                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ____________

                              No. 98-1503, 98-1531
                                 ____________


Dennis D. Brown,                     *
                                     *
      Defendant-Appellant,           *
                                     *
v.                                   *
                                     *
United States of America,            *
                                     *
      Appellee.                      *    Appeals from the United States
                                     *    District Court for the
David Lawrence Hay,                  *    Southern District of Iowa
                                     *
      Defendant-Appellant,           *
                                     *
v.                                   *
                                     *
United States of America,            *
                                     *
      Appellee.                      *


                                 ____________

                                Submitted: November 19, 1998
                                    Filed: February 25, 1999
                                 ____________
Before BOWMAN, Chief Judge, LOKEN, Circuit Judge, and HAND,1 District
Judge.
                            ____________

HAND, District Judge:

      Appellants    pled   guilty    to   conspiracy   to   distribute   cocaine   and
methamphetamine in violation of 21 U.S.C. § 846.2 In addition, appellant Hay pled
guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1). Hay was sentenced to 86 months' imprisonment, while Brown received a
sentence of 108 months. On appeal, appellants challenge the District Court's
computation of the drug quantities attributable to them under the Sentencing
Guidelines, and challenge certain guideline enhancements applied to them. Having
given careful consideration to the appellants' claims, we affirm both sentences.


                           I. STANDARD OF REVIEW


      Our review of the district court's factual findings and its application of the
Sentencing Guidelines is limited to determining whether its conclusions were clearly
erroneous. United States v. Snoddy, 139 F.3d 1224, 1226 (8th Cir. 1998). We turn
now to the issues raised by the appellants.


                                    II. DISCUSSION


      1
      The Honorable William Brevard Hand, United States District Judge for the
Southern District of Alabama, sitting by designation.
      2
        Count 2 of the superseding indictment, to which both appellants pled
guilty, charged the appellants with conspiracy to distribute cocaine and
methamphetamine from about November 1, 1995 until November 20, 1996.

                                           2
      A.    Dangerous Weapon Enhancements Pursuant to U.S.S.G. § 2D1.1(b)(1)


      Both appellants received enhanced sentences because of possession of
dangerous weapons, namely firearms, in connection with their respective offenses.
We will affirm these enhancements.
      The relevant guideline provision is U.S.S.G. § 2D1.1(b)(1), which provides,
"If a dangerous weapon (including a firearm) was possessed, increase [the base
offense level] by 2 levels." The Sentencing Guidelines Manual explains 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. For example, the
enhancement would not be applied if the defendant, arrested at his residence, had an
unloaded hunting rifle in the closet." U.S.S.G. § 2D1.1, comment. (n. 3) (emphasis
supplied). In order to sustain an enhancement under 2D1.1(b)(1), "the government
must first show that the weapon was present, and second, that it was not clearly
improbable that the weapon had a nexus with the criminal activity." United States v.
Bost, 968 F.3d 729, 731 (8th Cir. 1992).
      (1)   Dennis Dean Brown
      In Brown's case, the district court applied the firearm enhancement on the basis
of firearms found and seized at the El Forastero clubhouse when search warrants were
executed there on November 20, 1996. Those firearms included a loaded Kurtz 9mm
handgun; a loaded double-barrel 12-gauge shotgun; a loaded .357 Magnum handgun;
a Ruger Mini-14 carbine, with loaded magazines nearby; an M-1 carbine, with
ammunition nearby; a Mossberg 12-gauge pistol-grip shotgun, with ammunition
nearby; and another 12-gauge shotgun. In addition, in Brown's living quarters, there
was found a single-shot 12-gauge shotgun and a box of 12-gauge shotgun shells.

