
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1138                                    UNITED STATES,                                      Appellee,                                          v.                                  EVERTON THOMPSON,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. A. David Mazzone, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                              Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                _____________________               Owen S.  Walker, Federal Defender Office,  by Appointment of               _______________          the Court, for appellant.               Michael   J.  Pelgro,  Assistant   United  States  Attorney,               ____________________          Organized Crime Drug Enforcement Task Force,  with whom Donald K.                                                                  _________          Stern, United States Attorney, was on brief for appellee.          _____                                 ____________________                                   August 16, 1994                                 ____________________                    TORRUELLA,  Circuit  Judge.     A  federal  grand  jury                                ______________          returned  an   eleven-count   indictment  which   charged   seven          defendants, not including  defendant/appellant Everton  Thompson,          with conspiracy to distribute cocaine base from September 1991 to          June 1992, and other substantive drug distribution counts.  Count          Ten  of   the  indictment  charged  Thompson,   and  three  other          defendants,  with  the knowing  possession of  a handgun  with an          obliterated serial  number in  violation of 18  U.S.C.    922(k).          Thompson  pled guilty to Count  Ten.  At  the sentencing hearing,          the court determined that the applicable guideline was U.S.S.G.            2K2.1  (1990), and  found that  Thompson "used  or possessed  the          firearm   in  connection   with   the  commission   or  attempted          commission" of the  drug offenses.   The court therefore  applied          the  cross-reference provision  set  forth in    2K2.1(c)(2)  and          imputed  to Thompson a series  of drug offenses  committed by the          alleged conspiracy.  Thompson now challenges the district court's          interpretation  and  application of  U.S.S.G.   2K2.1(c)(2).   We          affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND                                        __________                    A.  Facts                    A.  Facts                    We cull  the facts from  unobjected to portions  of the          Presentence Report ("PSR") and from the government's statement of          evidence at the plea hearing.  United States v. Garc a, 954  F.2d                                         _____________    ______          12, 14 (1st Cir. 1992).                    This    case   involves   a   1991   Drug   Enforcement          Administration  ("DEA")  investigation  of  drug  trafficking  in                                         -2-          Dorchester, Massachusetts.     Codefendant David Jackson  was the          leader  of a  group of  persons who  were running  a  cocaine and          cocaine base  distribution enterprise out  of an apartment  at 49          Theodore Street in Dorchester.  During the investigation, the DEA          utilized  a confidential  informant  ("CI") who  purchased  large          quantities of cocaine and  cocaine base from various codefendants          at  49  Theodore Street,  engaged  in  negotiations with  various          codefendants  to purchase a  machine gun and  other firearms, and          purchased a handgun with an obliterated serial number.                    The  evidence established  the following  facts linking          Thompson to his codefendants.  On August  15 and September 9, the          CI made his first  two cocaine purchases, totalling approximately          250 grams, from two men, one of whom was defendant Charles Brown.          On September 24, 1991, Brown sold the CI 68 grams of cocaine base          and 43 grams of cocaine.  Brown told the CI that he might be able          to get him a Tech-9 firearm for $1000 and would  contact "the man          with the  guns."  On  September 25,  1991, the CI  placed a  drug          order with  Brown, and Brown mentioned that he was going to check          about obtaining the gun.                    On  October 2,  1991, Brown  took the  CI to  the first          floor apartment at 49 Theodore Street, where the CI observed drug          transactions and other drug activity.  Brown introduced the CI to          Jackson,  and told the  CI that Jackson  was the "boss."   The CI          paid  Jackson $8,500 and was thereupon given 227 grams of cocaine          base by defendant Roy Gray, who was also in the apartment.                    On  October 3, 1991, the  CI and Brown  had a telephone                                         -3-          conversation in which they discussed the "crack" which the CI had          purchased the  day before, and  the firearm Brown  had mentioned.          