                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 07-1623
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                  v.

ALOWONLE IDOWU,
                                               Defendant-Appellant.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 05 CR 1000—Ronald A. Guzmán, Judge.
                          ____________
     ARGUED DECEMBER 6, 2007—DECIDED APRIL 1, 2008
                          ____________


  Before EASTERBROOK, Chief Judge, and CUDAHY and
RIPPLE, Circuit Judges.
  RIPPLE, Circuit Judge. Alowonle Idowu pleaded guilty
to one count of possession with intent to distribute heroin,
in violation of 21 U.S.C. § 841(a)(1). The district court
sentenced him to 87 months’ imprisonment. Mr. Idowu
now appeals his sentence. For the reasons set forth in
this opinion, we affirm the judgment of the district court.
2                                                 No. 07-1623

                              I
                     BACKGROUND
  From 2001 to December 2005, Mr. Idowu owned and
operated Jo-Jo Motors, a used-car business. On three
occasions in late 2003 and early 2004, Mr. Idowu sold
heroin to a confidential informant in the office trailer at Jo-
Jo Motors.
  In 2005, police conducted a search of the office trailer
at Jo-Jo Motors with the consent of Mr. Idowu. The
search uncovered 409.3 grams of heroin in a safe. Also
during the search, police discovered a .357 magnum Smith
& Wesson revolver. The record does not reflect where
in the office the revolver was found.
  Mr. Idowu later was charged in a four-count indictment.
The first three counts charged Mr. Idowu with distrib-
uting heroin, in violation of 21 U.S.C. § 841(a)(1); these
counts corresponded to the three sales of heroin to the
confidential informant. The fourth count charged
Mr. Idowu with possession with intent to distribute in
excess of 100 grams of heroin, also in violation of 21
U.S.C. § 841(a)(1); this count was based on the heroin
discovered in the safe. Mr. Idowu pleaded guilty to
count four. According to his plea agreement, the re-
maining counts were treated as relevant conduct for
purposes of sentencing.
  In addition to increasing Mr. Idowu’s offense level to
reflect the sales of heroin to the confidential informant,
the presentence report (“PSR”) recommended a two-
level increase in the offense level under U.S.S.G.
No. 07-1623                                                      3

§ 2D1.1(b)(1)1 for possession of the weapon. Mr. Idowu
objected to this increase, but the district court overruled
the objection. The district court found that Mr. Idowu
possessed the weapon within the meaning of section
2D1.1(b)(1). It stated:
    Well, as I understand this, if the weapon was present,
    the increase in the offense level applies unless, as the
    government indicated, it’s clearly, let me use the
    word, unlikely that the weapon was being used in
    furtherance of the offense.
       I don’t think its unlikely in this case or clearly im-
    probable. In fact, I think just the opposite it [sic] is true.
    I think the most reasonable conclusion to be drawn is
    that the weapon was there in order to enhance the
    defendant’s business of selling drugs. It was found
    in the same office from which he sold drugs rou-
    tinely, specifically, on three occasions involved with
    the confidential informant in this case alone. It was
    found there with a substantial amount, that is, 409
    grams of heroin.
      Regardless of whether or not the defendant was in
    the business of selling automobiles from that office,
    he was also clearly in the business of selling drugs
    from that office. The Court is aware of the fact and it
    is common knowledge that drug dealers, sellers of
    drugs, often have in their possession firearms to


1
   U.S.S.G. § 2D1.1(a) provides the base offense level for all drug
offenses. Section 2D1.1(b) then sets forth the specific offense
characteristics that affect the base offense level; section
2D1.1(b)(1) provides: “If a dangerous weapon (including
firearm) was possessed, increase by 2 levels.”
4                                               No. 07-1623

     protect their drugs and their business of selling drugs
     because, as we all know, they cannot resort to the
     police for the kind of protection you and I would
     get from the police without incriminating themselves,
     so they defend themselves.
        The weapon found here was a .357 Magnum Smith
     & Wesson revolver. That the defendant had construc-
     tive possession, at least, of this weapon it seems to me
     is clear from the evidence. He used the office, he used
     it routinely to sell drugs from. He was a drug dealer.
     Drug dealers are known to possess weapons for the
     purpose of protecti[ng] their drug business and this
     weapon was found in a place where it would reason-
     ably be if it were being used to protect the drug-
     selling business.
       From all of that, I find that the gun was present as
     required by the statute and the Guidelines and that
     the defendant had possession and control over the
     weapon and that the two-level enhancement applies.
     So the objection to the calculation of the total offense
     level in the Presentence Investigation Report is over-
     ruled.
Sent. Tr. at 10-11.
  Mr. Idowu’s offense level of 27 and criminal history
category of II yielded a presumptive sentencing range of
87 to 108 months. The court sentenced Mr. Idowu to
87 months’ imprisonment.
    Mr. Idowu timely appealed his sentence.
No. 07-1623                                              5

