                                                                                 F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  FEB 5 2003
                                         TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,
                                                              No. 02-7074
 v.                                                       D.C. No. 02-CR-05-S
                                                            (E.D. Oklahoma)
 ROBERT DALE RUCKMAN,

                 Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before KELLY, PORFILIO and BRISCOE, Circuit Judges.


          Defendant Robert Ruckman appeals the sentence imposed following his plea of

guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and

affirm.

                                               I.

          On January 16, 2001, Oklahoma state authorities executed a search warrant at the




        This order and judgment is not binding precedent, except under the doctrines of
          *

law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
home of Robert and Bridget Ruckman. The authorities found several firearms in the

Ruckmans’ bedroom. In particular, they found a Remington Model 700 7mm Magnum

Rifle under their bed. They also found twenty-five other firearms, including seven inside

a black gun safe, thirteen inside a green gun safe, three hanging on a gun rack above the

bed, one leaning against a dresser, and another under the bed.

       Defendant was indicted on three counts of being a felon in possession of firearms.

Count I concerned the 7mm rifle and Counts II and III concerned the other firearms found

in the Ruckmans’ bedroom, a firearm found in another bedroom at the home, and firearms

found during a subsequent search of Bridget Ruckman’s vehicle. Defendant pled guilty

to Count I and the government dismissed Counts II and III. At the sentencing hearing, the

government introduced evidence detailing the search of the home and facts surrounding

defendant’s 1992 conviction for second degree burglary.

       The district court sentenced defendant to a term of imprisonment of eighty-seven

months. The court determined he possessed twenty-five additional firearms and enhanced

his sentence pursuant to U.S.S.G. § 2K2.1(b)(1)(E). The court also enhanced his sentence

based upon the conclusion that his second degree burglary conviction was a “crime of

violence,” as that term is used in U.S.S.G. § 4B1.2(a).

                                            II.

Non-exclusive possession

       The district court applied the sentencing enhancement factor in U.S.S.G.


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§ 2K2.1(b)(1)(e) (2000),1 which suggests a five-level enhancement for possessing

between twenty-five and forty-nine firearms. Defendant argues the court erred by finding

he constructively possessed the firearms found in the Ruckmans’ bedroom. Where, as

here, a defendant objects to a fact contained within the presentence report, the

government bears the burden of establishing that fact by a preponderance of the evidence.

See United States v. Shinault, 147 F.3d 1266, 1278 (10th Cir. 1998).

       Ordinarily, an individual is considered to constructively possess an item when he

or she knowingly holds the power and ability to exercise dominion and control over the

property. See United States v. Carter, 130 F.3d 1432, 1441 (10th Cir. 1997). In situations

involving joint occupancy, such as here, more is required to establish constructive

possession than dominion and control. “To prove constructive possession where there is

joint occupancy, the government must present direct or circumstantial evidence to show

some connection or nexus individually linking [defendant] to the [firearms.]” United

States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th Cir. 1999). The requisite nexus is

established where there is some evidence to support the plausible inference that defendant

had knowledge of and access to the firearms. See id.; United States v. Mills, 29 F.3d 545,


       1
         Although defendant was arrested on January 16, 2001, he was not sentenced
until May 30, 2002. Ordinarily, the district court would apply the guidelines in effect at
the time of sentencing, which would be the 2001 edition. See United States v. Turner,
285 F.3d 909, 915 n.7 (10th Cir. 2002). However, section 2K2.1 was amended on
November 1, 2001, and the amendment, as applied to defendant, would increase the level
of enhancement from five to six points. Accordingly, the district court applied the 2000
edition.

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550 (10th Cir. 1994). We review the district court’s interpretation of the guidelines de

novo, and its factual findings for clear error, giving due deference to the district court’s

application of the guidelines to the facts. See United States v. Brown, 314 F.3d 1216,

1222 (10th Cir. 2003).

       We conclude the district court correctly determined that the government

established the requisite nexus between defendant and the firearms located in the

Ruckmans’ bedroom. One of the firearms was found under the Ruckmans’ bed, next to

the 7mm rifle defendant admitted possessing. The government also presented evidence

that one firearm was found leaning against a dresser in the bedroom and three firearms

were found hanging above the bed. Defendant was carrying the key to the locked gun

safe. The locked gun safe and an unlocked gun safe contained a total of twenty firearms.

Defendant’s close proximity to the firearms, the open manner in which many of the

firearms were stored, his possession of the key to the locked gun safe, and the proximity

of the firearms to the firearm he pled guilty to possessing are more than sufficient to

establish his connection to the firearms.

       Defendant contends the district court failed to consider the fact that his wife also

occupied the bedroom and that she subsequently bartered several of the identified

firearms to pay her own legal bills. Defendant presents no evidence to support his

contention that his wife's joint ownership of the firearms precludes the district court from

concluding he possessed the firearms. Indeed, possession, not ownership, is the


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dispositive inquiry. Defendant also argues the fact that the government failed to identify

which safe was unlocked by the key defendant possessed undercuts the district court’s

finding. This point too is of no import considering defendant does not dispute that the

key found on his person unlocked the only locked safe.