On  October  6,  1991,  the  CI  telephoned  the Theodore  Street          apartment and spoke  to a man  named "Henry."   The CI then  told          Henry to tell Brown to get a firearm for him.                    On  October 9, 1991, the CI went to the Theodore Street          apartment, but neither Brown  nor Jackson was there.   Brown then          arrived  at the apartment with Thompson, and Thompson told the CI          that Jackson  was not  there,  and asked  the CI  for his  beeper          number.    Shortly thereafter,  Jackson  arrived.   The  CI asked          Jackson if he could  buy a quarter kilogram of crack  and Jackson          replied that it would be no problem.  Jackson told the CI that he          could get  the CI anything  he wanted and that  he could get  a 9          millimeter pistol for the CI immediately.  Jackson stated that he          had to have  guns, and that  all of his  boys had guns.   Jackson          further informed the CI that a  Jamaican soldier sold guns to him          and was supposed to bring him a machine gun.  Jackson told the CI          that he  would sell  a  Tech-9 (firearm)  to  the CI  for  $1000.          Jackson  asked the  CI for  his beeper  number, and  the CI  told          Jackson that he had given the number to Thompson.                    On October 11, 1991,  Jackson, who presumably  received          the beeper number from Thompson, paged the CI.  The CI telephoned          Jackson, and Jackson said  that he had  to go somewhere and  that          the CI would have to deal with his brother, "Dean."  Jackson said          that he could get the CI any type of  gun, and that he had spoken          with his  gun contact the previous night.  Later that day, the CI                                         -4-          went to the  Theodore Street  apartment and bought  227 grams  of          crack from Dean for $8000.  Thompson and Gray were present at the          apartment, and the CI asked Gray about the  firearm.  Gray talked          to  Thompson, and Thompson stated  that he did  not know anything          about it.    That night,  the CI spoke with  Jackson, and Jackson          told the CI that he could  pick up the gun from defendant Michael          Shields the following morning at Theodore Street.                    On  October 12, 1991,  the CI went  to Theodore Street,          where he met Shields.   The CI told Shields that  he was there to          pick up a gun.   Shields told the CI that he was going  to make a          call to Henry's house, so  that Henry would bring the gun  to the          CI  at Theodore  Street.   The  CI then  observed Shields  make a          telephone call.  Shields  handed the telephone to the CI and said          that Jackson  was on the phone.   Jackson told  the CI to  wait a          while until Shields  woke up Henry who would get  the gun for the          CI.   Shields then asked Thompson to  take a cab to Henry's home,          and to  get the gun from  him.  Thompson left  the apartment, and          later returned  with Henry.  Henry  handed the CI  a 9 millimeter          firearm with an obliterated serial number.  Thompson handed Henry          a box  containing 50 rounds of ammunition  and Henry gave the box          of ammunition to the CI.                    During the following  three or four  weeks, the CI  had          more  contact with the defendants at Theodore Street.  On October          15, the CI went  to Theodore Street.  Thompson opened the kitchen          door for  him and led  him to an  adjacent room where the  CI met          with Jackson.   The CI paid  Jackson $650 for the  handgun he had                                         -5-          previously purchased.   While in the  apartment, the CI  observed          Dean engage in a  drug transaction involving what appeared  to be          cocaine.                    On October  18, the  CI telephoned Theodore  Street and          Thompson answered the telephone.   The CI then talked  to Shields          about a future crack cocaine transaction.                    On October 21, Thompson  was present at Theodore Street          when the  CI arrived to purchase  more crack.  Shields  and Henry          arrived  later  to  sell  the  CI  the  crack.    Acting  at  the          instruction  of Shields,  Henry left  the apartment  and returned          with 223 grams of cocaine base, and sold it to the CI for  $8000.          The CI  also  had  a  discussion with  Shields  about  purchasing          machine guns.                    After  early November  1991,  there  was  less  contact          between  the CI and the defendants.  On November 5, Jackson paged          the CI  through his beeper.   The CI then telephoned  Jackson, at          which point Jackson asked him when he was going  to purchase more          cocaine.    Jackson informed  the CI  that  his gun  supplier was          getting  weapons and that the CI could purchase them when Jackson          received them.                    