a hearing in chambers the next morning, the court set forth its

reasons for allowing the stun belts to be used. Among these reasons, the court

noted the United States Marshals suspected other gang members from Los

Angeles might attempt to disrupt the proceedings. The court also found the stun

-35-
belts were not visible under the defendants’ clothing. Although Mr. Zeigler’s

counsel had not noticed the belts because he was sitting across the table from the

defendants, he argued the jury might have been able to see them. However, there

is no evidence in the record that any member of the jury noticed the stun belts.

Thus, we do not presume prejudice to Mr. Zeigler and conclude the court did not

abuse its discretion in denying Mr. Zeigler’s motion for a mistrial. See Yates v.

United States, 362 F.2d 578, 579 (10th Cir. 1966) (no prejudice to the defendant

found where there was no evidence any juror in fact observed him wearing

shackles in the courtroom).

2. The Remarks of a Potential Juror

Mr. Zeigler contends the trial court erred in denying his motion for a

mistrial based on the alleged prejudice resulting from the remarks of a potential

juror. In response to questioning by the court during voir dire, one potential juror

indicated she had a preconceived idea of the defendants’ guilt due to the “body

language” the defendants were exhibiting. The potential juror also indicated she

had experience with “them” due to her seven and a half years of employment as a

nurse at the Oklahoma Department of Corrections. 8 The court dismissed the

8
The following exchange took place between the court and the potential
juror:

-36-
potential juror for cause, and both defendants’ counsel moved for a mistrial,

claiming all the potential jurors had been tainted by the remarks. The court

denied the motion, but immediately cautioned the remainder of the jury pool to

disregard the remarks, noting the dismissed vinireperson was “no expert that the

Court is aware of in any kind of body language,” Mr. McKissick and Mr. Zeigler

did not appear to the court to be displaying any kind of body language or posture

that would affect the jury’s determination in any way.

“When improper or prejudicial remarks are made by one venireperson and

THE COURT: [Y]ou said you don’t believe so. Let me ask you a
question. All that the government or all that Mr. Zeigler or Mr.
McKissick are asking of you is that you not have some preconceived
idea that you couldn’t put aside and listen and basically make a
decision based on the evidence that is introduced here and the law as
I instruct you, and that’s all that any of the parties are asking is
whether you can do that.

VENIREPERSON: I believe I could do that. My only hesitation was
I deal with them every day. I have a preconceived [idea] because of
their body language that they are presenting now. I have an idea how
they are presenting without hearing any evidence of any kind.

THE COURT: Can you set that aside []?

VENIREPERSON: I believe I can. I believe I can.

THE COURT: ... [O]ut of an abundance of caution I don’t want to
put you in a difficult position or any of the parties I think I will
excuse her for cause.

-37-
heard by other venirepersons during the jury selection process, we have held that

the test of juror impartiality is whether the juror can lay aside his impression or

opinion and render a verdict based on the evidence presented in court.” United

States v. Lacey, 86 F.3d 956, 969 (10th Cir.), cert. denied, 519 U.S. 944 (1996)

(quotation marks and citation omitted). Although the excused juror demonstrated

some amount of bias against the defendants, “the partiality of the petit jury is

evaluated in light of those persons ultimately empaneled and sworn, not those

who are excused from service.” Id. The district court apparently believed its

cautionary instruction was sufficient to cure any possible prejudice against the

defendant. The court also told the remaining jurors that, in its opinion, the

defendants were not exhibiting any type of body language. “Because the district

court is in the best position to judge the effect of improper statements on a jury

and the sincerity of the jurors’ pledge to abide by the court's instructions, its

assessment is entitled to great weight.” Id. (quotation marks and citations

omitted). After reviewing the record, we do not believe the district court abused

its discretion by denying Mr. Zeigler’s request for a mistrial.

D. Enhancement of Mr. Zeigler’s Sentence

Mr. Zeigler contends the district court violated his right to equal protection

under the law when it used two Oklahoma drug convictions both as predicates for

-38-
the 21 U.S.C. § 841(b) enhancement and as convictions resulting in three criminal

history points each under U.S.S.G. § 4A1.2(d).

