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United States v. David W. Dunham, 98-3107 (1999)

Court: Court of Appeals for the Eighth Circuit Number: 98-3107 Visitors: 55
Filed: Sep. 09, 1999
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 98-3107 _ United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * Southern District of Iowa. * David Winslow Dunham, * [UNPUBLISHED] * Appellant. * _ Submitted: August 30, 1999 Filed: September 9, 1999 _ Before BOWMAN, FAGG, and MURPHY, Circuit Judges. _ PER CURIAM. David Winslow Dunham pleaded guilty to conspiring to distribute methamphetamine in violation of 21 U.S.C. § 846 and was sentenc
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                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3107
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the
      v.                                 * Southern District of Iowa.
                                         *
David Winslow Dunham,                    *      [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: August 30, 1999

                                   Filed: September 9, 1999
                                    ___________

Before BOWMAN, FAGG, and MURPHY, Circuit Judges.
                          ___________

PER CURIAM.

      David Winslow Dunham pleaded guilty to conspiring to distribute
methamphetamine in violation of 21 U.S.C. § 846 and was sentenced by the District
Court1 to eighty-eight months in prison. Dunham argues on appeal that the District
Court erred in assigning a two-level increase under United States Sentencing
Guidelines § 2D1.1(b)(1) for possession of a firearm in connection with a drug offense.
We review for clear error the District Court's determination that the weapon in question

      1
        The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
was sufficiently connected to the drug offense for which Dunham was convicted. See
United States v. Betz, 
82 F.3d 205
, 210 (8th Cir. 1996).

       Dunham first argues that the assignment of the § 2D1.1(b)(1) sentencing
enhancement was erroneous because the Government failed to prove the elements of
18 U.S.C. § 924(c)(1). Dunham's assertion is without merit. Section 924(c)(1)
establishes statutory minimum sentences for the offense committed by a person who,
"during and in relation to any . . . drug trafficking crime . . ., uses or carries a firearm."
18 U.S.C. § 924(c)(1) (1994); see also Bailey v. United States, 
516 U.S. 137
, 150
(1995). Section 2D1.1(b)(1), by contrast, does not require that a defendant use or carry
a firearm; it requires only that "a dangerous weapon (including a firearm) was
possessed." U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1998). Section
924(c)(1) and § 2D1.1(b)(1) differ, and the strictures of § 924(c)(1), Dunham not
having been convicted under that section, are of no moment in this case. See United
States v. Regans, 
125 F.3d 685
, 686 n.2 (8th Cir. 1997) (stating that the Supreme
Court's construction of § 924(c)(1) in Bailey does not control the application of
§ 2D1.1(b)(1)), cert. denied, 
118 S. Ct. 1398
(1998); 
Betz, 82 F.3d at 210
n.3 (same).

       For the § 2D1.1(b)(1) enhancement to apply, the Government need only show
by a preponderance of the evidence that "'the weapon was present, and . . . that it was
not clearly improbable that the weapon had a nexus with the criminal activity.'" Brown
v. United States, 
169 F.3d 531
, 532 (8th Cir. 1999) (quoting United States v. Bost, 
968 F.2d 729
, 732 (8th Cir. 1992)). The Government met this standard by presenting
testimony at Dunham's sentencing hearing that weapons were present during the
methamphetamine conspiracy and that Dunham and other conspirators possessed
firearms as a matter of course while conducting drug transactions.

      Dunham challenges the testimony presented by the Government, however, on the
basis that it was unreliable and therefore could not support the District Court's
assignment of the § 2D1.1(b)(1) sentencing enhancement. The District Court's findings

                                             -2-
of fact at sentencing are reviewed for clear error, and because the District Court "is best
able to assess the value of testimony[,] . . . its findings regarding witness credibility are
. . . given great deference and are virtually unreviewable on appeal." United States v.
Johnson, 
169 F.3d 1092
, 1098 (8th Cir. 1999) (internal quotations omitted). The
District Court acknowledged several inconsistencies in the testimony of the
Government's witnesses that were brought out by Dunham's counsel on cross-
examination. The court then made specific credibility findings in light of all the
evidence, and found that the testimony regarding the possession of firearms by Dunham
and his co-conspirators in connection with the conspiracy was sufficiently reliable for
purposes of § 2D1.1(b)(1). Giving the District Court's credibility findings the great
deference to which they are entitled, we hold that the District Court did not clearly err
in assigning Dunham the § 2D1.1(b)(1) sentencing enhancement.

       Dunham's sentence is affirmed.

       A true copy.

              Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                            -3-

Source:  CourtListener

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