                                           3
      Brown argues that the firearms were kept at the El Forastero clubhouse for club
security and had nothing to do with his illegal drug activities. However, we have
recognized that the use or intended use of firearms for one purpose, even if lawful,
does not preclude the use of the firearm for the prohibited purpose of facilitating the
drug trade, and therefore does not automatically remove the firearm from the purview
of U.S.S.G. § 2D1.1(b)(1). United States v. Rogers, 151 F.3d 851, 858 (8th Cir 1998)
("The fact that a gun is treated 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.").
      In fact, the Brown sentencing record suggests that Brown was willing to use
the firearms at the clubhouse in defense of his drug trafficking from law enforcement.
In an intercepted discussion between Brown and El Forastero leader Steve
Humphreys, Brown and Humphreys discussed a possible problem with law
enforcement and surveillance of the clubhouse. Brown commented that if a particular
person came to the door of the clubhouse, he would go out the back door and come
up behind the person "locked and loaded."
      Based on the number, type, and the state of readiness of the weapons found in
the El Forastero clubhouse, and the evidence of Brown's willingness to use the
firearms to defend his drug trafficking, we can not agree with Brown that the district
court "clearly erred" and that it was "clearly improbable" that the firearms were
related to the drug trafficking activities undertaken by Brown in and around the
clubhouse.
      (2)    David Lawrence Hay
      Hay's sentence was enhanced under 2D1.1(b)(1) due to a 26-piece firearm
collection he kept in a safe in his residence. The collection admittedly consisted of
some long guns, guns of a collector's nature, and some others not usually associated

                                          4
with criminal activity. However, also among the collection were a loaded AMT .45
caliber pistol, a loaded Browning 9mm pistol, a loaded Colt .45 caliber "Gold Cup"
pistol, and a loaded Savage Arms .410 shotgun. Hay contends that he should not
have received a dangerous weapon enhancement because these firearms, kept in a gun
safe on the main level of Hay's residence, were merely a collection, like his collection
of antique knives and scale models, and were therefore clearly unrelated to his drug
offenses. We affirm the firearm enhancement applied to Hay's sentence.
      The testimony of Craig Collins at Hay's sentencing hearing established that
Hay sold cocaine out of his house on a regular basis during the period of June or July
of 1994 through November 1996. Collins testified that he purchased cocaine from
Hay at his residence on 30 to 50 occasions during this time period. The cocaine sales
would be carried out either in the basement, or in the kitchen on the same level of the
house on which the safe was kept. Most of the time, Collins testified, Hay would
place the money from Collins' cocaine purchases inside the safe with the firearms.
Also, during the search of Hay's residence on November 20, 1996, agents searched
Hay's gun safe. Inside the gun safe, officers found a wooden box containing $3,505
in cash, mostly in $20, $10, and $5 bills. Among that currency, authorities were able
to identify by serial number four $20 bills that confidential informant Jerald Clausi
had used in a controlled buy of four ounces of cocaine and a smaller quantity of
methamphetamine on September 24. One of the loaded pistols in the safe was found
directly adjacent to this box.3



      3
       We note that Hay in his brief incorrectly states that he "kept unloaded
firearms in a locked safe on the first floor," while the record establishes that
several of the firearms were, in fact, loaded. He also states that "[n]o . . . drug
paraphernalia were in the safe" while in fact the safe contained at least $80 in
undisputed drug money.

                                           5
       We have previously noted that the close proximity of firearms and "drug
money" can give rise to an inference that the firearms are present to protect the money
and drugs, which is a nexus sufficient to support an enhancement under 2D1.1(b)(1).
United States v. Macklin, 104 F.3d 1046, 1048 (8th Cir. 1997).
       We believe that the government has satisfied its burden of proof under Bost,
supra, and appellant Hay has not proven that it is "clearly improbable" that any of his
firearms were related to his drug distribution activities. The district court did not
clearly err in finding that Hay possessed at least one firearm in connection with his
illegal activity.


       B. Drug Quantity Issues: U.S.S.G. § 2D1.1


       Both appellants argue that they should not be held accountable for the five
ounces of cocaine and five ounces of methamphetamine involved in the discussions
of November 19, 1996. Hay also argues that he should not be held accountable for
21.47 grams of actual methamphetamine found at co-conspirator Jeffrey Mitchell's
house.4
       During the late afternoon hours of November 19, 1996, Jerald Clausi made
several phone calls to Brown at the clubhouse in an attempt to set up a third and final
drug deal involving cocaine and methamphetamine. Clausi finally reached Brown,
and the two discussed a sale of five ounces of each drug. Clausi had been instructed
by law enforcement officers to delay the consummation of the deal until the next
morning; however, Brown stated that he could do the deal that very night. Clausi
informed Brown that he was out of Des Moines at the time, but that he could transact


       4
        21.47 grams is equivalent to approximately 0.76 ounces.

