United States v. McKinnon

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 22, 1997
• Docket: 97-6098
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 22 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-6098 (D.C. No. CR-96-134-R) JACK MCKINNON, JR., (W.D. Okla.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before ANDERSON, MCKAY, and LUCERO, Circuit Judges.

Defendant appeals from the district court’s imposition of a four-level

enhancement on his criminal sentence because he possessed a firearm “. . . in

connection with another felony offense; or possessed . . . any firearm . . . with

knowledge, intent, or reason to believe that it would be used or possessed in

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. connection with another felony offense.” 1 U.S.S.G. § 2K2.1(b)(5). We have

jurisdiction under 18 U.S.C. § 3742(a)(2), and affirm.

On November 9, 1995, Oklahoma City police received a tip that an Eddie

Lykins was interested in buying methamphetamine. In response to the tip, the

police set up a controlled buy of one-half ounce of methamphetamine for

$1,000.00. When defendant arrived with Eddie Lykins at the prearranged meeting

place, an undercover officer showed the men a plastic bag containing one-half

ounce of methamphetamine. Defendant put $1,000.00 in cash on the table, and

asked to sample the drug. The undercover officer refused, and defendant put his

money back in his pocket and started to leave. The police then arrested

defendant. As they did so, the defendant reached toward his waistband, as if

reaching for a gun. After defendant was under arrest, police found a .380 caliber

pistol in his pants. Compatible ammunition, a small amount of methamphetamine,

and drug paraphernalia were found in his car.

Defendant entered into a plea agreement pursuant to which he pleaded

guilty to one count of possession of a firearm and ammunition after prior

conviction of a felony. At sentencing, the district court found that defendant had

1 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. The case is therefore ordered submitted without oral argument.

-2- attempted to possess methamphetamine with intent to distribute the drug, and

possessed a firearm with reason to believe that a felony was about to be

committed. As a result, the court applied the four-level enhancement of U.S.S.G.

§ 2K2.1(b)(5) in calculating defendant’s sentence.

On appeal, defendant argues that: (1) he made no substantial step toward

the purchase of methamphetamine and, therefore, there is a lack of an “attempt

crime” and of a felony offense within the meaning of § 2K2.1(b)(5); and (2) there

is no evidence that he possessed a firearm in connection with the failed purchase.

These objections are timely raised and we thus review the “district court’s factual

findings for clear error, and we review its legal interpretation of the guidelines de

novo.” United States v. Norman, Nos. 96-1342, 96-1359, 1997 WL 735338, at *4

(10th Cir. Nov. 28, 1997).

We agree with the district court that defendant made a substantial step

toward the purchase of methamphetamine when he produced the required amount

of money in response to the undercover officer’s production of the drug. The

district court therefore did not err in finding that defendant “attempted to possess

with intent to distribute methamphetamine,” a felony offense within the meaning

of U.S.S.G. § 2K2.1(b)(5). Defendant’s reliance on United States v. Joyce, 693

F.2d 838, 840-42 (8th Cir. 1982), is misplaced, as the defendant in that case

refused to produce any money with which to complete the drug transaction.

-3- We also agree with the district court’s finding that defendant possessed a

firearm with reason to believe that it would be used or possessed in connection

with another felony. See R. Vol. II at 27; see also U.S.S.G. 2K2.1(b)(5). The

firearm, though apparently unloaded, was hidden in defendant’s pants, and he

reached for it when agents first attempted to place him under arrest. See United

States v. Gomez-Arrellano, 5 F.3d 464, 467 (10th Cir. 1993) (holding “[a]

weapon’s physical proximity to narcotics may be sufficient to provide the nexus

required between the weapon and the drug charges”).

AFFIRMED.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge

-4-