                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                        OCT 20 1999
                  UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

             v.                                        No. 98-6452

 ALFRED ANDRE DICKERSON,

       Defendant-Appellant.




             APPEAL FROM UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF OKLAHOMA
                        (D.C. No. CR-97-195-T)


J. David Ogle, of Martin Law Office, Oklahoma City, Oklahoma, for the
appellant.

Kim Kakish, Assistant United States Attorney (Patrick M. Ryan, United States
Attorney, with her on the brief), Oklahoma City, Oklahoma, for the appellee.


Before ANDERSON, BRORBY, and BRISCOE, Circuit Judges.


BRISCOE, Circuit Judge.


      Defendant Alfred Andre Dickerson appeals his conviction and sentence for

managing or controlling a building and making it available for use for the purpose
of illegal drug activity in violation of 21 U.S.C. § 856(a)(2). We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                           I.

      In the fall of 1994, Oklahoma City police began investigating Dickerson as

a possible supplier of crack cocaine. On October 21, 1994, the police obtained a

“knock and announce” search warrant for Dickerson’s residence in Oklahoma

City. At approximately 9:47 p.m., a group of eleven officers, all wearing some

type of clothing identifying them as police, arrived at Dickerson’s residence to

execute the warrant. To the officers’ surprise, they saw Dickerson coming out the

front door of the house and three or four persons in a vehicle parked in the

driveway. In order to secure all of these individuals, one officer approached the

front porch of the house while two or three officers approached the vehicle. The

officer who approached Dickerson on the front porch announced her identity and

attempted to physically secure him. Dickerson kicked the officer off the porch

and began running away from the house. Other officers yelled at Dickerson to

“halt.” Ultimately, he was corralled by officers in the street and, after a brief

fight, was arrested. As for the occupants of the vehicle, officers secured them

after loudly announcing they were police officers and yelling, “Keep your hands

up.” Record Vol. IV, at 18.

      Lieutenant Robert Biby, the officer in charge of the search, concluded the


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remaining occupants inside the house likely had heard the yelling and commotion

through the partially open front door and had been alerted to the presence of

police officers. Accordingly, he decided to dispense with the “knock and

announce” requirement. Although he had no specific information indicating there

were firearms inside the house, he was concerned the occupants might have

firearms and use them against the officers. He also was concerned there would be

an opportunity for the occupants to destroy any drugs inside the house.

According to Biby, it was very easy to dispose of crack cocaine in the quantity

alleged to have been distributed by Dickerson (i.e., $20 rock size).

       In accordance with Biby’s directions, four or five officers went into the

house without knocking or waiting for a response from the remaining occupants.

The officers loudly announced, “Police, search warrant,” as they crossed the

threshold of the house.   Id. at 21. During the ensuing search of the house,

officers discovered approximately 196 grams of crack cocaine, a large quantity of

cash, and firearms.

       Dickerson was indicted on various drug-related offenses. His motion to

suppress evidence obtained during the search of his residence was denied and he

entered into a conditional plea agreement with the government. In connection

with that agreement, a superseding information was filed charging him with one

count of knowingly and intentionally making available for use a residence for the


                                          -3-
purpose of unlawfully distributing crack cocaine in violation of 21 U.S.C.

§ 856(a)(2). Dickerson pleaded guilty to that single charge and was subsequently

sentenced to a term of imprisonment of 151 months.

                                          II.

Denial of motion to suppress

       Dickerson contends the district court erred in denying his motion to

suppress evidence obtained during the search of his residence. According to

Dickerson, the officers violated the terms of the “knock and announce” search

warrant by entering his residence without first knocking or waiting for the

remaining occupants to respond. Dickerson further argues there were no exigent

circumstances that allowed the officers to ignore the “knock and announce”

requirement of the warrant. He also argues the officers violated Oklahoma law

because the warrant was executed after 10:00 p.m.   1



       In reviewing the denial of a motion to suppress, we view the evidence in

the light most favorable to the government and accept the district court’s factual

findings unless clearly erroneous.   United States v. Green , 178 F.3d 1099, 1104

(10th Cir. 1999) . The ultimate determination of reasonableness under the Fourth


       1
         Dickerson also contends the officers had no knowledge, at the time of
their entry, that third parties were present in the house. Because, however, this
factual argument was not asserted in the district court, we do not address it on
appeal. United States v. Gilkey , 118 F.3d 702 (10th Cir. 1997) (“Factual disputes
not raised below are waived.”).

                                          -4-
Amendment is a question of law we review de novo, considering the totality of

the circumstances.     Id.