                            II
                     DISCUSSION
   Mr. Idowu challenges the increase in his offense level
resulting from his possession of a weapon. Mr. Idowu
first claims that the Government did not meet its burden
of proof with respect to this enhancement. Additionally,
Mr. Idowu argues that the standard that governs the
application of this enhancement is unconstitutionally
vague. We shall evaluate each of these arguments in turn.


A. Burden of Proof
  Mr. Idowu first contends that the Government failed to
meet its burden of establishing that the enhancement
under section 2D1.1 should apply. This court reviews
the district court’s application of section 2D1.1(b)(1) for
clear error. United States v. Fudge, 325 F.3d 910, 922 (7th
Cir. 2003).
  As noted above, U.S.S.G. § 2D1.1(b)(1) provides: “If a
dangerous weapon (including a firearm) was possessed,
increase by 2 levels.” The commentary states: “The ad-
justment should be applied if the weapon was present,
unless it is clearly improbable that the weapon was con-
nected with the offense. For example, the enhancement
would not be applied if the defendant, arrested at his
residence, had an unloaded hunting rifle in the closet.”
U.S.S.G. § 2D1.1 cmt. n.3.
  We have explained that the application of the weap-
on enhancement in section 2D1.1 involves a shifting of
burdens among the parties:
   The application note to § 2D1.1(b)(1) instructs a court
   to apply this provision “if the weapon was present,
6                                                No. 07-1623

    unless it is clearly improbable that the weapon was
    connected with the offense.” § 2D1.1, cmt. n.3. This
    determination requires that the government first
    prove by a preponderance of the evidence that the
    defendant possessed the gun. United States v. Corral,
    324 F.3d 866, 872 (7th Cir. 2003). If the government is
    able to do so, the burden shifts to the defendant to
    show that it was “clearly improbable” that the weap-
    on was connected to the offense. Id. “Actual possession
    of the firearm need not be established in order to
    trigger the enhancement. Instead, proof of construc-
    tive possession, that is, that the defendant had the
    power and the intention to exercise dominion or
    control of the firearm, is sufficient to warrant the
    enhancement.” Id. (quoting United States v. Thomas,
    294 F.3d 899, 906 (7th Cir. 2002)).
United States v. Bothun, 424 F.3d 582, 586 (7th Cir. 2005).
  We therefore must determine whether the Government
established by a preponderance of the evidence that
Mr. Idowu actually or constructively possessed the
weapon. We previously have held that a defendant con-
structively possesses a weapon if he owns the premises on
which the weapon and drugs are found and if the weapon
is found at the same time as the drugs. For instance, in
Bothun, the police had conducted a search of Bothun’s
home as well as storage units he owned. In the house, the
officers found a .22 caliber rifle and ammunition in a
child’s bedroom. In other parts of the home, the agents
found marijuana and drug paraphernalia. A search of
the storage units revealed other rifles and more mari-
juana. We held that the Government had
    met its initial burden. We described earlier the many
    firearms that the agents found when they searched
No. 07-1623                                              7

   Bothun’s home and storage units. Those weapons
   were found close by drugs and drug paraphernalia. As
   we have explained before, “guns found in close prox-
   imity to drug activity are presumptively connected
   to that activity.”
Bothun, 424 F.3d at 586 (emphasis added). Thus, in Bothun,
the Government met its initial burden by showing that
the defendant kept a weapon in one room of his home
and drugs in another room of the same home.
  This case presents circumstances similar to those in
Bothun. Here, the trailer in which the weapon was
found was owned by Mr. Idowu. Not only did the trailer
serve as the business office for Mr. Idowu’s used-car
business, it also was the place from which Mr. Idowu
dealt heroin. Indeed, the police uncovered heroin in the
trailer at the same time that they uncovered the weapon.
The combination of Mr. Idowu’s ownership of the trailer
and the spacial and temporal proximity of the weapon to
the drugs are sufficient under our prior cases to satisfy
the Government’s burden of establishing constructive
possession.
  Mr. Idowu, however, believes that the Government
failed to meet its initial burden of establishing construc-
tive possession. He argues that the record does not
reflect the configuration of the office trailer or where in
the trailer the weapon was found. Given this lack of
detail, he maintains, it is impossible to discern whether
the drugs and the weapon were related sufficiently to
apply the section 2D1.1 enhancement. We are not per-
suaded by this argument. Bothun permitted application
of the enhancement when drugs and weapons were
located in different rooms of the same home from which
the defendant ran his drug activities. The confines of an
8                                                 No. 07-1623