We review Mr. Zeigler’s equal protection claim regarding the sentencing

guidelines under the rational basis standard to determine whether the challenged

sentence is based on an arbitrary distinction or upon a rational sentencing scheme.

Chapman v. United States, 500 U.S. 453, 465 (1991). “[S]tatutory classification

will be set aside as violative of equal protection only if no grounds can be

conceived to justify them as rationally related to a legitimate state interest.”

United States v. Lee, 957 F.2d 778, 782 (10th Cir.), cert. denied, 506 U.S. 978

(1992).

In drug trafficking cases involving fifty grams or more of cocaine base, 21

U.S.C. § 841(b)(1)(A) calls for a mandatory life sentence if the defendant

committed the instant offense “after two or more prior convictions for a felony

drug offense have become final.” 21 U.S.C. § 841(b)(1)(A). 21 U.S.C. § 802(13)

defines the term “felony” for purposes of the § 841 enhancement as “any Federal

or State offense classified by applicable Federal or State law as a felony.”

U.S.S.G. § 4A1.1(a) requires the addition of three points for each prior sentence

of imprisonment exceeding thirteen months. The total number of points is used to

-39-
determine the criminal history category. U.S.S.G. § 4A1.1. While U.S.S.G.

§ 4A1.2(c)(2) provides “[j]uvenile status offenses” are never counted as a prior

sentence, U.S.S.G. § 4A1.1(d)(1) requires three points to be added under

§ 4A1.1(a) if the defendant committed the prior offense prior to the age of

eighteen and “the defendant was convicted as an adult and received a sentence of

imprisonment exceeding one year and one month.”

In accordance with 21 U.S.C. § 851, the government filed an information

prior to trial giving Mr. Zeigler notice that his previous two drug related felonies

could result in life imprisonment if convicted on the instant drug charges. In the

presentence report, Mr. Zeigler’s previous drug convictions were used in

determining his criminal history score of IV pursuant to U.S.S.G. § 4A1.1(a).

According to the presentence report, the guideline range for imprisonment was

210-262 months based on Mr. Zeigler’s total offense level of 34 and criminal

history score of IV, but because the two previous drug felonies could be used to

enhance his sentence to life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A),

the proper term was life imprisonment. 9 After hearing argument at the sentencing

9
According to U.S.S.G. § 5G1.1(b), “[w]here a statutorily required
minimum sentence is greater than the maximum of the applicable guideline range,
the statutorily required minimum sentence shall be the guideline sentence.”

-40-
hearing, the district court rejected Mr. Zeigler’s constitutional argument and

concluded it had no choice under the guidelines but to sentence him to life

imprisonment pursuant to 21 U.S.C. § 841, and adopted the criminal history

category and total offense level recommended in the presentence report.

Mr. Zeigler does not deny he was convicted of the prior Oklahoma

offenses, but contends the use of these convictions as the predicates for the

§ 841(b) enhancement and as convictions resulting in the three criminal history

points each under U.S.S.G. § 4A1.2(d) denied him equal protection under the law.

Specifically, he argues he was treated differently than similarly situated persons

because some states do not allow the unsealing of juvenile records, and the states

differ on the ages and crimes for which persons under eighteen can be prosecuted

as adults. He also argues U.S.S.G. § 4A1.2(d)(1) is void for vagueness.

We conclude that the use of Mr. Zeigler’s Oklahoma felonies as predicate

offenses for the § 841 enhancement did not deprive him of equal protection under

the law. Congress intentionally left certain aspects of the § 841 enhancements to

be triggered by the laws of the states. The language of 21 U.S.C. § 802(13)

clearly ties the definition of the term “felony” for purposes of this enhancement to

the state’s classification of the crime as a felony. Mr. Zeigler was convicted as an

-41-
adult for the two Oklahoma felonies. Although States have different criteria for

determining when a juvenile can be charged as an adult, this does not render the

sentencing scheme irrational any more than does relying on the states’ various

definitions of felonies. “It is not irrational for Congress to defer to state law with

regard to the characteristics of a prior offense, and doing so is no more

intentionally arbitrary than our system of federalism itself.” United States v.