      The issue here is whether the failure on the part of the officers to knock

and announce their presence before seeking entry to Dickerson’s residence

rendered the ensuing search and seizure of evidence constitutionally

unreasonable. In Wilson v. Arkansas , 514 U.S. 927, 929 (1995), the Supreme

Court held that “the common-law ‘knock and announce’ principle forms a part of

the reasonableness inquiry under the Fourth Amendment.” The Court was careful

to point out, however, that “the common-law principle of announcement was

never stated as an inflexible rule requiring announcement under all

circumstances.”      Id. at 934. Indeed, when justified by exigent circumstances,

such as those “presenting a threat of physical violence” or “where police officers

have reason to believe that evidence would likely be destroyed if advance notice

were given,” the presumption in favor of announcement must yield.       Id. at 936;

see also Richards v. Wisconsin , 520 U.S. 385, 394 (1997) (“In order to justify a

‘no-knock’ entry, the police must have a reasonable suspicion that knocking and

announcing their presence, under the particular circumstances, would be

dangerous or futile, or that it would inhibit the effective investigation of the crime

by, for example, allowing the destruction of evidence.”).




                                            -5-
      The district court, in rejecting Dickerson’s motion to suppress, concluded

that exigent circumstances justified the “no-knock” entry into Dickerson’s

residence. In reaching this conclusion, the court made two important subsidiary

factual findings. First, the court found that the remaining adult occupants of the

house, two of whom were in the living room at the front of the house, were

alerted to the presence of the police because of the activities that occurred

immediately outside the house prior to entry (i.e., the arrest of Dickerson and the

securing of the individuals in the vehicle). Second, the court found it was

reasonable for Biby “to believe that the officers’ safety was compromised and that

evidence could be destroyed if further delay occurred.” Record Vol. I, Doc. 74, at

6.

      Having carefully examined the transcript of the suppression hearing, we

conclude the district court’s factual findings are well supported by the evidence.

It was essentially uncontroverted that the officers who executed the warrant yelled

loudly during their chase and arrest of Dickerson, loudly announced their

presence to the occupants of the vehicle in the driveway, and wore clothing that

clearly identified them as law enforcement officers. Further, it was

uncontroverted that the front door of the residence was partially open during all

of these events. Taken together, this evidence was clearly sufficient to support

Biby’s belief that any remaining occupants of the house were aware of the


                                         -6-
officers’ presence. Although Dickerson’s mother, one of the two adults found by

the officers in the living room of the house, testified she was not aware of the

officers until they entered the house, her testimony was obviously rejected by the

district court as lacking credibility. Even assuming arguendo that her testimony

was truthful, the proper focus is on what Biby reasonably believed at the time he

decided to dispense with the “knock and announce” requirement and not on

whether the occupants of the house were actually aware of the presence of the

officers. See Richards , 520 U.S. at 394 (stating that focus is on whether the

police had “reasonable suspicion” that knocking and announcing would be

dangerous or futile, or would inhibit effective investigation).

      Based upon these facts, we conclude that exigent circumstances justified

the no-knock entry into Dickerson’s residence.   See United States v. Dahlman , 13

F.3d 1391, 1398 (10th Cir. 1993) (holding that whether exigent circumstances

justify a “no-knock” entry is a mixed question of law and fact subject to de novo

review). In particular, given Biby’s reasonable suspicion that any remaining

occupants of the house were aware of the officers’ presence, we conclude it was

likewise reasonable for him to believe those occupants might attempt to

immediately destroy any drugs in the house. The possibility of evidence being

destroyed created exigent circumstances that allowed the police to enter the house




                                          -7-
without first knocking and announcing.      2



       Dickerson’s argument that the search occurred after 10:00 p.m. and thereby

violated Oklahoma law is without merit. First, the district court found that the

search occurred prior to 10:00 p.m., and this finding is not clearly erroneous

given the evidence presented at the suppression hearing.          See Record IV, at 20-21

(indicating police arrived at 9:47 p.m. and secured Dickerson and the other

individuals outside the house in less than a minute). In any event, “[i]t is . . . well

established in this circuit that ‘in federal prosecutions the test of reasonableness

in relation to the Fourth Amendment . . . must be determined by Federal law even

though the police actions are those of state police officers.’”      United States v. Le ,

173 F.3d 1258, 1264 (10th Cir. 1999) (quoting         United States v. Miller , 452 F.2d

731, 733 (10th Cir. 1971)). This is because “‘the exclusionary rule is only

concerned with deterring [federal] Constitutional violations.’”        Id. (quoting United

States v. Wright , 16 F.3d 1429, 1437 (6th Cir. 1994)). Thus, “the fact that the

arrest, search, or seizure may have violated state law is irrelevant as long as the

standards developed under the Federal Constitution were not offended.”           Id.

