                United States Court of Appeals
                    For the First Circuit
                                         

No. 93-1904

                        UNITED STATES,

                          Appellee,

                              v.

                    DOMINGO REYES-MERCADO,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Raymond L. Acosta, U.S. District Judge]
                                                    

                                         

                            Before

                     Selya, Circuit Judge,
                                         
                Bownes, Senior Circuit Judge,
                                            
                  and Stahl, Circuit Judge.
                                          

                                         

Jose A. Fuentes Agostini  with whom Dominguez &amp; Totti was on brief
                                                     
for appellant.
Jorge  E.  Vega-Pacheco, Assistant  United  States  Attorney, with
                       
whom  Guillermo  Gill,  United  States  Attorney,  was  on  brief  for
                 
appellee.

                                         

                        April 28, 1994
                                         

          STAHL, Circuit Judge.   After  being convicted  and
          STAHL, Circuit Judge.
                              

sentenced  on various drug  and firearms  charges, defendant-

appellant  Domingo  Reyes-Mercado  argues that  the  district

court erred in 1) denying his motion to suppress evidence; 2)

determining  that  the  evidence   presented  at  trial   was

sufficient to convict him; and 3) ruling that it had no power

to  credit  him  for  time  served  under  home  confinement.

Finding no error, we affirm.

                              I.
                                

           FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
                                                   

          For  purposes  of  defendant's  challenge   to  the

sufficiency of the evidence,  we review the facts in  a light

most favorable  to the government.  United  States v. Torres-
                                                             

Maldonado, 14 F.3d 95, 98 (1st Cir. 1994).
         

          Sometime   in  mid-June   of  1992   in  Cartagena,

Colombia,  a  confidential government  informant (hereinafter

"CI") working on a  ship was provided with four  kilograms of

cocaine and  instructed to contact defendant  upon the ship's

arrival  in Ponce, Puerto Rico.  On  arrival in Ponce on June

17,  1992, the  CI  telephoned defendant.   With  codefendant

Rolando  Lopez-Maysonet  acting  as   interpreter,  defendant

agreed to  buy four kilograms of  cocaine from the CI.    The

purchase was arranged to  take place that same day,  June 17,

1992, at  a shopping center  phone booth.   Upon  defendant's

arrival  in a  black Nissan  Pathfinder, the  CI  entered the

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vehicle and sold four  kilograms of cocaine to  defendant and

Lopez-Maysonet.   On  a signal  from  the CI,  United  States

Customs  Service   agents  surrounded  the   vehicle,  placed

defendant  and Lopez-Maysonet  under arrest, and  conducted a

search of the Pathfinder's interior.  

          In  the  search,  the  agents  found  two  handbags

containing money,  two cellular telephones, and  one carry-on

bag  containing  four  kilograms  of cocaine.    Pursuant  to

established procedures, United States Customs Agent Jose Ruiz

and Marine Enforcement Officer Radames Sanchez then impounded

the  car  and conducted  an  inventory  search.   During  the

inventory  search of  the vehicle,  the agents  found in  the

glove box a  loaded Ruger pistol  with an obliterated  serial

number.

          On  June 29, 1992, just days  after his arrest, the

district  court  ordered,  inter  alia,  that pending  trial,
                                      

defendant  remain  confined  at  home  wearing  an electronic

surveillance  bracelet.   Shortly  thereafter, defendant  was

charged  in  a five-count  indictment.   Three of  the counts

related  solely to drug violations.  Defendant pled guilty to

these  three  counts.1    The remaining  two  counts  charged

                    

1.  The three  drug counts  stated that defendant  and Lopez-
Maysonet  1) conspired to import  in excess of  4500 grams of
cocaine in violation of 21 U.S.C.    952(a), 960, and 963; 2)
aided  and abetted each other in possessing with an intent to
distribute in excess of 4500 grams of cocaine in violation of
18 U.S.C.    2, and 21  U.S.C.   841(a)(1); and  3) aided and
abetted each other  in the use  of a communication  facility,

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defendant  with  1) carrying  a  firearm in  relation  to the

commission  of a  drug offense  in violation  of 18  U.S.C.  

924(c)(1)2;  and  2)  possession  of a  firearm  having  been

transported in interstate  commerce and whose  manufacturer's

serial number had been obliterated  in violation of 18 U.S.C.

  922(k)3.

          Defendant pled not guilty to both firearms charges.

Prior  to trial, a  suppression hearing  took place  before a

magistrate judge at which defendant argued that the gun found

in  the   inventory  search  should  be   suppressed.    More

                    

i.e., a telephone, for causing or facilitating the possession
with intent to distribute cocaine,  in violation of 18 U.S.C.
  2 and 21 U.S.C.   843(b).

2.   Section 924(c)(1) provides in relevant part:

          Whoever,  during and  in relation  to any
          crime  of  violence  or drug  trafficking
          crime  (including a crime  of violence or
          drug trafficking crime which provides for
          an  enhanced  punishment if  committed by
          the use  of a deadly or  dangerous weapon
          or device) for which he may be prosecuted
          in a court of  the United States, uses or
          carries a firearm, shall, in  addition to
          the punishment provided for such crime or
          violence  or  drug trafficking  crime, be
          sentenced to imprisonment for five years.