On  December  10,  the  CI  went  with  Shields to  the          Theodore  Street  apartment and  had  a  discussion with  Jackson          concerning future  narcotics transactions.   While there,  the CI          saw Thompson at  the apartment.   In early  January 1992, the  CI          went  to a second  location, 973 Blue  Hill Avenue  in Boston, to          purchase  more cocaine  base, and  he spoke with  Gray.   After a                                         -6-          while, the CI went to the Theodore Street apartment, where he met          with Thompson and Gray.   The CI told Thompson that he  was there          to buy something from Jackson, and Thompson responded that the CI          would have to deal directly with Jackson.                    B.  Proceedings Below                    B.  Proceedings Below                    On January 20, 1993, the grand jury returned an eleven-          count indictment against  eight defendants.   The  only count  in                                                             ____          which Thompson was charged,  Count Ten, alleged that on  or about          October 12,  1991,   Jackson,  Shields,  "Henry,"   and  Thompson          knowingly  possessed  a  9-millimeter  pistol   with  a  removed,          obliterated or altered serial number, in violation of 18 U.S.C.            922(k).   The other counts, alleging  a cocaine base distribution          conspiracy, and substantive cocaine and cocaine base distribution          charges,  concerned conduct of  the other defendants  over a six-          month period from late September 1991 through March 1992.                    Thompson pled guilty to Count Ten  on October 20, 1993.          Pursuant  to a plea agreement, the government agreed to recommend          a 30-month prison sentence.   The agreement provided that  if the          court  decided to  sentence  Thompson  to  more than  30  months,          Thompson would be permitted to withdraw his guilty plea.                    The  PSR  was issued  on December  15,  1993.   The PSR          recommended  that the  guideline  applicable to  the offense  was          U.S.S.G.    2K2.1, and  that the 1990  guidelines applied, rather          then  the guidelines  in  effect when  the  report was  prepared,          because applying the latter version might create an ex post facto                                                              __ ____ _____          problem.   Because  the PSR  determined  that "defendant  used or                                         -7-          possessed  the  firearm  in  connection with  the  commission  or          attempted  commission" of  the overall  drug conspiracy,  the PSR          applied   the   "cross-reference"  provision   set  forth   in             2K2.1(c)(2) and  imputed to  Thompson a  series of drug  offenses          committed  by the alleged  conspiracy in  October 1991.   Finding          that the  conspiracy was responsible  for 122.5 grams  of cocaine          and  450.9  grams of  cocaine base  during  that period,  the PSR          calculated  Thompson's  base offense  level  as  34.   By  making          certain adjustments, it found Thompson's overall offense level to          be 37, and Thompson's applicable criminal history category to  be          I.   Since the applicable  Sentencing Guideline range  of 210-262          months was above the  statutory maximum of 60 months,  the latter          figure became the Sentencing Guideline range pursuant to U.S.S.G.            5G1.1(a).                    Thompson  agreed  that  the   applicable  offense-level          guideline  was U.S.S.G.   2K2.1 (1990), but objected to the PSR's          conclusions  that  the     2K2.1(c)(2)  cross-reference provision          applied to him.                    The court  sentenced Thompson on January 7,  1994.  The          court, agreeing with the PSR, found that the   2K2.1(c)(2) cross-          reference  provision applied  and  imputed to  Thompson the  drug          offense  level as computed in  the PSR.   Specifically, the court          accepted the undisputed factual  assertions contained in the PSR,          which convinced the court by a preponderance of the evidence that          there was a "sufficient basis" to find that  "the weapon was used          in connection  with and/or  to facilitate the  commission of  the                                         -8-          offense."    The  court  specifically  noted  that  all  of   the          narcotics-related   events  occurred   at  the   Theodore  Street          apartment  and  that  Thompson's name  came  up  in  the PSR  "in          connection  with  others  who   were,  indeed,  involved  in  the          substantive  drug  offenses  and  in  the  context in  which  Mr.          Thompson  could reasonably  be held  to have knowledge  that they          were so involved and he was so involved."                    The court  determined  that the  applicable  sentencing          range was the statutory  maximum of 60 months imprisonment.   