(citation omitted).




       2
         Having concluded that Biby’s concerns about destruction of evidence
justified the “no-knock” entry, we find it unnecessary to decide whether his
concerns about officer safety also justified the entry.

                                                -8-
Application of U.S.S.G. § 2D1.1(b)(1)

      During the search of Dickerson’s residence, officers found a loaded

handgun under the cushion of a chair in the living room and a loaded rifle in one

of the bedrooms. Based upon the presence of these firearms, the district court

increased Dickerson’s offense level by two points pursuant to U.S.S.G.

§ 2D1.1(b)(1). Dickerson challenges this enhancement, claiming the evidence

presented by the government was insufficient to establish a connection between

him and the firearms. We review the district court’s interpretation of

§ 2D1.1(b)(1) de novo and the court’s underlying factual findings for clear error.

United States v. Vaziri , 164 F.3d 556, 568 (10th Cir. 1999).

      Section 2D1.1(b)(1), which applies to the “unlawful manufacturing,

importing, exporting, or trafficking” of drugs, directs a sentencing court to

increase a defendant’s base offense level by two levels “[i]f a dangerous weapon

(including a firearm) was possessed.” The commentary states that “[t]he

enhancement for weapon possession reflects the increased danger of violence

when drug traffickers possess weapons.” U.S.S.G. § 2D1.1 comment. (n.3). The

commentary additionally provides that “[t]he adjustment should be applied if the

weapon was present, unless it is clearly improbable that the weapon was

connected with the offense.”   Id. Consistent with the commentary, we have held

that the government bears the initial burden of proving possession by a


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preponderance of the evidence, and proof of possession may be established by

showing mere proximity to the offense.     See Vaziri , 164 F.3d at 568; United

States v. Roberts , 980 F.2d 645, 647 (10th Cir. 1992). The enhancement is

appropriate unless the defendant proves it is clearly improbable the weapon was

connected with the offense.    See Vaziri , 164 F.3d at 568.

      Having reviewed the record on appeal, we conclude the government

satisfied its burden of proving possession. In particular, it was uncontroverted

that two loaded firearms were found in Dickerson’s residence at the time of the

search. Although neither firearm was located in the same room as the large

quantity of crack cocaine seized by the officers, both firearms were located in

relatively close proximity to that room. Moreover, the handgun was found

alongside a crack pipe containing crack residue, and similar drug paraphernalia

were scattered throughout the house.     See United States v. Flores , 149 F.3d 1272,

1280 (10th Cir. 1998) (finding that the requisite nexus may be established by

showing weapon was located near the general location where drugs or drug

paraphernalia was stored or where part of transaction occurred),    cert. denied , 119

S. Ct. 849 (1999). Finally, and perhaps most important, the firearms, drugs, and

drug paraphernalia were all located inside the house which Dickerson, through his

guilty plea, acknowledged he possessed and allowed others to use for drug

trafficking activities. In other words, because Dickerson’s guilty plea effectively


                                           -10-
indicated his entire house was used for drug trafficking activities, the presence of

the firearms inside the house was sufficient to establish possession for purposes

of § 2D1.1(b)(1).

       To the extent Dickerson is arguing the government failed to prove he

personally had actual or constructive possession of the firearms, the argument is

irrelevant. As applied here, the focus of § 2D1.1(b)(1) is whether Dickerson

possessed a firearm in connection with the offense to which he pleaded guilty,

that is, whether Dickerson violated 21 U.S.C. § 856(a)(2) by controlling a

building and making it available for use for the purpose of illegal drug activity.

By its very nature, the offense of conviction involved the participation of other

persons. More specifically, in order to violate § 856(a)(2), Dickerson had to

provide the house or building and other parties had to use the house to engage in

drug trafficking activity.   See United States v. Banks , 987 F.2d 463, 465-66 (7th

Cir. 1993). For purposes of sentencing, then, Dickerson can be held accountable

for any reasonably foreseeable activities engaged in by the parties using his house

for drug trafficking activities, including the possession of firearms.     See U.S.S.G.

§ 1B1.3(a)(1)(B) (in a case involving jointly undertaken criminal activity,

relevant conduct includes “all reasonably foreseeable acts and omissions of others

in furtherance of the jointly undertaken criminal activity”);      United States v.