office trailer certainly present at least as close a physical
and functional proximity as the defendant’s home in
Bothun.
  Mr. Idowu points to a number of cases from other cir-
cuits that, he believes, suggest that the Government has
not established the necessary connection between the
weapon and the drugs to apply the enhancement.
Mr. Idowu first relies upon United States v. Lucas, 282
F.3d 414 (6th Cir. 2002), overruled on other grounds, United
States v. Leachman, 309 F.3d 377 (6th Cir. 2002). In Lucas, the
district court applied the section 2D1.1 enhancement for
a gun that was found in the glove compartment of a car
that the defendant was driving. The Sixth Circuit deter-
mined that the Government had not met its initial burden
under section 2D1.1 where it “presented no evidence at
the sentencing hearing that Lucas owned the gun,
owned the car that he was driving, or even knew that the
gun was in the car’s glove compartment.” Id. at 423. Here,
however, there is no question that Mr. Idowu owned the
trailer in which the gun was found.
  Mr. Idowu also points to three other cases in support
of his claim. In one of those, United States v. Highsmith,
268 F.3d 1141, 1142 (9th Cir. 2001), the Ninth Circuit
acknowledged that its holding conflicted with applica-
tion note 3 to section 2D1.1. This court, however, con-
sistently has employed application note 3. Mr. Idowu
also relies on United States v. McAllister, 272 F.3d 228
(4th Cir. 2001). In McAllister, the Government failed to
establish any temporal or spacial connection between
the defendant’s drug activities and his possession of
weapons. Id. at 234. Lastly, in United States v. Johnson,
260 F.3d 919, 922 (8th Cir. 2001), the Eighth Circuit upheld
the decision of the district court not to apply the enhance-
No. 07-1623                                                 9

ment where the defendant’s possession of the weapon
preceded the drug offense by one year. In the present
case, by contrast, the weapon and the drugs were found
in the same place at the same time.
  Finally, Mr. Idowu submits that, even if the Govern-
ment met its initial burden of establishing constructive
possession, the presumption was rebutted because em-
ployees of the used-car business also had access to the
office trailer and “[i]t was not unusual for employees of
this type of office to carry a gun for their self-protection.”
Appellant’s Br. at 12. These facts, however, do not
show that it is “clearly improbable” that Mr. Idowu
possessed the gun in connection with his drug-related
activities.


B. Constitutionality of “Clearly Improbable” Standard
  Mr. Idowu next argues that the “clearly improbable”
standard set forth in the application note to section 2D1.1
is unconstitutionally vague. We must reject this conten-
tion as well. We explained in United States v. Brierton,
165 F.3d 1133 (7th Cir. 1999), that the vagueness doctrine
does not apply to the Guidelines:
      The vagueness doctrine holds that a person cannot
    be held liable for conduct he could not reasonably
    have been expected to know was a violation of law. “It
    is well-settled that, as a matter of due process, a
    criminal statute that fails to give a person of ordinary
    intelligence fair notice that his contemplated con-
    duct is forbidden by the statute, or is so indefinite
    that it encourages arbitrary and erratic arrests and
    convictions is void for vagueness.” Colautti v. Franklin,
    439 U.S. 379, 390 (1979) (internal citations omitted).
10                                                No. 07-1623

