[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 24, 2006
No. 05-11808 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00210-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLANCY DALLAS NELSON,
a.k.a. Mouse,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(February 24, 2006)
Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.
PER CURIAM:
Clancy Dallas Nelson appeals his 135-month sentence imposed after he pled
guilty to two counts: (1) possession of a listed chemical with intent to manufacture
a controlled substance, in violation of 21 U.S.C. § 841(c)(1); and (2) possession
with intent to distribute methamphetamine, in violation of § 841(a)(1). On appeal,
Nelson argues that the base offense level was wrongly calculated based on the drug
quantity attributed to him. He contends that the district court’s estimate of the drug
quantity was clearly erroneous because no reliable information existed to support
the calculation, because: (1) the witness had no direct knowledge of the quantities
of methamphetamine cooked by Nelson; (2) police did not corroborate the
witness’s statements in regard to Nelson; and (3) the statements of the witness,
taken on two different occasions, were inconsistent as to the amount and weight of
the drugs Nelson produced.
We review the drug quantity attributable to a defendant found by the district
court for clear error. United States v. Zapata, 139 F.3d 1355, 1357 (11th Cir.
1998). “Although sentencing may be based on fair, accurate, and conservative
estimates of the quantity of drugs attributable to a defendant, sentencing cannot be
based on calculations of drug quantities that are merely speculative.” Id. at 1359.
“In estimating the quantity of drugs attributable to a defendant, a court may base its
computation on evidence showing the average frequency and amount of a
defendant's drug sales over a given period of time.” United States v. Frazier, 89
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F.3d 1501, 1506 (11th Cir. 1996). Additionally, “the court could consider any
information, including reliable hearsay . . . so long as the defendant has ‘the
opportunity to rebut the evidence or generally to cast doubt upon its reliability.’”
United States v. Query, 928 F.2d 383, 385 (11th Cir. 1991) (quoting United States
v. Castellanos, 904 F.2d 1490, 1496 (11th Cir. 1990)).
Because there was sufficient reliable evidence for the district court to find
that Nelson was responsible for 93.5 grams of methamphetamine, based on
concrete instances of being given a definite amount of methamphetamine testified
to by a co-defendant and the normal practices of drug dealers testified to by an
officer, the district court did not clearly err in finding that Nelson’s base offense
level was 32.
Nelson next argues that the enhancement should not have been applied. He
relies upon the comment to U.S.S.G. § 2D1.1.(b)(1), which states that the
enhancement for possession of a dangerous weapon should not be applied if it was
clearly improbable that the weapon was not connected with the offense, and here,
the gun found during a traffic stop of his car was disassembled.
We review the application of the guidelines to a set of facts de novo, but the
finding of facts themselves are reviewed for clear error, United States v. Lewis,
115 F.3d 1531, 1536 (11th Cir. 1997). Section § 2D1.1(b)(1) provides for a
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two-level enhancement when the defendant possesses a firearm in furtherance of a
drug crime. The commentary explains that "[t]he adjustment should be applied if
the weapon was present, unless it is clearly improbable that the weapon was
connected with the offense." U.S.S.G. § 2D1.1(b)(1), cmt. n.3. We have held that:
[o]nce the prosecution has shown by a preponderance of the evidence
that the firearm was present at the site of the charged conduct, the
evidentiary burden shifts to the defendant to show that a connection
between the firearm and the offense is clearly improbable. . . .
Subsection 2D1.1(b)(1) itself does not require a connection between
the offense and the firearm. It requires only that the firearm have been
possessed by the defendant. The commentary, moreover, provides
simply that "the adjustment should be applied if the weapon was
present . . . ." If a weapon was present, the enhancement applies unless
a connection was clearly improbable.
United States. v. Hall, 46 F.3d 62, 63-64 (11th Cir. 1995)(internal citations
omitted). Further, we have held that “the firearm does not have to facilitate the
underlying offense. . . . We know of no requirement that the firearms be loaded or
operable to meet the ‘in connection with’ requirement.” United States v. Rhind,
289 F.3d 690, 695 (11th Cir. 2002).
Because Nelson failed to show that it was clearly improbable that the
disassembled firearm found in his vehicle while he was carrying methamphetamine
was connected to the drug offense, and we have held that a firearm does not have
to be operable in order to be found to be used in connection with an offense, the
district court did not err in giving him a two-level firearm enhancement.
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Accordingly, we affirm.
AFFIRMED.1
1
Nelson’s request for oral argument is denied.
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