                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1545
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                               Jeremy Michael Graham

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                            Submitted: February 11, 2019
                                Filed: July 3, 2019
                                   [Unpublished]
                                  ____________

Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.
                              ____________

PER CURIAM.

       Jeremy Michael Graham pleaded guilty to conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and
to being a drug user in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3)
and 924(a)(2). In calculating Graham’s sentence, the district court1 included a
two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for possessing a firearm
in connection with a conspiracy to traffic drugs. The court then imposed concurrent
sentences of 240 months for the conspiracy charge and 120 months for the firearm
charge. Graham challenges the application of the two-level enhancement; he also
challenges his 240–month sentence as substantively unreasonable.

                                   I. Background
       On November 29, 2016, an undercover agent contacted Graham to purchase
one ounce of methamphetamine. Graham requested the agent pay him $950 up front.
As collateral, Graham offered the agent the title to three of his cars and an extra 1/8th
of an ounce of methamphetamine. The agent met Graham at his house, where Graham
also offered a .22 caliber handgun in his possession as collateral. The agent did not
buy any drugs from Graham because Graham did not have any to sell at the time.
However, the agent did buy Graham’s .22 caliber handgun for $250.

        Graham discussed firearms with the agent on at least two later occasions. On
February 23, 2017, the agent purchased 14.16 grams of methamphetamine from
Graham in a parking garage. During that transaction, Graham mentioned having a
defective .25 caliber pistol for sale. He also stated he had access to shotguns. Then,
on April 4, Graham sold the agent a submachine gun and a rifle for $1,600. After that
sale, the two drove to a house to purchase methamphetamine from a third party. The
agent paid Graham $2,000, and Graham purchased 55.25 grams of methamphetamine
from the third party. The police arrested Graham later that day, and Graham admitted
to buying and selling methamphetamine.




      1
       The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

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       Graham was charged with conspiracy to distribute methamphetamine and with
being a drug user in possession of a firearm, and he subsequently pleaded guilty to
those charges. At sentencing, the district court calculated a total offense level of 37,
including a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for possessing
a firearm in connection with a conspiracy to traffic drugs. The court mentioned the
February 23 and April 4 incidents but relied mainly on Graham’s November 29 sale
of the .22 caliber handgun in determining whether the enhancement applied. Graham
objected, arguing the enhancement should not apply because the firearm at issue had
not actually created an additional danger. The court disagreed with Graham’s
interpretation of the law, explaining:

             There’s no question that the defendant possessed the gun, the
      defendant used that gun in furtherance of his drug trafficking by
      providing it to the other individual who was also in his mind engaged in
      drug trafficking with him. The idea that somehow it is less applicable to
      score the adjustment because there was not actual danger, because it was
      a law enforcement officer, undermines the fact that this defendant did
      not know that was a law enforcement officer. He thought he was giving
      a gun to another individual engaged in drug trafficking with him and
      that presents a danger to the community. It is exactly what the
      2D1.1(b)(1) adjustment is designed to recognize and that is that when
      drugs are present with guns, it creates more danger, not only to the
      individuals involved in drug trafficking, but with those around them.

Sentencing Tr. at 15, United States v. Graham, No. 3:17-cr-00060-RGE (S.D. Iowa
Apr. 3, 2018), ECF No. 52. The court calculated Graham’s Guidelines range at
262–327 months.

      The government requested a sentence at the low end of the Guidelines range,
while Graham requested a below-Guidelines sentence of 178 months. In crafting its
sentence, the court discussed aggravating and mitigating factors. The court listed as
aggravating factors “the firearm that was involved in [the November 29] transaction,”

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as well as “the other firearms that were either discussed or referenced in the course
of this conspiracy” and the “volume of the illegal substances involved here.” Id. at 23.
The court considered Graham’s break in criminal history and his difficult childhood
to be mitigating factors. Ultimately, the court varied downward, imposing concurrent
sentences of 240 months for the conspiracy charge and 120 months for the firearm
charge.

                                   II. Discussion
      On appeal, Graham renews his objection to the U.S.S.G. § 2D1.1(b)(1)
enhancement. He also challenges his 240-month sentence as substantively
unreasonable. He argues the district court should have varied further downward.