       We are not persuaded by defendant's citation of United States v. Taylor, 113 F.3d

1136 (10th Cir. 1997), and United States v. Mills, 29 F.3d 545 (10th Cir. 1994), to argue

the government has not carried its burden or proof. Those cases addressed whether there

was sufficient evidence for a jury to convict the defendant for constructively possessing

the firearms at issue. While the cases are instructive, the government is not required to

meet the same burden of proof in utilizing a sentencing enhancement. See, e.g., Shinault,

147 F.3d at 1278 (stating the government must prove the facts upon which it bases a

sentencing enhancement by a preponderance of the evidence). In addition, both Taylor

and Mills lack a requisite level of factual similarity for a meaningful comparison with the

present case. Cf. Taylor, 113 F.3d at 1146 (finding the evidence insufficient to convict

based upon constructive possession when three men were linked to bedroom where the

firearm was located in a closet, and the only evidence connecting defendant to the room

were receipts found in entertainment center in the room); Mills, 29 F.3d at 549 (finding

the evidence insufficient to convict the defendant based upon constructive possession

where the evidence showed the defendant had dominion and control over room where

firearms were located, not the specific hidden compartment where firearms were


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ultimately found).



Crime of violence

       Defendant contends the district court erred in concluding his 1992 conviction for

second degree burglary was a “crime of violence,” as that term is used in U.S.S.G.

§ 4B1.2(a) (2000). Pursuant to § 4B1.2(a), a “crime of violence” includes the crime of

“burglary of a dwelling.” To determine whether a burglary conviction constitutes a

“crime of violence,” we look first at the statutory basis of the conviction and consider

whether the statutory elements are narrowly confined to the common law definition of

burglary, i.e., the “‘unlawful or unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime.’” United States v. Hill, 53 F.3d 1151, 1153 (10th

Cir. 1995) (en banc) (quoting Taylor v. United States, 495 U.S. 575, 599 (1990)).

       Defendant was convicted of violating Okla. Stat. Ann. tit. 21, § 1435, which

provides: “Every person who breaks and enters any building or any part of any building

. . . in which any property is kept, . . . with intent to steal any property therein or to

commit any felony.” In Hill, 53 F.3d 1153, we recognized § 1435 is broader than the

Taylor definition. Thus, we look to the underlying indictment or information and the text

of the guilty plea to determine whether defendant was charged with and admitted

committing conduct that falls within the common law definition of burglary set forth in

Taylor. See United States v. Haslip, 160 F.3d 649, 656 (10th Cir. 1998).


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       The information charged defendant with “unlawfully, willfully and feloniously

break[ing] and enter[ing] into a certain dwelling house.” Aplee. App. at 1. In addition,

defendant admitted that he and another person entered the house and stole several items.

Id. at 9-16. On March 25, 1992, he pled guilty to “the crime of BURGLARY, SECOND

DEGREE.” Id. at 2. These facts support the district court's conclusion that defendant

was convicted of a “crime of violence,” as defined by § 4B1.2(a).

       Defendant contends United States v. Bennett, 108 F.3d 1315 (10th Cir. 1997),

requires a ruling in his favor on the “crime of violence” issue. In Bennett, we vacated a

sentence that was enhanced based in part upon the district court's conclusion that

defendant's prior guilty plea to second degree burglary was a “crime of violence.” Id. at

1316. The information originally charged Bennett with first degree burglary for breaking

into a dwelling, but he agreed to plead guilty to the lesser charge of second degree

burglary. There was no evidence indicating whether Bennett’s guilty plea retained the

allegation that his crime involved breaking into a dwelling. Because it was conceivable

that Bennett’s acceptance of responsibility for the lesser crime could have included

elimination of the allegation that he broke into a dwelling, we determined the government

had not met its burden of proving the second degree burglary conviction was a “crime of

violence.” See id. at 1318-19 (noting the district court’s “knowledgeable speculation” to

the contrary was insufficient).

       While defendant’s “Judgment and Sentence” makes no mention of conduct


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committed, Bennett does not require our reversal of the district court. Here the

information charged defendant with burglarizing “a certain dwelling house” and he pled

guilty to that crime. In addition, the district court relied exclusively upon the information,

which clearly included the allegation that defendant unlawfully entered “a certain

dwelling house.” The district court also heard testimony that the judgment and guilty plea

were based upon defendant’s burglary of “a certain dwelling house.” See Hill, 53 F.3d at

1154 (finding government need not produce text of guilty plea where charging document,

coupled with another document, sufficiently enabled court to determine whether

defendant’s prior conviction constituted a violent felony).

       AFFIRMED.

                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge




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