3.  Section 922(k) provides in relevant part:

          It shall be unlawful for any person . . .
          to possess  or receive any  firearm which
          has had the importer's  or manufacturer's
          serial  number  removed, obliterated,  or
          altered  and  has,   at  any  time,  been
          shipped or transported  in interstate  or
          foreign commerce.

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specifically, defendant argued that the government's evidence

conflicted  as to whether the gun was first discovered in the

inventory search,  or whether it  had been discovered  at the

scene  of  the  arrest.     Seizing  on  this  inconsistency,

defendant argued that  the gun had, in  fact, been discovered

at  the time of the arrest, and, further, that this discovery

of  the  gun was  unlawful.   The  magistrate  considered the

government's  conflicting evidence,  determined that  the gun

had  been lawfully  discovered in  the inventory  search, and

denied  the motion to suppress.   At trial,  a jury convicted

defendant on both firearms counts, and this appeal followed.

                             II.
                                

                          DISCUSSION
                                    

          Defendant argues  that 1) the lower  court erred in

denying  defendant's  motion  to  suppress the  gun;  2)  the

evidence  presented  at  trial  was  insufficient to  convict

defendant on  the  weapons charges;  and 3)  the lower  court

erred  in determining  that  it had  no  power to  grant  the

appellant  credit  for  the  time  he   had  served  in  home

confinement.  We address these arguments in turn.

A.  Suppression of the Gun
                          

          In   arguing   that  the   gun  should   have  been

suppressed, defendant  begins  by challenging  the  facts  as

found by the magistrate judge at the suppression hearing.  In

essence, defendant argues  that the gun was not discovered in

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                              5

the inventory search,  but rather that  it was discovered  at

the scene  of the arrest in  an unlawful search  of the glove

compartment.  

          Where the lower court judge sits as the factfinder,

we uphold findings of fact unless they are clearly erroneous.

United  States v. Mancini, 8  F.3d 104, 107  (1st Cir. 1993).
                         

Moreover,  where  there  are  two permissible  views  of  the

evidence, the interpretation assigned by the lower court must

be adopted.  Williams v.  Poulos, 11 F.3d 271, 278 (1st  Cir.
                                

1993).

          In   the   instant   case,   Sanchez,   the  Marine

Enforcement  Officer present  at the  arrest, testified  at a

preliminary  detention   hearing  that  the  gun   was  first

discovered at the scene  of the arrest.  Customs  Agent Ruiz,

on  the other  hand,  who was  also  present at  the  arrest,

testified  at the  suppression  hearing that  the weapon  was

seized from the Pathfinder during the inventory  search.  The

magistrate  judge,  apparently  crediting  Ruiz's  testimony,

expressly  found  that the  gun  was first  found  during the

inventory search.   Defendant cites nothing in the  record to

indicate  that  this  credibility determination  was  clearly

erroneous.   Accordingly,  we  find  no  error in  the  lower

court's determination that the  gun was discovered during the

inventory search.  Moreover, defendant concedes the  validity

of  the inventory search.   Cf. United States  v. Zapata, No.
                                                        

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                              6

93-1349, slip. op. at  16 (1st Cir. March 24,  1994) ("Courts

have regularly approved inventory searches of impounded motor

vehicles despite the absence of  probable cause.").  Thus, we

find no  error in the district court's  denial of defendant's

motion to suppress the gun.4

B.  Sufficiency of the Evidence
                               

          When   reviewing  a  sufficiency  of  the  evidence

challenge,  we  examine  the   evidence  in  the  light  most

favorable to  the government  and affirm convictions  where a

rational  juror could  have found  guilt beyond  a reasonable

doubt.  United States  v. Jadusingh, 12 F.3d 1162,  1168 (1st
                                   

Cir. 1994).  

          Under section 924(c)(1),  the government must  show

that  the defendant used one  or more firearms  during and in

relation to  a drug trafficking  offense.   United States  v.
                                                         

Hatfield, 918 F.2d  987, 996 (1st  Cir. 1990), cert.  denied,
                                                            

111  S.  Ct.  2062 (1991).    Use,  as  described in  section

                    

4.  We  note additionally  that  even if  the  gun was  first
discovered  at the scene of  the arrest, the  evidence in the
record before us shows that a search of the glove compartment
incident  to defendant's arrest would have  been lawful.  See
                                                             
New York v. Belton, 453 U.S.  454, 460-61 &amp; n.4 (holding that
                  
after policeman  has made  a lawful  custodial arrest of  the
occupant  of  an automobile,  he  may,  as a  contemporaneous
incident  of  that  arrest,  "examine  the  contents  of  any
containers," including glove  compartments, found within  the
passenger  compartment).    Moreover,  given  that  defendant
concedes  the validity  of the  inventory search,  it appears
that the suppression would  be inappropriate, inasmuch as the
gun  would inevitably  have been  lawfully discovered.   See,
                                                            
e.g.,  Zapata, slip  op. at  15-17 (discussing  generally the
             
doctrine of inevitable discovery).

