                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4415
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Missouri.
David Lee Willie,                       *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: June 12, 2006
                                 Filed: September 11, 2006
                                  ___________

Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

      David Lee Willie appeals the judgment and sentence of the district court1
following his conviction for possessing pseudoephedrine while knowing or having
reasonable cause to believe that it would be used to manufacture a controlled
substance under 21 U.S.C. § 841(c)(2). Following Willie’s conviction, the district
court determined Willie’s base offense level under the advisory United States
Sentencing Guidelines (USSG). It then applied a two-level enhancement for


      1
       The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
possessing a firearm in connection with the offense because police discovered rifles
in Willie’s motel room, in close proximity to the pseudoephedrine at issue. The court
thereafter issued a non-Guidelines sentence that represented a downward variance
from the resulting Guidelines range.

       Willie makes three arguments on appeal: (1) the search of the motel room where
the pseudoephedrine was found was unlawful under the Fourth Amendment, (2) the
presence of two other people in the motel room rendered the evidence of knowing
drug possession too ambiguous to support his conviction, and (3) there was
insufficient evidence connecting the firearms to his offense. We affirm.

                                I. BACKGROUND

       Around 4:00 on the morning of June 10, 2003, Eureka, Missouri, Police
Department Officer William Knittel stopped to investigate an illegally-parked vehicle
in the fire lane of the local Super 8 Motel. The owner of the car, David Lee Willie,
was loading boxes into the vehicle when Knittel first observed him. Knittel quickly
recognized Willie as a local resident and asked why he was loading boxes at a motel
at such an early hour, particularly because Willie had a home in the area. Willie
claimed that he and his wife were separating, and he was loading boxes to return to
her. When Knittel asked where his wife was located, Willie claimed he did not know
where to find her. During this exchange, Knittel also observed symptoms of
methamphetamine use or production, including sores on Willie’s face, the smell of
anhydrous ammonia, and Willie’s inability to stand still.

      As Knittel was writing Willie a citation for illegal parking, Officer Michael
Smith arrived as back-up. Smith noticed a knife in Willie’s pocket and, upon
receiving Willie’s consent, removed the knife. Smith also noticed and removed a cut
straw from the pocket. The straw had a white residue on it that field-tested positive



                                         -2-
for methamphetamine. Smith arrested, handcuffed, and placed Willie in the back of
Knittel’s squad car, but did not read him his Miranda2 rights at that time.

      Upon questioning, Willie said he was staying with two other people in room
124 of the motel. Knittel knocked at the door to room 124, met briefly with the two
occupants, and then re-joined Smith to conduct an inventory search of Willie’s car.
That search uncovered significant evidence of drug use and trafficking. Among other
items, Officers Knittel and Smith found: plastic bags of marijuana and
methamphetamine; a digital scale; residue-laden straws, razor blades, and pen shafts;
a water pipe or “bong”; a sheet of paper listing names, dates, monetary amounts, and
drug references; a reference guide to over-the-counter medications; a printout from
an online drug chemistry newsgroup; and nearly $15,000 in cash. Later on, a more
thorough search of the car at the impoundment lot revealed plastic funnels, a gas
mask, and another piece of paper with names, telephone numbers, and monetary
amounts. At a pretrial evidentiary hearing, Knittel testified that he also found a tan
lockbox during the initial inventory search and asked Willie if he would unlock it, but
Willie refused consent.

      Sergeant Jason Randall arrived on the scene during the inventory search and
asked for Willie’s consent to search the motel room. Willie gave his consent to the
search, and Randall and Smith proceeded to search room 124. In it, they saw
numerous boxes stacked along the walls of the room, several rifles that Smith believed
he recognized from an unrelated visit to Willie’s home a few weeks before, and two
duffel bags on the floor. The two remaining occupants of the room disclaimed
ownership of any of the items other than a small pile of clothing.

      The officers seized the duffel bags but left the rifles, which Smith assumed to
be unloaded. One duffel bag contained more than 13,000 pseudoephedrine pills, a


      2
       Miranda v. Arizona, 384 U.S. 436 (1966).

                                         -3-
chemical used in the production of methamphetamine. The other bag contained
equipment that could be used to manufacture methamphetamine. Later that day,
Knittel received confirmation from the motel that room 124 was registered to Willie.

