           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 22, 2009

                                     No. 07-60506                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

TIMOTHY L. STACKER

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:05-CR-121-1


Before HIGGINBOTHAM, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Timothy Stacker appeals the sentence imposed following his guilty plea
to two counts of being a felon in possession of a firearm and one count of
possession with intent to distribute a mixture and substance containing cocaine
base. Stacker argues that the district court erred by enhancing his sentence
pursuant to U.S.S.G. § 2D1.1(b)(1), which applies where a “dangerous weapon
(including a firearm) was possessed,” because when police searched his house a


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                          No. 07-60506

pistol was found in a separate room from the cocaine and drug paraphernalia.
He argues that the district court erred in finding the weapon was “accessible.”
       When reviewing for procedural error in the application of the Guidelines,
we examine the district court's interpretation or application of the Guidelines de
novo, and its factual findings for clear error.1             A § 2D1.1 enhancement is
appropriate if a weapon is present “unless it is clearly improbable that the
weapon was connected with the offense.”2
       In United States v. McKeever,3 this Court affirmed a § 2D1.1 enhancement
even though the weapons were not in the same room as the drugs: “While it is
true that none of these weapons was discovered in the laboratory area, the judge
was entitled to infer that they were still ‘present’ within the meaning of
Application Note 3.” Here, the record establishes that an operational .380
caliber pistol was found in Stacker’s residence the day after Stacker had sold
illegal drugs from the residence. It is not clearly improbable that the weapon
was connected with the offense.4
       AFFIRMED.




       1
           U.S. v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008).
       2
           U.S.S.G. § 2D1.1, comment 3.
       3
           906 F.2d 129, 134 (5th Cir. 1990).
      4
        U.S.S.G. § 2D1.1, comment 3 states that the enhancement would not apply if the
defendant “had an unloaded hunting rifle in the closet.” That is not the case here. Stacker
had an operational pistol in a room in the house.

                                                2
