
USCA1 Opinion

	




          February 26, 1992     [NOT FOR PUBLICATION]                                 ___________________          No. 91-1910                                                UNITED STATES,                                      Appellee,                                          v.                                  MICHAEL J. FIELDS,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ___________________               Robert  R.  Bennett on  brief  and Objection  To  Motion For               ___________________          Summary Disposition for appellant.               Jeffrey  R.  Howard, United  States  Attorney, and  Peter E.               ___________________                                 ________          Papps, First Assistant U.S. Attorney, on Memorandum In Support Of          _____          Motion For Summary Disposition for appellee.                                  __________________                                 __________________                  Per Curiam.  The appellant, Michael Fields, was arrested                 __________            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.                                          2                 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)            _____________     ________            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            ________            in United States  v. Brady,  928 F.2d 844,  850-52 (9th  Cir.               _____________     _____            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.            ________                 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                           _____________    _____                                        ____________________               1 See, e.g.,  United States v. Coleman, 947  F.2d 1424 (10th                 _________   _____________    _______          Cir. 1991);  United States  v. Manor, 936  F.2d 1238,  1243 (11th                       _____________     _____          Cir. 1991);  United States  v. Lawrence, 934  F.2d 868  (7th Cir.                       _____________     ________          1991);  United States  v. Duncan,  918  F.2d 647,  652 (6th  Cir.                  _____________     ______          1990); United States v. Rodriguez-Gonzalez, 899 F.2d 177 (2d Cir.                 _____________    __________________          1990);  United States  v. Dawn,  897 F.2d  1444 (8th  Cir. 1990);                  _____________     ____          United  States v.  Isom, 886  F.2d  736 (4th  Cir. 1989);  United          ______________     ____                                    ______          States v.  Juarez-Ortega, 866  F.2d 747  (5th Cir.  1989); United          ______     _____________                                   ______          States v. Ryan, 866 F.2d 604 (3d Cir. 1989).          ______    ____                                          3            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,                              ______________    ________            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                                          4            proximity to allow  the defendant to  retrieve the gun if  he            decides to use  it.  See, e.g., United States  v. Armond, 920                                 _________  _____________     ______            F.2d 480 (7th  Cir. 1990) (gun  found under driver's seat  of            truck in  which defendant  was passenger);  United States  v.                                                        _____________            McDowell, 918 F.2d at 1011 (pistol seized from  vehicle which            ________            defendant drove to airport en route to pick up drugs); United                                                                   ______            States v. Paulk,  917 F.2d 879,  882 (5th Cir. 1990)  (pistol            ______    _____            found in fastened  glove compartment  of defendant's car  and            defendant  was  arrested  "some distance"  from  car); United                                                                   ______            States v. Heldberg, 907  F.2d 91, 93-94 (9th Cir.  1990) (gun            ______    ________            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                                                            _____________            v. Bianco, 922 F.2d 910, 912 (1st  Cir. 1991).  It is "fairly               ______            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,                      ___            moreover,  it should  have become  manifestly foreseeable  to            Fields that Dunbar might carry a gun himself.                 The  government's  motion  for  summary  disposition  is                                          5            granted.  The motion to dispense with oral argument is moot.                 Affirmed.                        ________                                          6