       A grand jury indicted Willie for possession of pseudoephedrine with knowledge
or reasonable cause to believe that it would be used to manufacture a controlled
substance under 21 U.S.C. § 841(c)(2). The district court denied Willie’s motion to
suppress the evidence gathered from the motel room. Willie proceeded to trial and a
jury found him guilty.

       At the sentencing hearing, the district court determined Willie’s Guidelines
range. The court found that Willie had zero criminal history points and a base offense
level of thirty-four (carrying a Guidelines sentencing range of 151 to 188 months).
Over Willie’s objection, the court also applied a two-level enhancement pursuant to
Guidelines section 2D1.1(b)(1) for possessing firearms in connection with the offense,
for a total offense level of thirty-six (carrying a Guidelines sentencing range of 188
to 235 months). The district court then varied from the Guidelines and imposed a
sentence of 135 months.

                                 II. DISCUSSION

      A.     Willie’s Consent to Search the Motel Room

       First, Willie contends that the search of his motel room was unlawful under the
Fourth Amendment because his consent to the search was given involuntarily. In
particular, he points out that he was under arrest when Officer Randall asked for his
consent, he had not received any Miranda warnings at that time, and he was visibly
intoxicated from methamphetamine use, all of which served to vitiate his purported
consent to the search.



                                         -4-
       The government bears the burden of proving voluntary consent to a search by
a preponderance of the evidence, United States v. Czeck, 105 F.3d 1235, 1239 (8th
Cir. 1997), and we review a district court’s finding of voluntary consent under a clear
error standard. United States v. Siwek, 453 F.3d 1079, 1083 (8th Cir. 2006); United
States v. Mancias, 350 F.3d 800, 804 (8th Cir. 2003). The question of voluntariness
requires a broad factual inquiry; there is no bright-line rule to determine when an
“‘essentially free and unconstrained choice,’” Schneckloth v. Bustamonte, 412 U.S.
218, 225 (1973) (quotation omitted), becomes one that is “the result of duress or
coercion.” Id. at 248. Instead, we consider the “totality of all the circumstances.” Id.
at 227.

       Our case law offers a catalogue of factors to consider in judging the
voluntariness of a defendant’s consent to search. Some relate to the characteristics
and behavior of the defendant, such as the defendant’s age, intelligence and education,
knowledge of his constitutional rights (whether from Miranda warnings in the
encounter at issue or from previous interactions with police), whether he was under
the influence of drugs or alcohol, and whether he objected to the search or stood by
silently as it was occurring. United States v. Chaidez, 906 F.2d 377, 381 (8th Cir.
1990). Others relate to the environment surrounding the defendant at the time he gave
his consent, such as whether he was in custody or under arrest and whether he was in
a public or secluded place. Id. Still others relate to the interaction between police and
the defendant in the encounter, such as whether police officers detained and
questioned the defendant for a long time before obtaining his consent, whether they
threatened, physically intimidated, or punished him, and whether they made promises
or misrepresentations upon which the defendant relied in giving his consent. Id. No
one factor is dispositive; they are merely tools for analyzing the “totality of all the
circumstances.” Bustamonte, 412 U.S. at 227.

      While some of these factors weigh against voluntariness in this case, we cannot
say that the district court clearly erred in its determination of the ultimate question:

                                          -5-
whether Willie’s “‘will ha[d] been overborne and his capacity for self-determination
critically impaired’” such that his consent to the search of his motel room was
involuntary. United States v. Watson, 423 U.S. 411, 424 (1976) (alteration in
original) (quoting Bustamonte, 412 U.S. at 225). Willie was forty-eight years old at
the time of his arrest. He was a high school dropout, but he possessed the aptitude to
operate his own extermination business from 1989 to 2002. He may have been under
the influence of methamphetamine at the time of his arrest, but the evidence does not
suggest that he was so intoxicated that he was not “competent to understand the nature
of his acts.” United States v. Rambo, 789 F.2d 1289, 1297 (8th Cir. 1986). He
generally cooperated with police, responded to their questioning, and knew the
number of the motel room where he was registered. We cannot presume (as Willie
would have us do) that his inability to offer the police a convincing explanation of his
activities that morning is proof positive that he lacked the mental capacity to consent
to the search.