Smith , 131 F.3d 1392, 1400 (10th Cir. 1997) (sentencing court may attribute to


                                            -11-
defendant firearms possessed by his codefendants if the possession was

reasonably foreseeable to defendant),   cert. denied , 118 S. Ct. 1109 (1998);   Banks ,

987 F.2d at 468 (citing cases holding that possession of a firearm in a drug

transaction is reasonably foreseeable for purposes of § 1B1.3(a)(1)(B)).

       Ultimately, because Dickerson failed to present any evidence demonstrating

the firearms were not connected with the drug trafficking activities that occurred

in his house, we conclude the district court properly applied the two-level

sentence enhancement under § 2D1.1(b)(1).



Applicability of U.S.S.G. § 2D1.8(a)(2)

       In his final argument, Dickerson contends the district court should have

applied the provisions of U.S.S.G. § 2D1.8(a)(2) and capped his base offense

level at 16 because he did not personally participate in the drug trafficking

offenses that took place at his house. As previously noted, we review the district

court’s interpretation of the guidelines de novo and the court’s subsidiary factual

findings for clear error.   See United States v. Davis , 182 F.3d 1201, 1202 (10th

Cir. 1999).

       Section 2D1.8(a) governs the calculation of the base offense level for a

defendant charged with violating § 856(a)(2) and provides:




                                          -12-
      (a) Base Offense Level:
            (1)   The offense level from § 2D1.1 applicable to the
                  underlying controlled substance offense, except as
                  provided below.
            (2)   If the defendant had no participation in the underlying
                  controlled substance offense other than allowing use of
                  the premises, the offense level shall be 4 levels less than
                  the offense level from § 2D1.1 applicable to the
                  underlying controlled substance offense, but not greater
                  than level 16.

The commentary to § 2D1.8 provides further insight on calculating a defendant’s

base offense level:

              Subsection (a)(2) does not apply unless the defendant had no
      participation in the underlying controlled substance offense other
      than allowing use of the premises. For example, subsection (a)(2)
      would not apply to a defendant who possessed a dangerous weapon in
      connection with the offense, a defendant who guarded the cache of
      controlled substances, a defendant who arranged for the use of the
      premises for the purpose of facilitating a drug transaction, a
      defendant who allowed the use of more than one premises, a
      defendant who made telephone calls to facilitate the underlying
      controlled substance offense, or a defendant who otherwise assisted
      in the commission of the underlying controlled substance offense.
      Furthermore, subsection (a)(2) does not apply unless the defendant
      initially leased, rented, purchased, or otherwise acquired a possessory
      interest in the premises for a legitimate purpose. Finally, subsection
      (a)(2) does not apply if the defendant had previously allowed any
      premises to be used as a drug establishment without regard to
      whether such prior misconduct resulted in a conviction.

U.S.S.G. § 2D1.8 comment. (n.1).

      Of the few published cases discussing § 2D1.8, none indicate whether the

defendant has the burden of proving the applicability of subsection (a)(2), or

whether the government has the burden of proving the inapplicability of

                                        -13-
subsection (a)(2). In light of the overall structure of the guideline, in particular

the fact that subsection (a)(1) effectively presumes that a defendant personally

participated in the underlying controlled substance offense, we conclude the

burden falls on a criminal defendant to prove he did not personally participate in

order to obtain the benefits of subsection (a)(2). See United States v. Kirk, 894

F.2d 1162, 1164 (10th Cir. 1990) (“The government shall bear the burden of proof

for sentence increases and the defendant shall bear the burden of proof for

sentence decreases.”); see also United States v. Onheiber, 173 F.3d 1254, 1258

(10th Cir. 1999) (defendant has the burden of establishing, for purposes of

reduction in base offense level, that he was a minor participant in offense).

      Reviewing the record on appeal, we conclude Dickerson failed to establish

he did not personally participate in the underlying controlled substance offense.

At the time of his arrest immediately prior to the search of his residence,

Dickerson was found to be in possession of approximately 17 grams of crack

cocaine (which he attempted to throw away when he briefly fled from the

officers). During the subsequent search of the house, police found 196 grams of

crack cocaine, approximately $6000 in cash, a small amount of marijuana, and a

mobile phone in the northwest bedroom of the house. Other evidence found in

the northwest bedroom, most notably a vehicle registration certificate found near

the crack cocaine, indicated the bedroom and its contents belonged to Dickerson.


                                          -14-
Based upon this evidence, it was entirely proper for the district court to refuse to

apply § 2D1.8(a)(2).

      The judgment of the district court is AFFIRMED.




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