                                          6
the sale the next morning. Brown suggested that Clausi call him at 10 or 10:30 the
next day.
       Shortly after this conversation, Brown called Hay, and after some small talk,
stated, "I'm waiting for my kid to call me back," which agent Warford testified was
code language meaning that a drug deal was imminent. Hay replied, "Oh, waiting for
your kid to call you back? I see." Later, Brown called Hay again, informing him that
he was going to stop by Hay's residence shortly. Hay said, "Okay."
       Later, Jeffrey Mitchell called Steve Humphreys and stated, "Hey, Brown wants
to do the deal again." Co-conspirator Humphreys, apparently angered that Mitchell
was discussing the matter over the telephone, said, "Too bad. I'm not going to do it."
       With regard to the 10-ounce transaction, appellants argue that (1) a deal was
never made; (2) even if there was a deal, it was terminated by Humphreys; and (3)
even if the deal was not terminated, the amounts should not apply to them because
they were actually unable to supply the full amount of the drugs.
       We think the record evidence leads to a fair inference that an actual agreement
was in fact made for five ounces of cocaine and five ounces of methamphetamine, and
that both Brown and Hay assented to the transaction. Even if Humphreys did
ultimately deep-six the deal, the district court properly attributed these drug amounts
to Brown and Hay.
       We find worthy of discussion only appellants' argument that they were unable
to supply the full 10 ounces of controlled substance involved in the November 19
deal. All parties direct our attention to U.S.S.G. § 2D1.1, Application Note 12, which
states, in pertinent part:
              In an offense involving an agreement to sell a controlled
              substance, the agreed-upon quantity of the controlled
              substance shall be used to determine the offense level
              unless the sale is completed and the amount delivered more

                                          7
              accurately reflects the scale of the offense. . . . If,
              however, the defendant establishes that he or she did not
              intend to provide, or was not reasonably capable of
              providing, the agreed-upon quantity of the controlled
              substance, the court shall exclude from the offense level
              determination the amount of controlled substance that the
              defendant establishes that he or she did not intend to
              provide or was not reasonably capable of providing.

        According to the foregoing text, as an initial matter, the full 10 ounces of
cocaine and methamphetamine should apply, simply by virtue of an agreement to sell
that quantity of drugs, even though the agreement was never consummated. The 10
ounces involved in the November 19 agreement should not count only if the
appellants sustain their burden of proving that the conspiracy was not reasonably
capable of providing the full 10 ounces of drugs. See, e.g., United States v. Christian,
942 F.2d 363, 368 (6th Cir. 1991), United States v. Barnes, 993 F.2d 680 (9th Cir.
1993).
        Appellants argue that the conspiracy was not reasonably capable of providing
these amounts because (1) their methamphetamine source, Steve Humphreys, backed
out of the deal, and (2) even when government agents searched all of the parties
involved in the conspiracy, they failed to aggregate enough drugs to complete the
deal.
        The Government argues, and we agree, that the appellants have not shown that
they were incapable of providing the full 10 ounces, for two reasons. First, while
Brown was still on the phone with Clausi after making the deal, he stated that he
wanted to actually "do" the deal that night. This expression of intent to complete the
transaction belies defendants' present contention that they were unable to do so.
Second, the fact that the November 20 searches failed to produce the total 10 ounces
does not prove that Brown and Hay could not have produced the drugs. Clausi

                                           8
testified that Brown told him Brown had methamphetamine available in quarter-
pound (four-ounce) increments and that Brown could supply him with as much as he
needed. This statement establishes that the defendants' argument of inability to
supply the methamphetamine is without merit.
      For the foregoing reasons, we conclude that the district court did not clearly err
in holding both appellants accountable for the 5 ounces of cocaine and 5 ounces of
methamphetamine involved in the November 19 deal.
      We are mindful of the potential for abuse claimed by the appellants, to which
we alluded in the case of United States v. Foley, 906 F.2d 1261, 1265 (8th Cir.
1990).5 Such potential for executive abuse, particularly after the advent of guideline
sentencing, should never escape the independent scrutiny of the judiciary. However,
we are not persuaded that the appellants have been the victims of such abuse in this
case. The 10 ounces of drugs involved in the November 19 deal were not so far
beyond the scope of the established pattern of conduct envisioned by the conspiracy,
that exclusion of the agreed-upon drug amounts is justified.6
      Next, Hay attempts to acquit himself of the five ounces of methamphetamine

      5
        The guidelines may permit a downward departure in an analogous
situation: "If, in a reverse sting . . . , the court finds that the government agent set
a price for the controlled substance that was substantially below the market value
of the controlled substance, thereby leading to the defendant's purchase of a
significantly greater quantity of the controlled substance than his available
resources would have allowed him to purchase except for the artificially low price
set by the government agent, a downward departure may be warranted." U.S.S.G.
§2D1.1, comment. (n. 15) (1998).
      6
       Even if we were to accept this argument, total exclusion of the 10 ounces
might not be warranted. Instead, the more appropriate remedy may be to vacate
the judgement and remand for resentencing, with instructions to remit the agreed-
upon amount to an amount more closely approximating the established course of
conduct of the conspiracy taken as a whole.

