United States v. Lang, S.

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 8, 1997
• Docket: 96-3303
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 8 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. Nos. 96-3303 & 96-3304 (D.C. Nos. 94-CR-10121-1 SOUPHAPHONE LANG and & 94-CR-10121-2) DOUANGMALA LANG, (D. Kan.)

Defendants-Appellants.

ORDER AND JUDGMENT *

Before TACHA, MCKAY, and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. These cases are

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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Defendants Souphaphone and Douangmala Lang appeal the district court’s

judgment following this court’s remand for resentencing on separate drug

trafficking convictions. On appeal, 1 they raise a single issue, a challenge to the

district court’s application of a two level enhancement to their sentences pursuant

to USSG § 2D1.1(b)(1) for possession of a firearm. Our jurisdiction over these

appeals arises from 28 U.S.C. § 1291. We review de novo the district court’s

legal interpretation of the Sentencing Guidelines, and review for clear error that

court’s factual determinations at sentencing. See United States v. Johnson, 42

F.3d 1312, 1320 (10th Cir. 1994). The underlying facts supporting defendants’

convictions are set out in United States v. Lang, 81 F.3d 955 (10th Cir. 1996).

The sentencing enhancement set out in § 2D1.1(b)(1) “reflects the

increased danger of violence when drug traffickers possess weapons.” United

States v. Contreras, 59 F.3d 1038, 1040 (10th Cir. 1995). Applicability of the

enhancement can be established “if the government proves 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) (quotation omitted). Once the government meets its

burden, the defendant has the burden to demonstrate “that the increase should not

1 These cases were filed separately. They are joined for purposes of disposition only.

-2- apply because it is ‘clearly improbable’ that the gun was connected to the

offense.” Contreras, 59 F.3d at 1040.

Defendants here neither testified nor presented evidence at their hearing on

resentencing. They contend that the government did not meet its burden at

resentencing because 1) their arrest and the seizure of the drugs did not occur in

the trailer where the weapon was located, 2) although a small amount of drugs

was seized from the trailer, no other evidence of drug trafficking, such as books,

scales, or paraphernalia, was found in the trailer, 3) no drug buys had been

observed occurring at the trailer, 4) there was no testimony that either of them

had touched the weapon, and 5) the weapon was purchased for personal protection

only. Douangmala Lang asserts that he did not live at the trailer, had been there

but a short time before the arrest, and was not aware of the location of the

weapon. Souphaphone Lang asserts that the gun did not belong to him, but to his

brother, Douangmala. Defendants also take issue with the district court’s

comments that the weapon was not a hunting weapon. See Application Note 3 to

USSG § 2D1.1(b)(1) (“The adjustment should be applied if the weapon was

present, unless it is clearly improbable that the weapon was connected with the

offense. For example, the enhancement would not be applied if the defendant,

arrested at his residence, had an unloaded hunting rifle in the closet.”). They

-3- contend that the district court relied on its own “testimony,” in violation of their

Sixth Amendment rights to confront witnesses.

None of these arguments is persuasive under the facts of this case. We

agree with the district court that the government met its burden at resentencing to

demonstrate temporal and spatial proximity of the weapon, the illegal activity and

the defendants. The drugs were taken from the trailer where the weapon was

located; drugs were also found at the trailer; the weapon was loaded and found

under the couch in the living room of the trailer. The government was not

required to prove that drug buys occurred at the trailer, see Contreras, 59 F.3d at

1039 (drugs merely stored at defendant’s home); Roederer, 11 F.3d at 983

(evidence must show only that weapon was found where drugs were stored or

where part of transaction occurred). The Langs both knew the gun was present at

the trailer, and either owned or controlled it, see United States v. Payne, 81 F.3d

759, 762 (8th Cir. 1996) (constructive possession, i.e. ownership, dominion or

control, is sufficient to support enhancement under § 2D1.1(b)(1)). Under these

facts, the district court’s conclusion was not clearly erroneous, see Contreras, 59

F.3d at 1040.

Finally, the district court did not rely on its own “testimony” about the

nature of the weapon to support its conclusion. The government met its burden

on resentencing; defendants failed to demonstrate that it was “clearly improbable”

-4- that the weapon was connected to the offense. The district court’s comments

about the applicability of the exception noted in Application Note 3 to USSG

§ 2D1.1(b)(1) did not violate defendants’ Sixth Amendment rights.

The judgment of the United States District Court for the District of Kansas

is AFFIRMED.

Entered for the Court

Monroe G. McKay Senior Circuit Judge

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