                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0780n.06

                                   Case Nos. 09-1528, 09-1530                            FILED
                                                                                     Dec 22, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
HERSCHEL B. MINIFEE,                              )   WESTERN DISTRICT OF MICHIGAN
                                                  )
       Defendant-Appellant.                       )


       Before: MOORE, SUTTON and FRIEDMAN,* Circuit Judges.

       FRIEDMAN, Circuit Judge. In these two appeals, which we decide in a single opinion, the

appellant Herschel Brent Minifee challenges his sentences in two related cases. In No. 09-1528, he

contends that the district court improperly enhanced his sentence in a drug case to reflect his

possession of a gun during that offense. In No. 09-1530, he objects to the sentence imposed for

violating the terms of his supervised release under a prior sentence for possessing a firearm as a

convicted felon. We affirm both sentences.


                                          I - No. 09-1528


       A. Upon his guilty plea to conspiracy to distribute 100 kilograms or more of marijuana, in

violation of 21 U.S.C. §§ 846, 841, and possession of a firearm as a convicted felon, in violation of



       *
        Daniel M. Friedman, United States Court of Appeals for the Federal Circuit, sitting by
designation.
No. 09-1528, No. 09-1530
United States v. Herschel Brent Minifee

18 U.S.C. § 922(g), the United States District Court for the Western District of Michigan imposed

concurrent sentences on Minifee of 172 months for the marijuana conspiracy and 120 months for the

felon-in-possession charge.


       Minifee’s conviction followed a police investigation into the sale of large amounts of

marijuana and counterfeit goods. On searching Minifee’s home, police officers discovered a loaded

.22 caliber long-rifle semi-automatic handgun hidden under the mattress of a child’s crib. They also

discovered a digital scale in the kitchen. A trained “drug dog” indicated the presence of trace

amounts of unidentified narcotics on the scale. Several individuals told the officers that they bought

from and sold to Minifee large amounts of marijuana, totaling close to 200 pounds.


       At an evidentiary sentencing hearing, an FBI Special Agent stated that drug traffickers used

digital scales to separate large shipments of drugs into smaller amounts, and to verify their own

purchases. The Special Agent also testified that Burt Page reported delivering approximately two

pounds of marijuana to Minifee’s residence in December, 2007, and that Ronald Smith had seen

Minifee carrying a handgun at his residence and store.


       In determining Minifee’s sentence, the district court largely followed the recommendations

in the Presentence Report and made a number of adjustments to Minifee’s offense levels pursuant

to the United States Sentencing Guidelines. In the adjustment here challenged, the court increased

Minifee’s offense level for the drug offense by two levels for possessing a firearm during the drug

conspiracy, pursuant to Guidelines § 2D1.1(b)(1). It increased his offense level for the felony gun


                                                -2-
No. 09-1528, No. 09-1530
United States v. Herschel Brent Minifee

possession offense by four levels for possessing a firearm in connection with another felony,

pursuant to Guidelines § 2K2.1(b)(6). Under the Guidelines’ “grouping” provisions, which provide

that for counts covering overlapping conduct the sentence should be based upon the offense with the

highest Guidelines culpability level, Minifee’s sentence was based primarily on the drug offense.

The sentence for that offense (172 months) was concurrent with the felony-gun-possession sentence

(120 months).      Under the somewhat intricate calculations for determining these sentences,

elimination of the four-level enhancement would not change Minifee’s total sentence. In these

circumstances, we need not further consider the four-level enhancement or Minifee’s challenge to

it.


       Minifee objected to the Presentence Report’s proposed two-level enhancement for gun

possession. He contended that the evidence did not adequately link the gun found in his home to the

drug conspiracy.


       After receiving evidence and hearing argument, the district court overruled Minifee’s

objections and applied the enhancement. The court held that there was sufficient evidence that

Minifee “possessed” the gun during the drug conspiracy, as the Guidelines required for the

enhancement to apply. The court, however, imposed a longer term of imprisonment than the

Presentence Report had recommended because the recommendation did not “adequately reflect”

Minifee’s criminal history, since it did not include several of his felony convictions. In light of his

criminal history and “all of the [18 U.S.C. §] 3553 factors,” the court imposed concurrent sentences

of 172 months for the marijuana conspiracy and 120 months for the felon-in-possession charge.