       It is also true that police had not issued Willie Miranda warnings before he
consented to the search, but that fact—like the other factors above—is not
determinative of the question of voluntariness. See Bustamonte, 412 U.S. at 246-49;
United States v. Lee, 356 F.3d 831, 834 (8th Cir. 2003) (“Miranda warnings . . . are
not required for consent to a search to be voluntary, although they can lessen the
probability that a defendant was subtly coerced.”). Furthermore, even without the
warnings, there is evidence that Willie was aware of his constitutional rights. His
prior consent to the search of his pockets and his refusal to consent to a search of the
tan lockbox, coupled with the fact that Officer Knittel honored this refusal, suggest
that Willie understood both the consequences of granting consent and his right to
refuse it.

       Willie also offers no evidence of police intimidation or misrepresentation, nor
of an environment that would give rise to a presumption of involuntary choice. Willie
was under arrest and handcuffed at the time he gave his consent, but he had not been

                                          -6-
subjected to extended questioning and had only been under arrest for, at most, the time
that it took officers to meet briefly with the fellow occupants of room 124 and
complete an inventory search of his vehicle. In addition, he was in a public place (the
motel parking lot) at all times leading up to his grant of consent. See Watson, 423
U.S. at 424 (finding valid consent despite a defendant’s arrest when the consent was
given in a public setting and there was no evidence of coercive police tactics). In
short, the totality of the circumstances does not suggest that Willie’s consent was
anything other than a free choice, and the district court did not err in so finding.

      B. Sufficiency of the Evidence

       Second, Willie claims that the government failed to meet its burden of proving
that the pills in the motel room were in his possession because two other people were
present in the room when police arrived. Our review of claims of insufficient
evidence is “very strict,” United States v. Spencer, 439 F.3d 905, 913 (8th Cir. 2006)
(quotation omitted), as we “view the evidence in the light most favorable to the
government, resolving evidentiary conflicts in favor of the government, and accepting
all reasonable inferences drawn from the evidence that support the jury’s verdict.”
United States v. Blazek, 431 F.3d 1104, 1107 (8th Cir. 2005) (quotation omitted). We
will reverse only if no reasonable jury could have found Willie guilty. United States
v. Walker, 393 F.3d 842, 846 (8th Cir. 2005).

       Here, a reasonable jury had more than enough evidence to conclude that Willie
possessed the pseudoephedrine pills in question. The motel room where they were
found was registered in his name, and he told officers that it was his room. The
combination of the pills and meth lab equipment found in Willie’s room with the
narcotics, paraphernalia, and large amounts of cash in Willie’s car, as well as the
visible signs of Willie’s own drug use, points to his possessory interest in the pills.
Given these clear connections between Willie, the motel room, and the pills within it,



                                         -7-
a rational juror could certainly conclude beyond a reasonable doubt that Willie
possessed the pseudoephedrine.

       C. Application of the Sentencing Guidelines

       Finally, Willie argues that the district court erred in enhancing his base offense
by two levels under USSG section 2D1.1(b)(1) for possessing “dangerous weapon[s],”
specifically the rifles in the motel room.3 Willie contends that the facts made it
“clearly improbable that the weapon[s] w[ere] connected with the offense,” an
exception enunciated in the commentary to section 2D1.1(b)(1). See USSG §2D1.1,
comment. (n.3). “We review the district court’s findings of fact for clear error and its
application of the Sentencing Guidelines de novo.” United States v. Burling, 420 F.3d
745, 749 (8th Cir. 2005) (citation omitted).

