                                 _____________

                                  No. 95-2681
                                 _____________


United States of America,                *
                                         *
        Appellee,                        *
                                         *   Appeal from the United States
        v.                               *   District Court for the
                                         *   Eastern District of Missouri.
Lonnie Payne,                            *
                                         *
        Appellant.                       *

                                  __________

                           Submitted:     February 13, 1996

                               Filed:    April 15, 1996
                                   __________

Before MAGILL, HEANEY, and MURPHY, Circuit Judges.
                               __________


MURPHY, Circuit Judge.


        Lonnie Payne pled guilty to conspiracy to distribute and possess with
intent to distribute in excess of five kilograms of cocaine in violation
of 21 U.S.C. §§      841(a)(1) and 846.      He was sentenced by the district
    1
court to 210 months imprisonment.       On appeal, Payne raises several points
related to his sentence.    He contends that his offense level was improperly
increased for possession of a firearm pursuant to § 2D1.1(b)(1) of the
Sentencing Guidelines, that the standard of proof in the application note
accompanying this section violates due process, and that the district court
was unaware of its authority to depart downward from the guidelines.         We
affirm.




        1
      The Honorable Stephen N. Limbaugh, United States District
Judge for the Eastern District of Missouri.
                                     I.


     In 1993, the St. Louis Police Department received information about
a cocaine distribution conspiracy involving Payne and his cousin, Leroy
Eason.   For the next year, police investigated their activities, conducting
numerous surveillances of various residences and monitoring cellular
telephone calls between them and other members of the conspiracy.


         In his plea agreement,2 Payne stipulated to the following facts.
From May 1, 1994 through October 7, 1994, Payne conspired with Leroy Eason,
Raymond Tohill, Anthony Fitzpatrick, and other individuals to distribute
large amounts of cocaine in St. Louis, Missouri.   Payne and Eason recruited
couriers to transport money by car to Los Angeles, California, where Payne
and Eason purchased the cocaine.   The cocaine was then concealed in a car
and driven back to St. Louis by a courier.   Payne and Eason retrieved the
drugs after they arrived in St. Louis and distributed them to other persons
in the area.


     Payne further stipulated that Tohill transported money and cocaine
between St. Louis and Los Angeles on five completed trips, and was
compensated for his role in the conspiracy.        During his sixth trip,
however, Tohill was stopped on October 4, 1994 for a traffic violation in
Las Vegas, Nevada.     Police searched the car with Tohill's consent and
discovered some twenty four kilograms of




     2
      In the agreement, Payne agreed to plead guilty to Count I,
the conspiracy count, and the government agreed to dismiss Count
III, which charged Payne with knowingly using and carrying a
firearm during and in relation to a drug trafficking crime in
violation of 18 U.S.C. § 924(c). Payne stipulated that he
understood his sentence would be subject to the Sentencing
Guidelines and that both parties could comment on their
application. There is no contention that the sentencing
enhancement violated the plea agreement, and a conviction on the
substantive offense is not necessary for an enhancement. See
United States v. Meyers, 990 F.2d 1083, 1086 (8th Cir. 1993).

                                     2
cocaine.       Payne stipulated that this cocaine was destined for himself,
Eason, and Fitzpatrick.


            Government testimony at a suppression hearing and the sentencing
hearing indicated that Tohill's arrest was a major breakthrough in the
investigation.         According to St. Louis police detective Michael Busalaki,
who testified at both hearings, Tohill had told the Nevada authorities that
he was scheduled to deliver the cocaine to Eason.                   He agreed to make a
controlled delivery using packages similar to those which had contained the
cocaine.       He returned to St. Louis on the night of October 6, 1994, and
contacted Eason as instructed by the police.                  Based on their previous
surveillances, the police obtained several search warrants that same night
for locations where they believed Payne and Eason stored their cocaine.
One of these warrants was for an apartment at 1272 Woodchase, which
authorities had seen Payne, Eason, and Fitzpatrick enter and leave on
various occasions.


        Detective       Busalaki   testified     that    police    observed    Eason    and
Fitzpatrick arrive at Tohill's residence in Lake St. Louis a few minutes
after       midnight    on   October   7,   1994.       Tohill    received    payment   for
transporting the cocaine, and the other two men left in separate cars.
Fitzpatrick left first with the packages received from Tohill, and Eason
followed.      They drove a direct route to within one to one and a half miles
of the Woodchase apartment when Eason spotted the police surveillance and
contacted Fitzpatrick by cellular phone.                Fitzpatrick tried to elude the
officers who then stopped and arrested both men.3                   A firearm was found
underneath       the    steering   wheel of the car Eason had been driving.




