F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 17 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-6242
v. (W. District of Oklahoma)
(D.C. No. 98-CR-93)
WILLIAM VANCE LANE, JR.,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
I. INTRODUCTION
After examining the briefs and 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
After a jury trial, William Vance Lane, Jr. was convicted of one count of
conspiracy to posses cocaine base with intent to distribute in violation of 21
U.S.C. § 846 and three counts of distribution of cocaine base in violation of 21
U.S.C. § 841. In calculating Lane’s sentence under the United States Sentencing
Guidelines (“U.S.S.G.”), the district court increased Lane’s offense level two
points pursuant to U.S.S.G. § 2D1.1(b)(1) on the ground that Lane possessed a
firearm. Furthermore, at the sentencing hearing, the district court denied Lane’s
request to depart downward pursuant to U.S.S.G. § 5K2.0. Lane premised his
departure motion on (1) the disparity in the Sentencing Guidelines as to the length
of sentences for cocaine base and powder cocaine and (2) Congress’ failure to
adopt the 1995 recommendations of the United States Sentencing Commission to
reduce that disparity. The district court concluded that it lacked authority to
depart on those grounds. On appeal, Lane challenges both the district court’s
decision that a § 2D1.1(b)(1) firearm enhancement was appropriate and its
conclusion that it was without power to depart downward on the grounds
advanced at the sentencing hearing. This court exercises jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirms.
-2-
II. ANALYSIS
1. SECTION 5K2.0 DOWNWARD DEPARTURE MOTION
Lane contends the district court erred when it concluded that it lacked
authority to depart downward based on the disparity in the length of sentences
between cocaine base and powder cocaine and on Congress’ failure to correct that
disparity. This court reviews de novo a district court’s conclusion that it is
without authority to grant a downward departure. United States v. Maples, 95
F.3d 35, 37 (10th Cir. 1996).
This court has specifically and clearly held that the disparity in the
Sentencing Guidelines between cocaine base and powder cocaine is not a valid
basis for downward departure. See United States v. Maples, 95 F.3d 35, 37-38
(10th Cir. 1996) (“[T]he expansive issue of appropriate sentencing levels for
crack offenses is not the sort of discrete, individual and case-specific mitigating
circumstance justifying downward departure . . . .”); see also United States v.
McCloud, 127 F.3d 1284, 1291 (10th Cir. 1997) (citing Maples). 1 The fact that
the Sentencing Commission recommend the elimination of the disparity does not
1
This court is puzzled by Lane’s counsel’s failure to discuss or even cite
Maples and McCloud, binding Tenth Circuit precedent which directly control the
disposition of this issue. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)
(noting that a panel of this court is “bound by the precedent of prior panels absent
en banc reconsideration or a superseding contrary decision by the Supreme
Court”).
-3-
alter the result. See Maples, 95 F.3d at 37 (“Congress has now rejected the
Commission’s recommendation, voting instead to preserve the higher sentences
for crack-related crimes. Accordingly, . . . the district court lacked power to
depart and the sentencing disparities of the current scheme have not only been
considered by Congress and the President, but also retained.”). Thus, the district
court was correct in concluding that it lacked the power to depart on those
grounds.
2. SECTION 2D1.1(b)(1) FIREARM ADJUSTMENT
Lance asserts that the district court erred in increasing his offense level two
points pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a firearm. Section
2D1.1(b)(1) provides that “[i]f a dangerous weapon (including a firearm) was
possessed, increase [the defendant’s base offense level] 2 levels.” This
enhancement “should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” McCloud, 127 F.3d
at 1291-92. Accordingly, the government must establish by a preponderance of
the evidence that the weapon was proximate to the drug offense. See United
States v. Flores, 149 F.3d 1272, 1280 (10th Cir. 1998), cert. denied, 119 S. Ct.
849 (1999). If the government succeeds in this, the burden then shifts to the
-4-
defendant to “show that it is improbable that the weapon was related to the
offense.” United States v. Robertson, 45 F.3d 1423, 1449 (10th Cir. 1995).
The weapon at issue in this case was seized during the execution of a
search warrant at an apartment shared by Lane and his live-in girlfriend and co-
defendant Nakisha Johnson. When the warrant was executed on May 6, 1998,
Lane and Johnson were present in the apartment. During the sentencing hearing,
Federal Bureau of Investigation Special Agent Nick Manns testified that during
the course of the search, law enforcement authorities found a small quantity of
marijuana in the pocket of a child’s dress hanging in Lane’s bedroom closet.