Lender, 985 F.2d 151, 156 n.* (4th Cir. 1993) (rejecting equal protection

challenge to 18 U.S.C. § 924(e)(2)(B), Armed Career Criminal Act's definition of

“violent felony” as “any crime punishable by imprisonment for a term exceeding

one year” and holding Congress intended to incorporate state law in determining

whether offenses committed while the defendant was a juvenile are to be

considered predicate offenses under the Act). See also United States v. Mendiola,

42 F.3d 259, 261-62 (5th Cir. 1994) (rejecting an equal protection and due

process attack on U.S.S.G. § 2P.1(b)(3) where the defendant argued his rights

were violated by the incorporation of state law in determining whether he was

entitled to a reduction in his sentence under the guidelines); United States v.

Cure, 996 F.2d 1136, 1139-41 (11th Cir. 1993) (rejecting the same argument put

forth in Lender, and stating when Congress expressly indicates an intent to

incorporate diverse state laws in defining a predicate offense, the Supreme

Court’s preference for uniformity is not controlling), cert. denied, 510 U.S. 1121

-42-
(1994); United States v. Inglesi, 988 F.2d 500, 502-03 (4th Cir. 1993) (rejecting

the defendant’s equal protection attack on U.S.S.G. § 4A1.2(d) where the

defendant argued an unconstitutional disparity arose depending upon whether the

defendant was convicted of the predicate offenses in a state that seals juvenile

records). Moreover, Mr. Zeigler’s assertion that similarly situated juveniles

might be treated differently because some states allow the unsealing of juvenile

records is inapplicable to this appeal because he was convicted as an adult.

Because we conclude the use of Mr. Zeigler’s adult certified felonies as

predicate offenses in sentencing him to life imprisonment under § 841(b) did not

violate his right to equal protection, we need not address Mr. Zeigler’s further

arguments concerning the use of his prior felony offenses for the enhancement of

his guideline sentence pursuant to U.S.S.G. § 4A1.1(a). Because Mr. Zeigler’s

prior felonies were properly taken into consideration by the district court in

imposing the mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A), the

statutory mandatory sentence was greater than the maximum potential under the

guidelines regardless of whether the calculation of the guidelines sentence

includes the increase under U.S.S.G. §4A1.1(a). In such a situation, the statutory

mandatory minimum sentence becomes the guidelines sentence. U.S.S.G.

§ 5G1.1(b). Thus, Mr. Zeigler’s arguments concerning the application of

-43-
U.S.S.G. § 4A1.1(a), and the alleged vagueness of U.S.S.G. § 4A1.2(d)(1) are

moot. See United States v. Gray, 152 F.3d 816, 822 (8th Cir. 1998) (declining to

address the defendant’s arguments concerning the district courts rulings under the

Sentencing Guidelines because the district court did not err by sentencing the

defendant under 21 U.S.C. § 841(b)(1)(A)), cert. denied, 119 S. Ct. 1091 (1999);

United States v. Sepulveda, 15 F.3d 1161, 1202 (1st Cir. 1993) (defendant’s

argument under guidelines would have no effect on the sentence “due to the

overriding force of the mandatory minimum prescribed by 21 U.S.C.

§ 841(b)(1)(B).”).

E. Enhancement Under U.S.S.G. § 2D1.1(b)(1)

As stated above, because the statutory mandatory minimum sentence

imposed in this case was life imprisonment, the issue of whether the district court

properly increased Mr. Zeigler’s sentencing guidelines range by two levels for

possession of a firearm during a drug trafficking offense pursuant to U.S.S.G.

§ 2D1.1 (b)(1) is moot.

The judgment of the district court in cases No. 98-6320 and 98-6351 is

AFFIRMED.

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