The          court  then  departed downward  to  a prison  sentence  of thirty          months, because it found that  the cross-reference resulted in an          "extraordinary enlargement of  defendant's role and culpability,"          and the plea  agreement "does not  undermine the guidelines"  and          does not contravene the purposes of the sentences.1                                    II.  ANALYSIS                                    II.  ANALYSIS                                         ________                    A.  Standard of Review                    A.  Standard of Review                    On appeal,  Thompson  challenges the  district  court's          application of  sentencing guideline   2K2.1(c)(2)  (1990).  When          we  review  a  district   court's  application  of  a  sentencing          guideline, we utilize a bifurcated process.  First, we review the          guideline's  legal meaning and scope  de novo.   United States v.                                                _______    _____________          Brewster, 1 F.3d 51, 54 (1st Cir.  1993) (citing United States v.          ________                                         _____________          St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992)).  Next, we review the          _______          court's factfinding  for clear error, giving due deference to the                                        ____________________          1   Without the    2K2.1(c)(2) (1990)  cross-reference provision,          Thompson's guideline sentencing range would be 0-6 months.                                         -9-          court's application of the guidelines to the facts.  18 U.S.C.             3742(e); Brewster,  1 F.3d  at 54  (citing St.  Cyr, 977 F.2d  at                   ________                          ________          701); see, e.g., United States v. Wheelwright, 918 F.2d 226, 227-                ___  ____  _____________    ___________          28  (1st Cir.  1990)  (applying clearly  erroneous standard  when          reviewing   district   court's   application   of    U.S.S.G.              2K2.1(c)(1987) cross-reference provision).                    B.  Principles of Statutory Construction -                     B.  Principles of Statutory Construction -                         What does the Guideline Say and Mean?                        What does the Guideline Say and Mean?                    The   sentencing   guideline  at   issue,   U.S.S.G.             2K2.1(c)(2) (1990), provides:                      If  the defendant  used or  possessed the                      firearm in connection with  commission or                      attempted commission  of another offense,                      apply   2X1.1  (Attempt, Solicitation, or                      Conspiracy)  in  respect  to  that  other                      offense, if the  resulting offense  level                      is greater than that determined above.          U.S.S.G.   2X1.1(a) (1990) in turn requires that the base offense          level  is  to be  determined from  the  guideline for  the object          offense,  plus  any  adjustments  from  such  guideline  for  any          intended  offense   conduct  that   can  be  established   within          reasonable certainty.                    The  question  in  this appeal  is  whether  Thompson's          constructive possession  of the firearm was  "in connection with"          one  or  more of  the  drug  offenses.2    This Circuit  has  not          specifically identified what evidence  is sufficient to sustain a                                        ____________________          2   Thompson pled  guilty to  Count Ten  of the indictment  which          charged  him with  the knowing  possession of  a handgun  with an          obliterated  serial  number.    Thompson  does   not,  therefore,          challenge the  court's implicit determination at  sentencing that          he "used  or  possessed"  the  firearm  pursuant  to  U.S.S.G.             2K2.1(c)(2).                                         -10-          finding  under    2K2.1(c)(2)  that  a firearm  was  possessed in          connection with the commission or attempted commission of another          offense.   Thompson argues that  the phrase "in  connection with"          should  be interpreted narrowly, in  a way that  requires a tight          facilitative nexus between a  defendant's possession of a firearm          and the commission of  any drug offense.  Thompson  contends that          such a nexus is lacking in this case.  The government argues that          the phrase  is  to be  interpreted  broadly and  that  Thompson's          conduct easily falls within the purview of the guideline.                    When  interpreting a  statute, it  is axiomatic  that a          court must first  look to the  plain words  and structure of  the          statute.   United States  v. O'Neil, 11  F.3d 292, 295  (1st Cir.                     _____________     ______          1993); see also United States v. DeLuca,  17 F.3d 6, 10 (1st Cir.                 ________ _____________    ______          1994) (stating  that principles of statutory interpretation apply          to  sentencing  guidelines).    