                                           9
and the 21.47 grams of actual methamphetamine found at Jeffrey Mitchell's house on
November 20. He claims that he was merely the "cola guy"--the cocaine supplier--for
the conspiracy, and therefore should not be held accountable for the
methamphetamine. Hay's guilty plea, and facts to which he has stipulated, foreclose
this argument. Hay pled guilty to count 2 of the superceding indictment, which
charged conspiracy to distribute cocaine and methamphetamine. In addition, Hay
stipulated that he knew that the conspiracy was distributing cocaine and
methamphetamine, and that the conspiracy actually did distribute cocaine and d-
methamphetamine. Finally, traces of cocaine and methamphetamine were detected
on drug paraphernalia found at Hay's residence. We reject as factually unsupportable
Hay's argument that he was merely the "cola guy" for the conspiracy.


      C.     Obstruction-of-Justice Enhancement: U.S.S.G. § 3C1.1


      Finally, appellant Brown assigns as error the district court's addition of two
points to his offense level for obstruction of justice.
      The applicable guideline is U.S.S.G. § 3C1.1, which provides that:
             If the defendant willfully obstructed or impeded, or
             attempted to obstruct or impede, the administration of
             justice during the investigation, prosecution, or sentencing
             of the instant offense, increase the offense level by 2 levels.

      In support of this final assignment of error, Brown propounds two arguments.
First, he argues, his statements to the confidential informant do not rise to the level
of obstruction of justice. Second, he says that he can not receive an enhancement for
obstruction of justice if he did not know there was an ongoing investigation. We
reject both arguments.


                                           10
      As to Brown's first argument, we believe the nature and frequency of certain
threats made by Brown justify the obstruction-of-justice enhancement. The evidence
before the district court at sentencing established that Brown on one occasion opened
Clausi's shirt as if he was looking for a wire and told Clausi that if anything were to
happen to him there would be "hell to pay" from his "brothers." During another
transaction, Brown warned Clausi that if anything happened to him, "there would be
some people getting even." On a third occasion, inside the El Forastero clubhouse,
Brown passed or showed to Clausi a handwritten note, again to the effect that "there
would be hell to pay" if Clausi turned out to be working for the government.
      Obstruction of justice applies to "threatening, intimidating, or otherwise
unlawfully influencing a co-defendant, witness, or juror, directly or indirectly."
U.S.S.G. § 3C1.1, App. Note 3(a); also see United States v. McIntosh, 23 F.3d 1454,
1459 (8th Cir. 1994). The nature of Brown's statements would certainly have the
effect of chilling a reasonable person's cooperation with law enforcement authorities.
Therefore, we hold that the evidence adequately supports the imposition of the
enhancement under U.S.S.G. § 3C1.1.
      Second, Brown argues that he could not have obstructed justice, and therefore
should not have received the enhancement, if he did not have actual knowledge of an
ongoing criminal investigation. It is true that the guideline text incorporates a
requirement of "willful" conduct. Indeed, we have recognized that "the term
'willfully' should be reserved for the more serious case, where misconduct occurs with
knowledge of an investigation, or at least with a correct belief that an investigation
is probably underway." United States v. Oppedahl, 998 F.2d 584, 586 (8th Cir. 1993)
(emphasis supplied).
      The district court made a finding on the record that Brown held the belief that
an investigation was probably underway. Of course, this belief, if subjectively held,

                                          11
would have been correct. We hold that the district court's finding on this issue is
supported by ample evidence and is not clearly erroneous. It may be reasonably
inferred from Brown's pattern of conduct that he believed that an investigation was
"probably underway" and that Jerald Clausi was involved. Accordingly, the district
court did not clearly err in applying the obstruction of justice enhancement to Brown.


                                III. CONCLUSION


      For the foregoing reasons, we can not agree that the district court committed
clear error in any of the matters alleged by the appellants. The judgments of the
district court are AFFIRMED.


      A true copy.
             Attest:
                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         12
