                            United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

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                                    No. 00-4045

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United States of America,                 *
                                          *
                   Appellee               *
                                          *   Appeal from the United States
                                          *   District Court for the
      v.                                  *   Western District of Missouri
                                          *
Juan Martinez,                            *
                                          *
                   Appellant              *

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                                 Submitted : May 18, 2001

                                 Filed:   August 3, 2001

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Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and BARNES,1 District
Judge

                                 ____________

BARNES, District Judge.


      1
        The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas, sitting by designation.
      Defendant/Appellant Juan Enrique Martinez appeals the district court’s2
sentencing decision to enhance his offense level by 4 for possession of a firearm in
connection with another felony offense, pursuant to § 2K2.1(b)(5) of the sentencing
guidelines. Because we find no clear error in the district court’s application of the §
2K2.1(b)(5) enhancement, we affirm.

                                             I.
       On March 7, 1994, Martinez was charged by indictment with 5 counts of being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922. The plea agreement
provided that Defendant would plead guilty to Count 1 and that Counts 2, 3, 4, and 5
would be considered relevant conduct. Martinez pleaded guilty to Count 1 pursuant
to the plea agreement and was sentenced on December 11, 2000. Martinez was
incarcerated in Florida on other charges during the time lapse between the March 1994
indictment and the December 2000 sentencing.

        At the sentencing hearing, ATF Special Agent Steven Neal Wilson testified
regarding the evidence developed in his investigation of Defendant. Wilson testified
that the presentence report accurately reflected the investigative file. Count 3 stated
that on April 21, 1993 officers executed a search warrant at the residence of Martinez’s
girlfriend, 350 East Armour, Kansas City, Missouri, and found approximately 16 grams
of crack cocaine, 22 grams of another white powdery substance, and a .45 caliber Colt
semi-automatic pistol. The drugs were found in the living room and the hall closet, and
the firearm was found on top of a wooden chest in the dining room. While the officers
were still executing the warrant, Martinez, who had a key, returned to the apartment
and told police that his girlfriend, Leda Pautaleon, lived in the apartment. Police
arrested Martinez for possession of crack cocaine and found $618 cash.
        Agent Wilson testified to at least four other instances in which Martinez was


      2
      The Honorable Fernando Gaitan, Jr., United States District Judge for the
Western District of Missouri.
                                           2
found in possession of firearms during a period of time from November 17, 1992
through August 21, 1993, in which he was also found to be in possession of illegal
drugs including crack cocaine, cocaine, and marijuana. (PSI, ¶¶ 7-15). On April 6,
1993, the narcotics unit in Kansas City, Missouri was contacted by a Tennessee
narcotics enforcement officer who reported that Martinez and a woman named Leda
Pautaleon were driving to Florida to pick up a shipment of cocaine when their car broke
down.

        At Martinez’ sentencing hearing, the district court stated that it “would appear
that if there was a true narcotics violation that the defendant would have been charged
with a narcotics offense” but that “directly and indirectly the guns are part of the
business of dealing in narcotics, so usually when you see one, you see the other.” The
district court found that the government had proven the enhancement by a
preponderance of the evidence and applied the 4 level enhancement for a total offense
level of 23, which resulted in a sentence of 92 months.

                                           II.
       We review the district court’s ruling de novo for clear error. See States v.
James, 172 F.3d 588 (8th Cir. 1999). To calculate offense level, the Sentencing
Guidelines, § 2K2.1(b)(5) require: “If the defendant used or possessed any firearm or
ammunition in connection with another felony offense . . . increase by 4 levels.” The
thrust of Defendant’s argument is that insufficient evidence was presented to prove that
any firearms were possessed “in connection with” a felony offense.