     Certainly, the vagueness doctrine presumes a law
     that attempts to proscribe or prescribe conduct. We
     are mindful, however, that unless First Amendment
     freedoms are implicated, a vagueness challenge may
     not rest on an argument that the law is vague in
     its hypothetical applications, but instead the chal-
     lenger must show that the law is vague as applied
     to the facts of the case at hand. Chapman v. United
     States, 500 U.S. 453, 467 (1991).
       The Guidelines do not establish the illegality of any
     conduct. Rather, they are “directives to judges for
     their guidance in sentencing convicted criminals, not
     to citizens at large.” United States v. Wivell, 893 F.2d
     156, 160 (8th Cir. 1990). In other words, the Guide-
     lines are designed to assist and limit the discretion of
     the sentencing judge. United States v. Macias, 930 F.2d
     567, 571-72 (7th Cir. 1991). It is settled that, with
     the exception of capital cases, a defendant has no
     constitutional right to such directives. Lockett v. Ohio,
     438 U.S. 586, 603 (1978) (finding that “legislatures
     remain free to decide how much discretion in sen-
     tencing should be reposed in the judge or jury in
     noncapital cases”). As such, the Guidelines are not
     susceptible to attack under the vagueness doctrine.
Brierton, 165 F.3d at 1138-39 (parallel citations omitted).
  However, even if the vagueness doctrine applied to
the Guidelines, we could not conclude that the standard
set forth in application note 3 to section 2D1.1 is uncon-
stitutionally vague. Courts are accustomed to applying
the “clear error” standard, which requires that an error
be clear or apparent in order to be reversed. See, e.g., United
States v. Dole, 498 F.3d 604, 608 (7th Cir. 2007) (“Clear
error occurs when after reviewing the entire evidence,
No. 07-1623                                                 11

we are left with the definite and firm conviction that a
mistake has been committed.” (internal quotation marks
and citations omitted)). Courts also are familiar with
applying probabilities—i.e., determining if it is more likely
than not that a certain event occurred. Applying the
“clearly improbable” standard simply requires judges to
meld these two concepts. Thus, judges will find that
the defendant has rebutted the presumption under ap-
plication note 3 when the defendant not only has shown
that it is improbable that he possessed the weapon in
connection with his drug crime, but also that the improba-
bility is apparent to those assessing the factual situation.
See United States v. Johnson, 344 F.3d 562, 567 (6th Cir. 2003)
(“The defendant must show, not that there is a possible
innocent explanation, nor even that the gun was ‘probably’
not connected to the offense, nor yet that it is ‘improbable’
that the gun was so connected, but, even more, that it was
‘clearly improbable.’ (Emphasis added.)”). Because the
“clearly improbable” standard combines two standards
with which the federal judiciary already is familiar, it
is sufficiently clear to permit courts to apply it in a con-
sistent manner.2


2
  Mr. Idowu also maintains that the district court should
have granted him a continuance of the sentencing hearing to
garner evidence that there were actual sales of automobiles
that took place at Jo-Jo Motors and that it was not simply a
front for drug dealing. We do not believe that the district
court abused its discretion in denying this request. See United
States v. Rinaldi, 461 F.3d 922, 928-29 (7th Cir. 2006).
  The record reflects that Mr. Idowu entered his guilty plea
on August 15, 2006, and that sentencing initially was sched-
uled for October 24, 2006. On motion of the parties, the sen-
                                                (continued...)
12                                                   No. 07-1623

                          Conclusion
 For the reasons set forth above, we affirm the judg-
ment of the district court.
                                                       AFFIRMED




2
  (...continued)
tencing was reset for November 11 and then for January 4,
2007. After Mr. Idowu retained new counsel, the hearing
was reset for January 24, 2007. By motion of the parties, the
sentencing again was reset to February 16, 2007, and then to
March 2, 2007. Thus, the sentencing hearing was held more than
six months after Mr. Idowu entered his plea and a full three
months after he retained new counsel. Requiring counsel to
proceed with sentencing after having three months to prepare,
and having been granted two continuances, was within the
district court’s discretion. See, e.g., United States v. Knorr, 942
F.2d 1217, 1222 (7th Cir. 1991) (upholding denial of a continu-
ance where new counsel was given only eight days to prepare
for the sentencing hearing). Furthermore, for purposes of
sentencing Mr. Idowu, the district court essentially assumed that
both legal sales of automobiles and illegal sales of drugs
occurred at Jo-Jo Motors. See Sent. Tr. at 10 (“Regardless of
whether or not the defendant was in the business of selling
automobiles from that office, he was also clearly in the business
of selling drugs from that office. . . .”). Thus, Mr. Idowu was
not harmed by the district court’s refusal to grant a continu-
ance to present evidence of legitimate car sales.


                      USCA-02-C-0072—4-1-08
