United States v. Johnson

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 2 1998 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 97-2178 v. (D.C. No. 95-CR-23-LH) (District of New Mexico) ADRIAN LARON JOHNSON,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before ANDERSON, McKAY and LUCERO, Circuit Judges.

Pursuant to a plea agreement, Adrian Johnson pleaded guilty to conspiracy

to possess with intent to distribute more than five grams of a substance containing

cocaine base, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and possession

with intent to distribute of a substance containing cocaine base within 1,000 feet

of a school, in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2. At sentencing,

the district court imposed a two-level enhancement under U.S.S.G. § 2D1.1(b)(1)

* The case is unanimously ordered submitted without oral argument pursuant to Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. for possession of a firearm during a drug trafficking offense. Johnson appeals,

contending that this enhancement was erroneous.

On December 19, 1994, undercover agent Michael Pelligrini of the Drug

Enforcement Administration Metropolitan Task Force met with Johnson at

Johnson’s home to negotiate the purchase of crack cocaine. The actual

transaction took place at a nearby fast-food restaurant. Agent Pelligrini handed

approximately $1,200 to Johnson; Johnson then pointed to the location of a brown

paper bag. It was later determined that the bag contained 27 net grams of crack

cocaine.

Agent Pelligrini subsequently obtained a search warrant for Johnson’s home

which was executed on December 22 by the DEA and the Bernalillo County

Sheriff’s Department. During a search of the residence, the officers discovered

18.33 net grams of crack cocaine, scales, $1,021 in cash, and written notes and

instructions related to narcotics sales. The officers also found a 12 gauge sawed-

off shotgun, fully-loaded with the safety disengaged, and a .380 caliber semi-

automatic pistol, fully-loaded with a round of ammunition chambered. Both

weapons were in the living room, and Johnson’s fingerprints were found on the

sawed-off shotgun. During the search, Johnson and a companion returned home.

Both men were detained. A search of their vehicle revealed a 9mm Taurus semi-

automatic pistol also with a round of ammunition chambered.

-2- At the sentencing hearing following his guilty plea, Johnson objected to the

proposed two-level increase under § 2D1.1(b)(1). In response, the government

submitted an affidavit prepared by Agent Pelligrini detailing his investigation and

listing the items found in Johnson’s residence. Adopting the factual findings in

the pre-sentence report, the district court overruled Johnson’s objections and

enhanced his sentence. We review the district court’s factual determinations for

clear error. See United States v. Robertson, 45 F.3d 1423, 1449 (10th Cir. 1995)

To sustain an enhancement under § 2D1.1(b)(1), the government must

prove by a preponderance of the evidence “that a temporal and spatial relation

existed between the weapon, the drug trafficking activity, and the defendant.”

United States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993) (quoting United

States v. Eastland, 989 F.2d 760, 770 (5th Cir. 1993)). “Generally, the

government must provide evidence that the weapon was found in the same

location where drugs or drug paraphernalia are stored or where part of the

transaction occurred.” Id. at 983 (quoting United States v. Hooten, 942 F.2d 878,

882 (5th Cir. 1991)). If the government meets its burden, the defendant must

show that it is “clearly improbable” that the weapon was related to the offense.

See Robertson, 45 F.3d at 1449; see also U.S.S.G. § 2D1.1, comment. (n.3) (“The

adjustment should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.”).

-3- The evidence presented by the government indicated that loaded weapons,

drugs, a large quantity of money and drug paraphernalia were found in Johnson’s

home. One of the firearms had Johnson’s fingerprints on it. Additionally, the

first meeting between Agent Pelligrini and Johnson took place at Johnson’s home.

We therefore find no error in the district court’s conclusion that the government

met its burden of showing the relationship between the weapon, the offense and

the defendant by a preponderance of the evidence.

The defendant argues that the government presented no evidence that he

had possession of the guns, given that there were other occupants of the

residence. He also contends that because Agent Pelligrini’s affidavit failed to

state sufficient information as to the spatial proximity of the weapons to the

drugs, the district court’s sentencing decision was erroneous. We are

unpersuaded that these arguments are sufficient to establish that it was “clearly

improbable” that the weapons were connected to drug trafficking.

Based on the evidence, the district court judge was not clearly erroneous in

enhancing Johnson’s sentence. AFFIRMED.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge

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