                                                 -3-
No. 09-1528, No. 09-1530
United States v. Herschel Brent Minifee

       B. “A district court’s determination that the defendant possessed a firearm during a drug

offense is a factual finding that this court reviews under the clearly erroneous standard.” United

States v. Wheaton, 517 F.3d 350, 367 (6th Cir. 2008). As the case comes to us, the sole question is

whether the district court’s finding that Minifee possessed the firearm during the drug conspiracy

to which he pleaded guilty was clearly erroneous. It was not.


       Section 2D1.1(b)(1) of the Guidelines calls for a two-level increase in the sentence "[i]f a

dangerous weapon (including a firearm) was possessed" during a drug offense. The government

must show such possession "either actually or constructively.” United States v. Darwich, 337 F.3d

645, 665 (6th Cir. 2003). "Constructive possession of an item is the ownership, or dominion or

control over the item itself, or dominion over the premises where the item is located.” United States

v. Hill, 79 F.3d 1477, 1485 (6th Cir.1996).


       Although the Guidelines provision does not state what relationship between “possession” and

the crime of conviction is necessary to make the enhancement applicable, the Guidelines’

Application Note states: “The adjustment should be applied if the weapon was present, unless it is

clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1 cmt. n.3.

Once the government shows that the defendant possessed the weapon during the commission of the

crime, there is a presumption that the weapon was connected to the offense, unless the defendant can

demonstrate that “it is clearly improbable that the weapon was connected with the offense.” United

States v. Darwich, 337 F.3d 645, 665 (6th Cir. 2003). Thus, the requisite connection between the




                                                -4-
No. 09-1528, No. 09-1530
United States v. Herschel Brent Minifee

weapon and the crime is that the defendant must have “possessed” the weapon during commission

of the crime, i.e., when the defendant was engaging in the criminal conduct.


       The district court’s finding that Minifee “possessed” the gun during the drug conspiracy is

not clearly erroneous. The fully-loaded gun was found hidden under the mattress of a child’s crib

in his home. See United States v. Chalkias, 971 F.2d 1206, 1217 (6th Cir. 1992) (noting that strange

hiding places for guns may indicate concealment for an illegal purpose). The indictment charged

that the drug conspiracy operated from about December 2006 through April 9, 2008; the gun was

discovered in Minifee’s home on the latter date. There was a digital scale in the kitchen, a device

that the FBI Special Agent stated was used by drug traffickers, and it contained traces of an

unidentified drug. Finally, there was evidence that an individual had delivered approximately two

pounds of marijuana to Minifee’s residence in December 2007 (when the conspiracy was still

operating) and that another individual had seen Minifee carrying a handgun at his home and store.


       Minifee seeks to explain and justify his possession of the handgun as intended for self

protection, following a break-in at his home. This justification fails. Unlike the four-level

enhancement under Guidelines § 2K2.1(b)(6) for a felon who possesses a firearm “in connection

with another felony offense,” the Guideline involved here requires only that the defendant “possess”

the gun during the drug offense. Minifee has not shown that “it is clearly improbable” that the gun

“was connected with the offense.” Darwich, 337 F.3d at 665.




                                               -5-
No. 09-1528, No. 09-1530
United States v. Herschel Brent Minifee
       Based on the evidence, the district court’s finding that Minifee “possessed” the handgun

during the drug conspiracy was not clearly erroneous. The district court properly applied the

Guidelines’ two-level enhancement.


                                          II - No. 09-1530


       Prior to the drug conspiracy for which he was convicted in No. 09-1528, Minifee had been

convicted of being a felon in possession of a firearm. He was sentenced to 96 months of

imprisonment, followed by 36 months of supervised release. He completed his prison sentence and

began his supervised release in November 2005.


       After Minifee’s involvement in the drug conspiracy (which occurred during his supervised

release) was discovered, the government sought to revoke his supervised release because he had

violated its terms and to punish him for those violations.


       Following Minifee’s sentencing in No. 09-1528, the district court turned to the supervised-

release issue. Minifee admitted to the violations charged and the district court indicated that it

deemed 24 months of imprisonment an appropriate sentence for that misconduct. In response,

Minifee’s lawyer suggested only that the sentence run concurrently with the sentence just imposed.

The district court declined to do so, but provided that 12 months would run concurrently with, and

12 months consecutively to, the drug sentence.




                                                 -6-
No. 09-1528, No. 09-1530
United States v. Herschel Brent Minifee
        Minifee’s only objection to the supervised-release sentence is that it is “procedurally

unreasonable” because “the district court miscalculated the sentencing guidelines” in setting the

drug-case sentence. Our rejection of that contention in No. 09-1528 vitiates that argument and

requires its rejection.


                                          CONCLUSION


        The sentences in both cases are affirmed.




                                               -7-