Also located in that closet was a Pittsburgh Steelers football jacket identical to a
jacket Lane had been observed wearing on previous occasions. In the inside
pocket of the jacket, detectives found an unloaded .38 caliber revolver in a
holster. Officers also found .38 caliber ammunition scattered throughout the
bedroom and closet. Manns testified that the discovery of the firearm and holster
together indicated that the weapon was intended to be carried. Manns further
testified that his investigation showed that Lane had been dealing drugs out of the
apartment. In fact, the government introduced at trial a videotape recording of
Lane engaging in one such transaction. That transaction, however, took place in
December and the firearm was not seized until May.
-5-
Lane’s primary assertion at the sentencing hearing was that the government
failed to carry its burden of proof that the weapon was present because it had not
adduced any evidence that the weapon was present in the apartment during any of
the drug transactions caught on videotape or detailed by confidential informants.
In response, the government presented testimony from Manns that during a
confession, Lane’s co-conspirator Kelvin Bagby indicated that Lane spoke about
possessing a firearm and shooting someone. Manns further testified Lane’s co-
conspirator Kore Winston indicated during an interview that Lane had displayed
the .38 caliber revolver while Winston was visiting Lane’s residence. Winston
indicated that Lane stated he had purchased the gun from a crack user in order to
protect his drug supply and other belongings.
At the conclusion of the sentencing hearing, the district court noted some
initial hesitancy because of the time between the video proof of drug dealing from
Lane’s apartment in December to the time the warrant was executed in May.
Nevertheless, the district court ultimately concluded as follows:
Here, with regard to the crack-cocaine activities, it appears to
me that the evidence supports the government’s position that Mr.
Lane was actively pursuing the crack-cocaine criminal venture . . . up
to the time he was arrested, and that would span the period of time
between December of 1997 and the last video proof of his use of the
apartment for that purpose was established, to the time of the search
warrant when the proof of the last act from the apartment. So it does
appear that, while the proof of the last act from the apartment was in
December of 1997 and the gun was found on May 6th of 1998, that,
in the meantime, Mr. Lane actively pursued the criminal venture as
-6-
he had before, and had the gun, as he admitted to both Bagby and
Kore Winston, not only having it but showing it to Winston and
having told Bagby that he had it for protection, and having showed
Winston that he had bought it from a [crack] smoker for protecting
his drugs and his house and his personal property at his apartment.
So, with respect to the crack-cocaine criminal venture that was
ongoing, it is my belief that those requirements are now satisfied.
On appeal, Lane does not contest the district court’s findings of fact,
including the findings that the conspiracy continued up until the time he was
arrested or that he told Winston and Bagby that he possessed the weapon and used
it for protecting his drugs. Instead, Lane simply asserts that the district court
erred in concluding the government was not required to prove the firearm was
possessed at the same time drug dealing was conducted at his apartment. This
court reviews factual findings under U.S.S.G. § 2D1.1(b)(1) for clear error; gives
due deference to the district court’s application of the sentencing guidelines to the
facts; and reviews purely legal questions de novo.” United States v. Vaziri, 164
F.3d 556, 568 (10th Cir. 1999).
Lane’s argument seriously misapprehends the basis upon which the district
court imposed the § 2D1.1(b)(1) enhancement. In addition to the three specific
distribution counts, Lane was convicted of conspiracy to possess with intent to
distribute cocaine base. At the sentencing hearing, the district court specifically
found, as a matter of fact, that the conspiracy was ongoing up until the point of
Lane’s arrest. The district court further found, crediting the statements of Bagby
-7-
and Winston, that Lane possessed the weapon during the course of that conspiracy
and utilized the gun to protect the drugs that were part and parcel of the
underlying conspiracy. The fact that a gun matching the descriptions by Bagby
and Winston was found in Lane’s apartment on May 6th merely corroborates
those statements. Furthermore, Manns specifically testified at the sentencing
hearing that the manner in which Lane had stored the firearm in its holster
indicated that the gun was meant to be carried.
Lane is simply incorrect as a matter of law in asserting that the government
had to tie the gun and the apartment to a specific drug transaction. Instead, the
government simply had to prove, by a preponderance of the evidence, a temporal
and spatial relation existed between Lane, the firearm, and the underlying drug
conspiracy. See United States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993).
The evidence adduced by the government was sufficient to establish that
relationship. Accordingly, the burden shifted to Lane to show that it is
improbable that the weapon was related to the conspiracy. Robertson, 45 F.3d at
1449. Because Lane did not adduce any such evidence, the district court did not
err in applying the § 2D1.1(b)(1) adjustment.
-8-
III. CONCLUSION
For those reasons set out above, the sentence imposed by the United States
District Court for the Western District of Oklahoma is hereby AFFIRMED.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
-9-