        3
      At some point, Eason and Fitzpatrick told police that they
had been headed to the Woodchase apartment, one of their safe
houses for drugs and money. Eason also stated that Payne stayed
at the Woodchase apartment with him.



                                             3
       Authorities then proceeded to the Woodchase apartment, arriving
shortly before 1 a.m. that same morning and entering pursuant to their
search warrant.       They encountered Payne coming out of the downstairs
bedroom into the hallway.          He was wearing only pajama bottoms and nothing
on his feet.     Agent Anthony Piwowarczyk of the Bureau of Alcohol, Tobacco
and Firearms seized a loaded Volunteer brand .45 caliber semiautomatic
carbine rifle which had been leaning against an open closet door in the
downstairs bedroom.       He testified at the sentencing hearing that the rifle
was visible from the bedroom doorway.           Officers also discovered a traffic
summons in Payne's name and photographs of Payne on the bedroom dresser.
After his arrest, Payne dressed in clothing and shoes from the downstairs
bedroom.     A search of the rest of the apartment yielded a money counter,
rolls of gray duct tape like that wrapped around the cocaine seized from
Tohill, and an automatic handgun underneath a mattress in the upstairs
bedroom.
       Several   other    search     warrants   were   executed    that    same   day    at
locations that Payne and Eason reportedly used to store drugs.              Authorities
recovered a firearm at three of these locations.


       The    district     court     determined    that    Payne    had    actually      or
constructively possessed, either solely or jointly with others, the rifle
seized by authorities in the downstairs bedroom at the Woodchase apartment.
It then enhanced Payne's sentence two levels for possession of a firearm
during a drug trafficking offense pursuant to Guideline § 2D1.1(b)(1).


       Payne requested a downward departure from the guidelines on the basis
that his criminal history category overstated the seriousness of his past
behavior.      The presentence report (PSR) had calculated his history as
Category II based on two adult convictions for possession of a controlled
substance and driving with a suspended license.              After hearing arguments
from   both    parties,     Judge    Limbaugh     stated   that    under   all    of    the
circumstances,




                                            4
including "the comments of counsel, and the entire file in this matter,
together with the provisions in the report of the probation officer," a
downward departure was not appropriate.


     Payne now appeals the two-level enhancement of his sentence and the
refusal to depart downward.


                                     II.


     Federal Sentencing Guideline § 2D1.1(b)(1) provides for an increase
of two levels to a person's base offense level for certain drug-related
crimes "[i]f a dangerous weapon (including a firearm) was possessed."
Application Note 3 explains that the enhancement reflects the "increased
danger of violence when drug traffickers possess weapons," and states that
the adjustment "should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense."      The
burden lies on the government to prove by a preponderance of the evidence
both that "the weapon was present and that it is at least probable that the
weapon was connected with the offense."     United States v. Hayes, 15 F.3d
125, 127 (8th Cir.), cert. denied, 114 S.Ct. 2718 (1994).       The district
court's finding that a defendant possessed a firearm for purposes of
§ 2D1.1(b)(1) may only be reversed if clearly erroneous.      Id.


     Payne argues that the government failed to prove that he possessed
the firearm.   He claims   there was no proof he owned or even knew about the
semiautomatic rifle, that his fingerprints were not found on the rifle, and
that the Woodchase apartment was leased in Eason's name.


     Ownership of either the weapon or the premises on which it is found
is not required for a § 2D1.1(b)(1) enhancement.       See United States v.
Weaver, 906 F.2d 359, 360 (8th Cir. 1990).      It is not necessary that an
individual be observed using the weapon, and




                                      5
either   actual    or   constructive    possession   is    sufficient,    i.e.,       the
individual must have exercised "ownership, dominion, or control" either
over the firearm or the premises on which it is found.            See United States
v. Luster, 896 F.2d 1122, 1129 (8th Cir. 1990).


     At the time the officers entered the Woodchase apartment, Payne was
alone in it and was observed coming out of the downstairs bedroom in which
the semiautomatic rifle was found in a visible location.                Although the
apartment was leased under Eason's name and there were two bedrooms, Eason
had told authorities that Payne lived there, and agents had seen Payne
enter it before.     Payne's pictures, personal papers, and clothing were all
found in the downstairs bedroom.        See Hayes, 15 F.3d at 127 (pictures of
defendant in locker containing weapons was evidence of constructive
possession over the locker); see also Weaver, 906 F.2d at 360 (defendant
had constructive possession of weapon in another bedroom of the apartment).
Based on this evidence, the court did not err in finding that Payne had
possession over the firearm in the downstairs bedroom.