      We observed in United States v. Regans, 125 F.3d 685, 686 (8th Cir. 1997), that
the Guidelines do not attempt to define the term “in connection with.” Adopting an
ordinary meaning approach, most circuits have concluded that the phrase "should be




                                           3
construed as equivalent to the 'in relation to' language of 18 U.S.C. § 924(c)(1).3" See
Regans, 125 F.3d at 686 (citing United States v. Spurgeon, 117 F.3d 641, 643-44 (2d
Cir. 1997). Equating the two is convenient because the Supreme Court has clarified
the meaning of "in relation to" in § 924(c)(1): The phrase "in relation to" thus, at a
minimum, clarifies that the firearm must have some purpose or effect with respect to
the drug trafficking crime; its presence or involvement cannot be the result of accident
or coincidence . . . . Instead, the gun at least must "facilitat[e], or ha[ve] the potential
of facilitating," the drug trafficking offense. Regans, 125 F.3d at 686 (quoting Smith
v. United States, 508 U.S. 223, 238, 113 S.Ct. 2050, 2058-59, 124 L.Ed.2d 138
(1993)). See also, U.S. v. Bunner, 134 F.3d 1000, 1006 (10th Cir. 1998)(“We have
generally held that if the weapon facilitated or had the potential to facilitate the
underlying felony, then enhancement under § 2K2.1(b)(5) is appropriate.”).

       In Regans, we affirmed the district court’s § 2K2.1(b)(5) enhancement where the
defendant possessed a firearm at the same time he was in possession of a small amount
of heroin for personal use. Regans, 125 F.3d at 686. This enhancement, and other
Guidelines provisions such as § 2D1.1(b)(1), are based in part on the increased risk of
violence whenever guns are in the possession of persons engaged in committing drug
felonies. See id., United States v. Condren, 18 F.3d 1190, 1195-98 (5th Cir.1994).

      We also affirmed a § 2K2.1(b)(5) enhancement in United States v. Johnson, 60
F.3d 422 (8th Cir.1995), a case in which a drug dealer was arrested with a firearm,
crack cocaine, and drug paraphernalia in his home. We commented that a "weapon's
physical proximity to narcotics may be sufficient to provide the nexus required between


       3
        18 U.S.C. § 924(c)(1) provides enhanced penalties for. . . [a]ny person who,
during and in relation to any crime of violence or drug trafficking crime . . . uses or
carries a firearm, or who, in furtherance of any such crime, possesses a firearm . . .”



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the weapon and the drug charges." Id. at 423, (quoting United States v. Gomez-
Arrellano, 5 F.3d 464, 466-67 (10th Cir.1993)); see also, U.S. v. Peterson, 233 F.3d
101, 111 (1st Cir. 2000) ([W]e will find that a firearm has been used "in connection
with" an offense "if the possession has 'the potential to aid or facilitate' the other crime.
. . . We have not even required physical proximity between the firearms and the
narcotics.)

                                          III.
       We find that the events supporting Count 3, which occurred on April 21, 1993
at 350 East Armour, Apt. 602, Kansas City, Missouri, are sufficient in themselves to
support the 4 level increase. The firearm was laid on top of a chest in the dining room
of the apartment where drugs were found. The accessible placement of the firearm
easily supports the government’s contention that the firearm was used to facilitate drug
trafficking or intended to protect the drugs or Defendant himself based on his
involvement in a drug enterprise, whether successful or failed. This finding is further
supported by the evidence presented at sentencing of the continuing involvement by
Defendant with illegal drugs and his possession of at least 4 other firearms, all within
a continuous period of 10 months.

       The evidence presented by Agent Wilson is particularly relevant to the
enhancement since Defendant agreed in his plea agreement that Counts 2 through 5 of
the indictment would be considered as relevant conduct for sentencing purposes. We
find no error where the district court found that the government proved by a
preponderance of the evidence that Martinez’s possession of the gun on April 21, 1993
was “in connection with” another drug felony, even though he was not charged with
another drug felony at the time. We affirm the district court’s decision to apply the §
2K2.1(b)(5) enhancement.




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A true copy.

      Attest:

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




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