                                  A. Enhancement
       “Section 2D1.1(b)(1) of the Sentencing Guidelines Manual provides for a
two-level increase in a defendant’s base offense level ‘[i]f a dangerous weapon
(including a firearm) was possessed’” during a drug trafficking crime. United States
v. Rogers, 150 F.3d 851, 857 (8th Cir. 1998) (alteration in original) (quoting U.S.S.G.
§ 2D1.1(b)(1)). “The enhancement for weapon possession in subsection (b)(1) reflects
the increased danger of violence when drug traffickers possess weapons.” U.S.S.G.
§ 2D1.1 cmt. n.11(A).

      For [the enhancement] to apply, the government must prove by a
      preponderance of the evidence that a weapon was present, and that it
      was not clearly improbable that the weapon had a nexus with this
      conspiracy. . . . A nexus exists where there is a temporal and spatial
      relation between the weapon, the drug trafficking activity, and the
      defendant.

United States v. Perez-Guerrero, 334 F.3d 778, 783 (8th Cir. 2003) (cleaned up).
Specifically, “a drugs-for-gun trade is sufficient to warrant a two-level enhancement
under § 2D1.1(b)(1),” notwithstanding the fact that the defendant “may have neither

                                          -4-
fired nor flaunted the gun” while selling drugs. Rogers, 150 F.3d at 858. “The fact
that a gun is treated momentarily as an item of commerce does not render it inert or
deprive it of destructive capacity. Rather, as experience demonstrates, it can be
converted instantaneously from currency to cannon.” Smith v. United States, 508 U.S.
223, 240 (1993).

       Graham argues the enhancement should not apply because “[t]he gun and the
drugs w[]ere never in Mr. Graham’s possess[ion] at the same time. In fact there were
never any drugs involved in the transaction.” Appellant’s Br. at 20. However, it is not
necessary for the guns and the drugs to have been in a defendant’s possession at the
same time for the enhancement to apply: it is the “drug offense,” rather than the drugs
themselves, which is relevant to the enhancement. See United States v. Anderson, 618
F.3d 873, 880 (8th Cir. 2010). It is the nexus “between the weapon, the drug
trafficking activity, and the defendant” which is key—not the nexus between the
weapon and the actual drugs. Perez-Guerrero, 334 F.3d at 783 (internal quotation
omitted). The enhancement addresses the danger presented by drug traffickers rather
than by just drugs alone. Because the enhancement applies regardless of whether the
guns and drugs were at the same place at the same time, Graham’s argument fails.

       Graham’s argument that the enhancement should not apply because the .22
caliber handgun created no actual danger of violence is likewise unavailing. Graham
claims that because the enhancement aims to deter and punish the dangerous drugs
and guns combination, we should apply an “increased danger of violence” standard,
requiring courts to affirmatively find that a firearm increased the danger of violence
in the transaction at issue before applying the enhancement. Appellant’s Br. at 19.
However, Graham’s proposed standard conflicts with our “not clearly improbable”
standard by increasing the government’s burden. Perez-Guerrero, 334 F.3d at 783.

     The district court found by a preponderance of the evidence that Graham was
engaged in a conspiracy to traffic drugs while in possession of a firearm. The

                                         -5-
connection between the .22 caliber handgun and Graham’s drug trafficking was “not
clearly improbable.” Graham does not deny having possessed the .22 caliber
handgun; nor does he deny having offered the .22 caliber handgun as collateral for
a drug deal. Therefore, the district court did not err in imposing the enhancement.

                                B. Reasonableness
      Graham argues the district court erred in sentencing him to 240 months’
imprisonment because such a sentence was greater than necessary to impose just
punishment, deter crime, and promote respect for the law. Graham maintains the court
should have varied further downward in light of his difficult upbringing and life
circumstances.

       Graham’s argument is without merit. “When a district court varies downward
from a presumptively reasonable guideline sentence, ‘it is nearly inconceivable that
the court abused its discretion in not varying downward still further.’” United States
v. Zauner, 688 F.3d 426, 429 (8th Cir. 2012) (quoting United States v. Lazarski, 560
F.3d 731, 733 (8th Cir. 2009)). This remains true even where the variance is modest.
See, e.g., Lazarski, 560 F.3d at 733 (varying downward from 120 to 108 months).

       Here, the court explicitly considered Graham’s difficult upbringing and life
circumstances and varied downward 22 months from the Guidelines range of
262–327 months. Given the district court’s thorough analysis, we find no abuse of
discretion in its declining to vary even further downward.

                                  III. Conclusion
      The judgment of the district court is affirmed.
                     ______________________________




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