     Payne next contends that there was no connection between the rifle
and his charged offense.     He claims that no spatial nexus existed because
no drugs were found in the Woodchase apartment and no temporal nexus
existed because the government did not show he had recently committed any
drug-related activity there.


     The government can prove that the weapon was connected with the
offense by showing that "a temporal and spacial relation existed between
the weapon, the drug trafficking activity, and the defendant."                  United
States v. Bost, 968 F.2d 729, 732 (8th Cir. 1992).           Here, the crime that
Payne pled guilty to was conspiracy to distribute and possess with intent
to distribute in excess of five kilograms of cocaine.                   In order to
establish   a     nexus,   therefore,   the   government    had    to   prove    by    a
preponderance of the evidence that the weapon was found in the same
location where drugs or drug




                                         6
paraphenalia were stored, or where part of the conspiracy took place.   See
id.


      The government presented evidence that the Woodchase apartment was
a location related to a drug distribution conspiracy in which Payne was
involved.   Payne stipulated that he conspired with Tohill, Eason, and
Fitzpatrick to distribute cocaine, that Tohill made several round trips
between Los Angeles and St. Louis transporting cocaine and money in
furtherance of the conspiracy, and that the twenty four kilograms of
cocaine seized from Tohill's car was to be delivered to him, Eason, and
Fitzpatrick.   Authorities observed Eason and Fitzpatrick drive in the
direction of the Woodchase apartment after they picked up what was packaged
like the original cocaine.   Because of an unexpected turn of events, they
were intercepted approximately one mile from the apartment after they
spotted the surveillance.    Authorities had previously observed Payne and
other members of the conspiracy enter and leave the Woodchase apartment on
different occasions, and found Payne there with a loaded semiautomatic rife
in his possession within an hour of Tohill's delivery to Eason and
Fitzpatrick.   This was sufficient evidence to establish a temporal nexus
between the rifle and the conspiracy to distribute cocaine.


      The government also established a sufficient spatial nexus.   Although
drugs were not found at the Woodchase apartment, Officer Busalaki testified
that police recovered a quantity of money and        several items of drug
paraphernalia, including a money counter and duct tape similar to that
wrapped around the cocaine seized from Tohill.   This evidence corroborates
Eason's statement that he and Payne used the Woodchase apartment to store
and package drugs for distribution and to count the proceeds.   See Hayes,
15 F.3d at 127 (grinder, baggies, and digital scale stored in locker
supported finding that locker related to drug-activity).    Payne had also
stipulated that he was involved in a conspiracy to distribute cocaine in
the St. Louis area over a five month period.




                                     7
       These factual circumstances distinguish this case from those that
Payne cites.       In United States v. Shields, 44 F.3d 673, 674 (8th Cir.
1995), and United States v. Khang, 904 F.2d 1219, 1220-21 (8th Cir. 1990),
the government stipulated that the firearms there had no relationship to
the crime, a crucial fact not present here.               Moreover, in Shields the
firearms were not seized until thirty seven days after the last known drug
transaction, and in Khang the defendant had purchased the weapon years
before to protect his family against violence in their housing project.
In contrast, Payne was discovered in possession of the rifle within the
hour that Tohill turned over the packages for distribution.                    As Officer
Busalaki testified, it is well recognized that firearms such as the
semiautomatic rifle found in Payne's room are tools of the drug dealer's
trade.   See United States v. Turpin, 920 F.2d 1377, 1387, cert. denied,
Williams v. U.S., 499 U.S. 953 (1991); accord Hayes, 15 F.3d at 127.                   There
was   thus     ample   evidence   connecting    the    rifle   to    the    charged       drug
conspiracy.


       Finally, Payne contends that the "unless clearly improbable" standard
of proof violates the due process clause of the Fifth Amendment.                       Since
Payne concedes that he did not raise this claim in the district court, he
has failed properly to preserve the issue for appeal.                See United States
v.    White,     890   F.2d   1033,   1034     (8th    Cir.    1989)       (claim    as     to
constitutionality of sentencing enhancement statute not raised below was
not properly before appellate court);           accord Bost, 968 F.2d at 734 n.4.



       Payne's due process claim would not succeed in any event.                    He does
not claim he was deprived of procedural due process safeguards required in
sentencing hearings:       representation by counsel and an opportunity to be
heard, cross-examine witnesses, and present evidence.                See United States
v. Luster, 896 F.2d 1122, 1129 (8th Cir. 1990) (holding that use of
§ 2D1.1(b)(1) did not violate defendant's due process rights where these
safeguards      were   satisfied).     Rather,    he    argues      that    the     "clearly
improbable"




                                          8
standard in the application note to § 2D1.1(b)(1) permits enhancement on
"a mere modicum of evidence," and that the government should be required
to show by a preponderance of the evidence that the weapon is connected to
the offense.


