United States v. Fred Stephen McCaslin

103 F.3d 135 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well. UNITED STATES of America, Appellee, v. Fred Stephen McCASLIN, Appellant. No. 96-2095. United States Court of Appeals, Eighth Circuit. Submitted Oct. 25, 1996. Decided Nov. 6, 1996. Before BOWMAN, MAGILL, and LOKEN, Circuit Judges. PER CURIAM. — 1 — Fred S. McCaslin challenges the sentence imposed by the District Court1 after he pleaded guilty to conspiring to possess methamphetamine with intent to distribute. We affirm. — 2 — According to the presentence report (PSR), a search of McCaslin's and a codefendant's residence uncovered roughly 18.5 grams of methamphetamine and two loaded semiautomatic pistols. McCaslin was "directly connected" to over 31 kilograms of methamphetamine, but the government stipulated that for sentencing purposes, he was accountable for 1 to 3 kilograms. The PSR assessed a two-level increase under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1995), because McCaslin possessed the firearms "in connection with" his drug-trafficking activities. — 3 — In a letter to the probation officer, McCaslin's counsel objected to the section 2D1.1(b)(1) increase, asserting that there was no evidence McCaslin had possessed any firearm during his drug-trafficking activities and that the increase could not be imposed absent evidence that McCaslin had actively used the guns. At sentencing, although counsel briefly mentioned that the guns were never tied to any type of drug deal and that there was not a clear showing of ownership, he primarily argued that under Bailey v. United States, 116 S.Ct. 501 (1995), a defendant had to actively use a gun to be held accountable for it. The District Court concluded Bailey was inapplicable, overruled the objection, and sentenced McCaslin to 262 months imprisonment and five years supervised release. — 4 — McCaslin now contends the District Court erred in assessing the two-level increase, because the government offered no evidence that he possessed the guns in connection with his criminal activity and the Court failed to make a finding on this disputed fact. — 5 — A two-level increase is appropriate if the government proves by a preponderance of the evidence that the defendant possessed a dangerous weapon and it is not clearly improbable the weapon was connected with the offense. See U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) & comment (n.3) (1995); United States v. Betz, 82 F.3d 205, 210 (8th Cir.1996). McCaslin did not dispute that the firearms were found with the drugs at his residence during the period of the conspiracy to which he pleaded guilty. Those undisputed facts were sufficient to support the section 2D1.1(b)(1) increase. See United States v. LaRoche, 83 F.3d 958, 959 (8th Cir.1996) (per curiam) (district court entitled to accept as true factual statements in PSR to which defendant does not object); United States v. Tauil-Hernandez, 88 F.3d 576, 580 (8th Cir.1996) (in conspiracy case, sufficient nexus for § 2D1.1(b)(1) increase established if weapons found in same location as drugs or where part of conspiracy occurred); United States v. Hiveley, 61 F.3d 1358, 1363 (8th Cir.1995) (per curiam) (proof of connection between firearms and criminal activity does not require showing defendant used or touched gun; constructive possession will suffice); see also United States v. Thomas, 93 F.3d 479, 488 n. 5 (8th Cir.1996) (stating that Bailey does not affect application of § 2D1.1(b)(1)). The District Court was not obligated to make a factual finding on the matter McCaslin now raises, because he did not make a clear and specific objection as to that issue. See United States v. Toirac, 917 F.2d 11, 13 (8th Cir.1990). — 6 — Accordingly, the judgment of the District Court is affirmed. Footnotes [1] The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas