Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 10-1448

                            UNITED STATES,

                               Appellee,

                                    v.

                           WILLIAM HOLMES,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

           [Hon. D. Brock Hornby, U.S. District Judge]


                                 Before

                       Lynch, Chief Judge,
               Boudin and Howard, Circuit Judges.



     Robert C. Andrews on brief for appellant.
     Margaret D. McGaughey, Appellate Chief, and Thomas         E.
Delahanty II, United States Attorney, on brief for appellee.



                             July 7, 2011
          Per Curiam. We have reviewed the record and the parties'

submissions, and we affirm.

          The appellant, William Holmes ("Holmes"), raises a number

of challenges to his sentence.    He first challenges the district

court's conclusion that he possessed a handgun during each of two

drug transactions with a confidential informant ("CI").     He argues

that the evidence presented by the government was unreliable.      We

see no clear error.   The discrepancies as to the date of the second

drug transaction and the caliber of the weapon seized from a drug

partner's apartment may permissibly be viewed as rather minor

discrepancies and were explained by the witnesses:           the date

discrepancy was allegedly due to a typographical error and the

discrepancy with regard to the size of the weapon was explained by

the fact that a .22 caliber weapon and a .25 caliber are similar in

appearance.   There is nothing in the record which would require

this court to question those explanations, and the district court

was in the best position to evaluate whether the witnesses who gave

those explanations were credible.      The CI's alleged offer to leave

town in exchange for $12,000 adversely affected his credibility,

but the court did not rely solely on the CI's claim that Holmes had

a gun with him at each of the two drug transactions.      Rather, the

CI's claim was corroborated by an agent's testimony that the CI was

wearing a wire during both transactions, that she was monitoring

the wire during both transactions, and that she heard Holmes refer


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on the first occasion to the fact that he was carrying a firearm.

The court also listened to the recordings of those controlled

transactions.      The CI's claim that Holmes carried a different

firearm to each of the two transactions was corroborated by the

fact that the CI described the two weapons (a small caliber

derringer and a 9 mm or .45 caliber handgun with a brown wooden

handle), and that weapons matching those descriptions were later

seized from Holmes' co-conspirators.         Thus, we see no clear error

in the court's conclusion that Holmes possessed the handguns.

            We also see no error in the district court's conclusion

that Holmes constructively possessed a shotgun found under his co-

conspirator's bed.     "Constructive possession exists when a person

knowingly has the power and intention at a given time to exercise

dominion and control over an object either directly or through

others."    United States v. McLean, 

, 501 (1st Cir.

2005) (internal quotation marks and citations omitted).              Holmes

pled guilty to illegal possession of shotgun ammunition; that

ammunition was found in Holmes' bedroom; and the ammunition matched

the shotgun found in the other bedroom in his home.            That second

bedroom    was   unlocked,   and   its   occupant,   one   William   Hopkins

("Hopkins"), was apparently Holmes' partner in a drug-dealing

business.    One ounce of cocaine was found in Hopkins' closet along

with a handgun that may have been the same gun that Holmes carried

during one of the two controlled drug transactions.           The district


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court reasonably could have concluded from this evidence that the

two drug partners -- Holmes and Hopkins -- appeared to share ready

access to the entire apartment and that the tools of their trade –

the drugs they sold and the weapons and ammunition used to protect

those drugs – were shared between them and scattered throughout the

apartment.   A small caliber handgun that Holmes carried with him

during the other controlled drug transaction may have been the same

gun later found in an apartment occupied by another drug-dealing

partner, one Michael Pressey ("Pressey"); Holmes was seen routinely

entering this apartment throughout this investigation in order to

retrieve drugs. This is further indication that the three partners

(Holmes, Hopkins and Pressey) all shared access to the tools of

their trade, i.e., the drugs and the guns used to protect those

drugs.   Given all of this, we see no clear error in the district

court's conclusion that Holmes knowingly had the power and the

intent to exercise control over the shotgun.   Thus, we see no error

in the court's conclusion that Holmes had constructive possession

of the shotgun found under Hopkins' bed.   See 

be

some action, some word, or some conduct that links the individual

to the contraband and indicates that he had some stake in it, some

power over it.").

          Finally, Holmes argues that even if he did possess the

two handguns and did constructively possess the shotgun, the

district court erred in imposing an enhancement under U.S.S.G. §


                               -4-
2K2.1(b)(1)(A) for possession of three to seven firearms. He notes

that he was only convicted of illegal possession of ammunition, so

any possession by him of firearms should not have been treated as

relevant conduct.       See U.S.S.G. § 1B1.3(a)(2).        Holmes' possession

of firearms can be considered relevant conduct, and the enhancement

in U.S.S.G. § 2K2.1(b)(1)(A) may be applied, if 1) U.S.S.G. §

3D1.2(d) would require a sentencing court to group any possession

of firearms with his possession of ammunition, had Holmes been

charged additionally with possessing the three guns in question,

and 2) his possession of those three guns was part of the same

course of conduct or common scheme or plan as his possession of the

shotgun ammunition.       See U.S.S.G. § 1B1.3(a)(2).

              The first requirement is met here, as subsection 3D1.2(d)

would have required grouping of any gun possession charges with the

ammunition charge.        See U.S.S.G. § 3D1.2(d) (offenses covered by

U.S.S.G. § 2K2.1 shall be grouped); U.S.S.G. § 2K2.1 (entitled

"Unlawful Receipt, Possession, or Transportation of Firearms or

Ammunition").       The      only    question,    then,   is   whether    Holmes'

possession of the three guns was part of the same course of conduct

or   common    scheme   or    plan    as    his   possession   of   the   shotgun

ammunition.      "The 'same course of conduct' concept ... looks to

whether the defendant repeats the same type of criminal activity

over time.      It does not require that acts be 'connected together'

by common participants or by an overall scheme."               United States v.


                                           -5-
Sanders, 

, 9 (1st Cir. 1992) (internal quotation marks

and citation omitted); see U.S.S.G. § 1B1.3, app. note 9.

           We see no error in the sentencing court's conclusion that

Holmes' possession of the three guns in question and his possession

of ammunition were all part of the same course of conduct.   Holmes'

constructive possession of the shotgun was part of the same course

of conduct as his possession of the matching ammunition for that

gun; after all, the latter generally is not used without the

former.   Holmes argues that there is no evidence that he kept the

shotgun shells in aid of his drug business, but the relevant

question is whether his possession of that shotgun was related to

the crime for which he was convicted, i.e., his possession of the

shotgun ammunition.   Clearly it was.

           We also see no error in the district court's conclusion

that Holmes' possession of the two handguns also was part of the

same course of conduct, i.e., illegal possession of ammunition and

weapons (the shotgun) at his home, in violation of 18 U.S.C. §

922(g).   The CI reported that he had seen both handguns in Holmes'

apartment; he saw the smaller handgun when he met Holmes at the

apartment shortly before the first drug transaction, and he saw the

larger handgun on two occasions (during the second drug transaction

at Holmes' home, and during some previous visit by the CI to the

apartment).    Holmes possessed all three guns, as well as the

ammunition, within a very short time frame:    only one month.   It


                                -6-
appears that Holmes' possession of ammunition and multiple weapons

was all part of a single scheme or plan to run a drug operation out

of his home (in partnership with Hopkins and Pressey) and to

support that operation through the possession of weapons and

ammunition.   This is sufficient.   Holmes contends that possession

of firearms can never be treated as relevant conduct to the offense

of possession of ammunition; but he cites no case law in support of

this suggestion, and the argument is contrary to the plain language

of U.S.S.G. §§ 1B1.3(a)(2) & 3D1.2(d). Finally, Holmes argues that

the court's decision to enhance his sentence on the basis of

uncharged conduct violated his Sixth Amendment rights.        This

argument fails.    See United States v. Zapata, 

, 484

(1st Cir. 2009).

          Affirmed.   See 1st Cir. R. 27.0(c).




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