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                              7

924(c)(1), calls  for something more than  "possession."  See
                                                             

United  States v. McFadden, 13 F.3d 463, 465 (1st Cir. 1994).
                          

While  a   weapon  need  not  be   brandished,  displayed  or

discharged  in order  to sustain  a conviction  under section

924(c)(1), there must be  some facilitative nexus between the

weapon and  the criminal activity.   See Torres-Maldonado, 14
                                                         

F.3d  at 102; United States v. Castro-Lara, 970 F.2d 976, 983
                                          

(1st Cir. 1992), cert. denied, 113 S. Ct. 2935 (1993); United
                                                             

States v. Plummer, 964  F.2d 1251, 1253-55 (1st Cir.),  cert.
                                                             

denied  113 S.  Ct.  350 (1992).    "[A] conviction  will  be
      

sustained under [section 924(c)] if the possessor of a weapon

intended  to have  it available  for possible  use during  or

immediately following  the transaction, or if  it facilitated

the transaction by lending courage to the possessor."  Id. at
                                                          

1254 (quoting United States v. Payero, 888 F.2d 928, 929 (1st
                                     

Cir. 1989)).  "[U]ltimately, whether or not  the gun[] helped

[a defendant] commit the  drug crime is a matter for  a jury,

applying   common-sense   theories   of  human   nature   and

causation."  McFadden, 13 F.3d at  466 (quoting United States
                                                             

v. Wilkinson, 926 F.2d  22, 26 (1st Cir.), cert.  denied, 111
                                                        

S. Ct. 2813 (1991)).

          When  viewed in  the  light most  favorable to  the

government, the  evidence shows that a  reasonable jury could

find beyond a reasonable doubt that defendant used the gun in

connection  with a drug crime  as required by section 924(c).

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                              8

First,  the  Pathfinder belonged  to  and  was registered  to

defendant.   Second, throughout the consummation  of the drug

deal, which took place inside  the Pathfinder, the loaded gun

was located in the glove compartment directly in front of the

passenger seat where defendant was seated.  Finally, the jury

heard ample  testimony from Agent Ruiz  regarding the details

of defendant's involvement in  the cocaine transaction.  This

testimony described  the plan devised in  Colombia to deliver

the cocaine to  defendant in  Ponce, Puerto Rico.   Based  on

this  evidence,  the jury  could  conclude that  the  gun was

present  by design, rather than happenstance, and that it was

used by  defendant in  connection with  the drug  purchase as

required by section 924(c).5

C.     The  Sentencing  Court's  Ability   to  Consider  Home
                                                             
Confinement Toward a Reduction in Sentence
                                          

          Finally,  defendant  contends  that the  sentencing

court erred by  concluding that it had no power  to grant him

credit  for the time he  served under home  confinement.6  We

disagree.

          Under 18 U.S.C.   3585, "[a] defendant will receive

credit  towards the sentence of  imprisonment for any time he

                    

5.  The very evidence supporting defendant's conviction under
section  924(c)  also supports  his conviction  under section
922(k).

6.  The record  reflects that defendant eventually  broke the
conditions  of   his  home   confinement  and  that   he  was
subsequently incarcerated pending trial.

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                              9

has  spent in official custody prior to the date the sentence

commences."   In a  similar case, United  States v. Zackular,
                                                            

945 F.2d  423, 425  (1st Cir.  1991), we  stated, "We  do not

believe  that the  official detention requirement  of section

3585 can be  fulfilled by  home confinement."   Id.   Rather,
                                                  

"the fact that home confinement is included as a condition of

probation,  but  not  as   a  substitute  for  incarceration,

persuasively   indicates   that   Congress  considered   home

confinement not to be the equivalent of immurement, ergo, not

to come within the ambit of `official detention.'"  Id.7
                                                      

          Therefore,  under  the  clear  precedent   of  this

circuit, the  district court  properly concluded that  it did

not  have the power to credit defendant for time served under

home confinement.

                             III.
                                 

                          CONCLUSION
                                    

          For the foregoing  reasons, defendant's  conviction

and sentence are

                    

7.  Since we decided Zackular, the Supreme Court has  held in
                             
United States v. Wilson, 112 S. Ct. 1351 (1992), that, in the
                       
first instance, credit under  section 3585 must be calculated
by the Attorney General.  Id. at 1354.  As far  as the record
                             
before us reflects, no such calculation was requested or made
here.   Despite defendant's failure to exhaust administrative
remedies, we  reaffirm that part of Zackular which holds that
                                            
pretrial  home  confinement  may   not  be  credited   toward
"official detention."  Cf. Fraley v.  United States Bureau of
                                                             
Prisons, 1  F.3d 924, 925-26  (9th Cir.  1993) (holding  that
       
home  confinement   may  not  be   credited  toward  official
detention).

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          Affirmed.
                  

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