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February 26, 1992 [NOT FOR PUBLICATION]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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