United States v. Fields

• Court: Court of Appeals for the First Circuit
• Decided: February 26, 1992
• Docket: 91-1910
• Status: Published

Opinion

USCA1 Opinion

          February 26, 1992     [NOT FOR PUBLICATION]

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No. 91-1910

UNITED STATES,

                                      Appellee,

                                          v.

                                  MICHAEL J. FIELDS,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                       [Hon. Shane Devine, U.S. District Judge]
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                                        Before

                              Torruella, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Selya, Circuit Judge.
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               Robert  R.  Bennett on  brief  and Objection  To  Motion For
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          Summary Disposition for appellant.
               Jeffrey  R.  Howard, United  States  Attorney, and  Peter E.
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          Papps, First Assistant U.S. Attorney, on Memorandum In Support Of
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          Motion For Summary Disposition for appellee.

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Per Curiam.  The appellant, Michael Fields, was arrested
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            in  the  driver's  seat of  a  passenger  van  during a  drug

            "buy/bust" operation conducted  by undercover police  agents.

            Fields' passenger, Philip  Wight, was  also arrested, as  was

            Edward  Dunbar, a  confederate  of Wight  and Fields  who had

            driven to the scene in his own car and negotiated the sale of

            ten  pounds of marijuana  to the  undercover agents.   Police

            recovered almost  ten pounds of  marijuana from the  van, and

            later  found  a loaded  pistol and  "flash suppressor"  in an

            unzippered gun bag on  the floor of the van,  underneath some

            newspapers.  The police  also retrieved a gun from  the floor

            of Dunbar's car.

                 The government  charged  Fields with  (1) conspiracy  to

            possess marijuana  with intent to  distribute, (2) possession

            of marijuana with intent to distribute, and (3) possession of

            a firearm during the commission of a  drug trafficking crime.

            A  jury  convicted  Fields  of  the  conspiracy  charge,  but

            acquitted  him  of the  other  charges.   Notwithstanding the

            acquittal on the gun charge,  the district court, calculating

            Fields'  penalty under the  Sentencing Guidelines,  added two

            levels to  his "offense level" for possession  of a dangerous

            weapon during the commission  of a drug offense.   U.S.S.G.  

            2D1.1(b)(1).  The court sentenced Fields  to a prison term of

            sixteen  months, the  maximum allowed  under the  Guidelines.

            Had the court not made the two-level enhancement, the maximum

            penalty would have been twelve months.

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On appeal, Fields challenges only the two-level sentence

            enhancement.  He  argues first that the  district court erred

            when it  enhanced his  sentence on  the basis  of conduct  of

            which a jury had  found him not guilty.   Fields acknowledges

            that  his argument  is  directly contrary  to our  holding in

            United States v.  Mocciola, 891 F.2d  13, 17 (1st Cir.  1989)
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            that facts underlying a prior acquittal may  be considered by

            the sentencing  court when  those facts  are  supported by  a

            preponderance of the evidence, but he  invites us to overrule

            Mocciola on the  basis of the Ninth Circuit's  recent opinion
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            in United States  v. Brady,  928 F.2d 844,  850-52 (9th  Cir.
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            1991).   We note that every  court of appeals  other than the

            Ninth Circuit that  has considered the issue  has agreed with

            Mocciola,1 and decline the invitation.
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                 Fields also argues that the  evidence presented at trial

            was insufficient to  support the  sentence enhancement.   "We

            remain mindful  that the  determination of  factbound matters

            pertinent  to  sentencing   need  only  be  supported   by  a

            preponderance of the evidence  and can be set aside  only for

            clear error."  United States v. David, 940 F.2d 722, 739 (1st
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               1 See, e.g.,  United States v. Coleman, 947  F.2d 1424 (10th
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          Cir. 1991);  United States  v. Manor, 936  F.2d 1238,  1243 (11th
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          Cir. 1991);  United States  v. Lawrence, 934  F.2d 868  (7th Cir.
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          1991);  United States  v. Duncan,  918  F.2d 647,  652 (6th  Cir.
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          1990); United States v. Rodriguez-Gonzalez, 899 F.2d 177 (2d Cir.
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          1990);  United States  v. Dawn,  897 F.2d  1444 (8th  Cir. 1990);
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          United  States v.  Isom, 886  F.2d  736 (4th  Cir. 1989);  United
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          States v.  Juarez-Ortega, 866  F.2d 747  (5th Cir.  1989); United
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          States v. Ryan, 866 F.2d 604 (3d Cir. 1989).
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Cir. 1991).  There was no such error here.  The commentary to

            U.S.S.G.   2D1.1(b)(1) instructs the sentencing court to make

            the enhancement  whenever a weapon is "present,  unless it is

            clearly improbable  that the  weapon was  connected with  the

            offense."      Fields does  not  dispute  that  a weapon  was

            "present"  in this  case, and  the district  court  had ample

            evidence  from which to  infer a  connection between  the gun

            found in the  van and the  drug offense: (1) Edward  Dunbar's

            uncontradicted testimony that  he gave the  gun to Fields  in

            Fields' apartment, (2) the fact that  Dunbar did not give the

            gun to Fields until shortly before the drug sale  was to take

            place, and (3) Dunbar's testimony (again uncontradicted) that

            he instructed  Fields to  consider using  the gun  to support

            Dunbar if the deal went sour and turned violent.

                 Given this evidence, "we would  be blinking reality were

            we to hold that the weapon's presence was purely coincidental

            or that any connection between it and the crime of conviction

            was improbable."  United  States v. McDowell, 918  F.2d 1004,
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            1011  (1st Cir. 1990).   Fields carried  the gun  to the drug

            sale only  because Dunbar wanted  protection in the  event of

            violence; had there  been no drug  deal in the offing,  there

            would have  been no gun.   The gun's precise  location in the

            van -- allegedly out of  Fields' immediate reach -- is  of no

            consequence.  The defendant need not be found with his finger

            quivering on the trigger in order to connect the gun with the

            crime.    The  very most  the  courts  require  is sufficient

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proximity to allow  the defendant to  retrieve the gun if  he

            decides to use  it.  See, e.g., United States  v. Armond, 920
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            F.2d 480 (7th  Cir. 1990) (gun  found under driver's seat  of

            truck in  which defendant  was passenger);  United States  v.
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            McDowell, 918 F.2d at 1011 (pistol seized from  vehicle which
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            defendant drove to airport en route to pick up drugs); United
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            States v. Paulk,  917 F.2d 879,  882 (5th Cir. 1990)  (pistol
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            found in fastened  glove compartment  of defendant's car  and

            defendant  was  arrested  "some distance"  from  car); United
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            States v. Heldberg, 907  F.2d 91, 93-94 (9th Cir.  1990) (gun
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            found in briefcase in trunk of defendant's car).

                 Finally,  Fields  challenges  the   sufficiency  of  the

            evidence connecting him to the  second gun (found in Dunbar's

            car).   As  the  gun in  the  van was  enough  to prompt  the

            sentence enhancement, the  issue is moot.   In any event,  we

            think the evidence was adequate to  show that Dunbar's use of

            a gun  was "reasonably foreseeable" to Fields.  United States
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            v. Bianco, 922 F.2d 910, 912 (1st  Cir. 1991).  It is "fairly
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            inferable  that  a codefendant's  possession  of  a dangerous

            weapon is foreseeable  to a defendant with  reason to believe

            that  their  collaborative   criminal  venture  includes   an

            exchange  of  controlled  substances for  a  large  amount of

            cash."    Id.    Once Dunbar  gave  Fields  a  gun to  carry,
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            moreover,  it should  have become  manifestly foreseeable  to

            Fields that Dunbar might carry a gun himself.

                 The  government's  motion  for  summary  disposition  is

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granted.  The motion to dispense with oral argument is moot.

                 Affirmed.       
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