       Willie correctly points out that “[t]he mere presence of a firearm is an
insufficient predicate for a [section] 2D1.1(b)(1) enhancement” and that the weapon
“must be connected with the criminal activity before its possession can be used to
enhance the defendant’s sentence.” United States v. Savage, 414 F.3d 964, 966 (8th

       3
         Given the fact that the district court sentenced Willie to 135 months in
prison—well below both his base level and enhanced sentencing ranges under the
Guidelines—it is possible that this alleged error is harmless. See United States v.
Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005) (noting that “there may be situations
where an error in calculating the appropriate guidelines range is harmless and,
therefore, does not require immediate remand,” such as “where the resulting sentence
lies in the overlap between the correct and incorrect guidelines ranges” and “it is clear
that the sentencing court would have imposed the same sentence regardless of whether
the appellant’s argument for a lower guideline range ultimately prevailed”) (quotation
omitted). Here, Willie’s sentence is below the sentencing range that he asserts as
correct, and there is little evidence from the sentencing transcript that the district court
would have given a lesser sentence had it not applied the enhancement. Nevertheless,
because we find that the district court did not err in enhancing Willie’s Guidelines
range, we need not apply “harmless error” analysis to decide this issue.

                                            -8-
Cir. 2005). But Willie fails to appreciate the breadth of the word “connected” in this
context. The weapon need not be in the defendant’s actual possession at the time he
committed the crime. Constructive possession will suffice, United States v. Dillard,
370 F.3d 800, 804 (8th Cir. 2004), particularly if the weapon is “readily accessible”
at the place where the defendant commits the crime. Savage, 414 F.3d at 967. In
short, the government need only show a “temporal and spatial nexus among the
weapon[s], defendant, and drug-trafficking activity.” United States v. Torres, 409
F.3d 1000, 1003 (8th Cir. 2005).

       This broad definition of “connected” within the context of section 2D1.1(b)(1)
necessarily limits the scope of the term “clearly improbable,” and that exception is
consequently too narrow to apply in this case. While the evidence shows that Willie
seemed to be living out of his car and the motel room, this case is not analogous to one
where “the defendant, arrested at his residence, had an unloaded hunting rifle in the
closet.” USSG §2D1.1 comment. (n.3). Rather, this is a case where the defendant
possessed several rifles in a motel room, possibly loaded,4 mere feet from a very large
quantity of pseudoephedrine and other materials used for manufacturing
methamphetamine. That the rifles apparently caused little concern for police officers
on the scene does not change the fact that they were dangerous weapons and would
have been easily accessible to Willie when he was in the room.5 The mere fact that
Willie was arrested outside the motel room does not overcome other evidence
connecting him to the rifles: the room was registered in his name, he apparently
owned the rifles therein, and he was in the process of moving items between the room

      4
       The only evidence that the guns were unloaded came from the testimony of
Officer Smith, who stated on cross-examination that he believed they were unloaded.
The police did not seize the rifles, and there is no other evidence as to whether they
were loaded or not.
      5
      Police officers testified that they saw the guns between one of the beds and a
wall when they first walked into the motel room. They found the duffle bags of
pseudoephedrine near the foot of the same bed.

                                          -9-
and his car when confronted by police. Under these circumstances, his
possession—actual or constructive—of the rifles is clear.

       We note that it is possible on these facts that Willie was moving all of his
possessions into the motel room, that his storage of the rifles there was merely
incidental to his drug operation, and that he used those rifles solely for hunting. But
given the large quantity of pills at issue and their close proximity to the rifles, we
cannot say that it is “clearly improbable” that the rifles instead operated as “tools of
the drug trade providing protection and intimidation.” United States v. Hallam, 407
F.3d 942, 949 (8th Cir. 2005) (quoting United States v. Linson, 276 F.3d 1017, 1019
(8th Cir. 2002)); see also United States v. Behler, 187 F.3d 772, 777-78 (8th Cir.
1999) (finding that a defendant’s claim that a weapon was used for hunting was
irrelevant for section 2D1.1(b)(1) purposes when the defendant carried that weapon
while committing narcotics offenses). Therefore, the district court did not err in
enhancing Willie’s Guidelines range due to the presence of the rifles, and we affirm
the sentence of the district court.

                                  III. CONCLUSION

         For the foregoing reasons, we affirm the judgment and sentence of the district
court.
                         ______________________________




                                          -10-