     The suggested preponderance standard is already required in this
circuit, and the government presented sufficient evidence to meet its
burden of proof.       See Hayes, 15 F.3d at 127.           The "unless clearly
improbable" language does not shift the burden of proof to the defendant;
the government must prove by a preponderance of the evidence that the
weapon is connected to the offense.            See Khang, 904 F.2d at 1223 n.7.
Here, two government agents testified at the sentencing hearing that the
rifle was found in an apartment used by the conspirators to store cocaine
and drug proceeds.     Eason told authorities that he and Payne used the
apartment for this purpose, and Payne stipulated that he was a member of
the conspiracy to possess and distribute cocaine.           A money counter and a
quantity of money were found at the apartment where Payne was seen close
to the rifle near the time when the attempted drug delivery was en route.


     This evidence was sufficient to satisfy the preponderance burden of
proof, and the imposition of the § 2D1.1(b)(1) enhancement was therefore
not based on an improper presumption or mere modicum of evidence.               See
United   States   v.   Stewart,   926    F.2d    899,   900-01   (9th   Cir.   1991)
(§ 2D1.1(b)(1) does not create an improper presumption that the enhancement
should apply); accord United States v. Durrive, 902 F.2d 1221, 1230-31 (7th
Cir. 1990); United States v. McGhee, 882 F.2d 1095, 1097-99 (6th Cir.
1989).
                                        III.


     Payne also claims that he was entitled to a downward departure from
the sentencing guidelines pursuant to § 4A1.3 because Criminal History
Category II overstated his prior criminal record.




                                         9
     A district court may depart downward from the applicable guidelines
range where "a defendant's criminal history category significantly over-
represents the seriousness of a defendant's criminal history."       U.S.S.G.
§ 4A1.3.   For example, departure from Category II may be appropriate for
a defendant with two minor misdemeanor convictions close to ten years prior
to the instant offense who has no other evidence of prior criminal behavior
in the intervening period.    Id.   This court has jurisdiction to review a
refusal to depart downward under § 4A1.3 only where the sentencing court
was unaware of its authority to depart.      See United States v. Hall, 7 F.3d
1394, 1396 (8th Cir. 1993).


     The    presentence   report     (PSR)     specifically   addressed   the
appropriateness of a downward departure under § 4A1.3.     It noted that Payne
had two serious juvenile offenses which had not been counted, that his
adult conviction for possession of a controlled substance was similar to
the instant offense, and that he had an outstanding warrant for violating
probation on his second adult conviction for driving with a suspended
license in March 1994.    The PSR concluded that Category II "does not
overstate the seriousness of the defendant's criminal record" and "that
there is a likelihood that the defendant will commit further crimes."      It
found "no downward departure issues in this case."


     At the sentencing hearing, the court heard arguments from both
parties as to whether it should depart downward.     Payne's counsel described
Payne as a young man with only two municipal ordinance violations.        The
government pointed out that Category I was only appropriate for individuals
with either no criminal record or only a minor blemish, whereas Payne had
a total of four criminal incidents, two of which had involved narcotics.



     Judge Limbaugh then indicated that he would not depart downward based
on an insufficient showing that such a departure was warranted.      He first
stated that he had considered the "comments of




                                     10
counsel, and the entire file in this matter, together with the provisions
in the report of the probation officer."                 Sent. Tr. at 74.     He then
concluded that "I am going to determine that under all of the circumstances
in this case that it is inappropriate for the Court to depart downward in
this matter."        Id.


        In the course of his comments, Judge Limbaugh also noted that "even
if I were inclined to [depart], I am not certain that I have the actual
authority to."       Id. at 74-75.    Payne suggests that this comment means Judge
Limbaugh did not know he had the authority to depart.            Since Payne did not
raise any question or comment about this statement at the hearing, Judge
Limbaugh did not have the opportunity to expand on his full meaning.                The
overall context of the judge's statements, however, indicates that he was
aware of his authority to depart, but chose not to do so based on the
merits of Payne's request, concluding that departure was inappropriate
based    on   "all    of   the   information"   before    him.   We    therefore   lack
jurisdiction to review the decision to depart downward.               See Hall, 7 F.3d
at 1396.


        Accordingly, the judgment and sentence are affirmed.


        A true copy.


               Attest:


                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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