                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 09a0660n.06

                                            No. 08-1018

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                          FILED
                                                                                      Sep 24, 2009
UNITED STATES OF AMERICA,                               )                       LEONARD GREEN, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
                                                        )    THE WESTERN DISTRICT OF
TERENCE L. WILLIAMS,                                    )    MICHIGAN
                                                        )
       Defendant-Appellant.                             )
                                                        )


Before: SILER, GIBBONS, and GRIFFIN, Circuit Judges.

       PER CURIAM. Terence Williams appeals his sentence following his conviction of

conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine in

violation of 21 U.S.C. §§ 846, 841(a)(1) and 841 (b)(1)(A). Williams argues that the district court

erred in (1) imposing a two-level enhancement to his sentencing guidelines calculation for

possession of a dangerous weapon pursuant to USSG § 2D1.1(b)(1); and (2) assessing a criminal

history point for a 1992 juvenile sentence under USSG § 4A1.2(d)(2). We affirm the two-level

enhancement for possession of a firearm, vacate the criminal history calculation, and remand for

further proceedings consistent with this opinion.

       Williams argues that the district court erred in enhancing his sentencing guidelines

calculation for possession of firearms because they were not actually present during the drug offense.
No. 08-1018
United States v. Williams

We review the enhancement for clear error. See United States v. Wheaton, 517 F.3d 350, 367 (6th

Cir. 2008).

       Section 2D1.1(b)(1) of the Guidelines states that “[i]f a dangerous weapon (including a

firearm) was possessed, increase by 2 levels.” Either actual or constructive possession of firearms

will support the enhancement. United States v. Pruitt, 156 F.3d 638, 649 (6th Cir. 1998). In order

to establish constructive possession, “the government must show that the defendant had ownership,

dominion, or control over the [firearm] or dominion over the premises where the [firearm] is located.

Circumstantial evidence is sufficient to establish constructive possession.” United States v. Miggins,

302 F.3d 384, 391 (6th Cir. 2002) (citations omitted). Once the government is able to satisfy its

burden of showing possession, “then the burden shifts to the defendant to demonstrate that it was

clearly improbable that the weapon was connected to the offense.” Id. Furthermore, the government

must show only that the dangerous weapon was possessed during “relevant conduct.” United States

v. Faison, 339 F.3d 518, 520 (6th Cir. 2003). Relevant conduct is “all acts and omissions . . . that

were part of the same course of conduct or common scheme or plan as the offense of conviction.”

Id. at 520 (citing USSG § 1B1.3(a)(2)).

       There was sufficient evidence to support a finding that Williams was in constructive

possession of the loaded firearms found at his mother’s residence during the time of the conspiracy.

First, he used his mother’s address on his driver’s license and he received mail there as well.

Second, the weapons found at his mother’s residence were the types of weapons used by drug

traffickers (two Glock semi-automatic handguns, a Tec-9 semi-automatic pistol, and a 7.62 semi-

automatic assault rifle). Third, ammunition and a loaded magazine for the 7.62 assault rifle were

                                                -2-
No. 08-1018
United States v. Williams

found in Williams’s residence, together with a receipt for a storage unit where another 1,000 rounds

of 7.62 ammunition were found– connecting him to the rifle found at his mother’s residence. Fourth,

at least one witness stated that he had seen Williams inside his home with an “AR-15 style assault

rifle having a large magazine.” And finally, the weapons were found on the date on which the

conspiracy allegedly ended.

       In response, Williams provided no evidence indicating that the connection between his

offenses and the firearms was clearly improbable. Therefore, he failed to meet his burden. As such,

the district court did not clearly err in imposing the enhancement.

       Williams also challenges the inclusion of a 1992 juvenile proceeding in his criminal history

calculation because it did not occur within five years of the instant offense. Section 4A1.2(d)(2)(B)

of the Guidelines requires the sentencing court to “add 1 point . . . for each adult or juvenile

sentence imposed within five years of the defendant’s commencement of the instant offense (not

otherwise counted).” Williams’s juvenile sentence was imposed on May 7, 1992. Therefore, in

order for that sentence to be counted for criminal history purposes, the instant offense must have

begun within five years of that date, or prior to May 7, 1997.

       Although the relevant time period used for determining whether the juvenile offense should

be included is five years under USSG § 4A1.2(d)(2)(B), the district court erroneously used ten years.

At sentencing, it asked the government whether the “conviction was obtained within ten years

preceding the involvement in the criminal activity that is at issue?” The government responded:

“Yes, Your Honor, certainly within ten years. Within five years if you look at the other evidence.”



                                                -3-
No. 08-1018
United States v. Williams

Without making any further reference to the relevant time period, the district court concluded that

“I think I have to calculate that. It’s not a matter in my discretion.”

       While the district court on remand may consider evidence demonstrating that inclusion of

the 1992 juvenile offense in the criminal history calculation was proper, it must make the

determination using the relevant five-year period under USSG § 4A1.2(d)(2)(B). In all other

respects, the judgment is affirmed.

       AFFIRMED in part, VACATED in part, and REMANDED.




                                                 -4-