With respect  to  the  sentencing          guidelines,  courts  should strive  to  apply  the guidelines  as          written, according words in  common usage their ordinary meaning.          Brewster, 1  F.3d at 54.  Because the phrase "in connection with"          ________          is  not  defined  under  U.S.S.G.     2K2,  we  assume  that  the          Sentencing  Commission  did  not  intend the  terms  to  have  an          exceptional or guideline-specific meaning.   This reinforces  our          belief that the words should be accorded their customary meaning.          See  Smith  v.  United  States,  113  S. Ct. 2050,  2054  (1993);          ___  _____      ______________          Brewster, 1 F.3d at 54.3          ________                                        ____________________          3  Thompson points  to the language of the    2K2 cross-reference          when originally issued, which provided:                                         -11-                    Merriam-Webster's Collegiate Dictionary  245 (10th  Ed.          1993) defines  "connection" as a  "causal or logical  relation or          sequence."   This  definition  suggests that  there must  be some          reasoned  link between a defendant's  possession of a firearm and          the commission or attempted commission of another offense.  While          it  is difficult  to sketch  the outer  boundaries of  this link,          there is no  question that  where a defendant's  possession of  a          firearm  somehow aids or facilitates, or has the potential to aid          or facilitate, the commission of another offense, the defendant's          possession of the  firearm is causally  and logically related  to          the  other offense.  A defendant's possession of a firearm cannot          therefore simply be coincidental.                    Courts which have interpreted the phrase "in connection                                        ____________________                      If  the defendant  used  the  firearm  in                      committing or attempting another offense,                      apply  the guideline  in respect  to such                      other  offense,  or    2X1.1  (Attempt of                      Conspiracy)  if   the  resulting  offense                      level  is  higher  than  that  determined                      above.  U.S.S.G.   2K2.1 (1987).          Thompson argues that this earlier language required a tight nexus          between the  firearm and the cross-referenced  offense.  Although          the wording of the  cross-reference provision was changed between          1987 and  1990, Thompson  argues that  this modification  was not          intended  to  change the  meaning  of  the cross-reference.  (The          phrase  "[i]f the  defendant  used the  firearm in  committing or          attempting another  offense" was replaced by  "[i]f the defendant          used or possessed  the firearm in  connection with commission  or          attempted  commission of  another  offense."   U.S.S.G., App.  C,          Amendment  189  (1989)).    To support  this  argument,  Thompson          contends that the lack  of expository comment in relation  to the          amendment  means that it is  unlikely that the  change in wording          signalled a change in meaning or how it was to be applied.  We do          not agree.   We  do  not believe  we should  use  the absence  of          legislative  history to  interpret  a statute  or guideline  in a          manner  inconsistent with its  plain language.   United States v.                                                           _____________          Zackular, 945 F.2d 423, 424 (1st Cir. 1991).          ________                                         -12-          with" in the context of   2K2 of the guidelines  have adopted and          applied  this plain  meaning.   In  Brewster,  the First  Circuit                                              ________          reviewed  the  district court's  application  of  the phrase  "in          connection with" in the context of U.S.S.G.   2K2.1(b)(5) (1992),          a  similar  cross-reference  provision.4    Id.  at  54-55.    In                                                      __          Brewster, over the course of a month, an undercover federal agent          ________          met with Brewster  several times  to discuss  the possibility  of          buying drugs and guns.   Their discussions came to  fruition when          Brewster  sold the  agent a  small amount  of crack  cocaine, and          within  an hour of that  transaction, also sold  him an automatic          weapon.     Brewster  eventually   pled  guilty  to   charges  of          distribution  of cocaine  and being  a felon  in possession  of a          firearm.   At the sentencing hearing, the agent testified that he          had told  Brewster from the outset  that he aspired to  be a drug          dealer,  and  that he  needed a  weapon  to facilitate  his plan.          Brewster denied that  he knew of any link between  the weapon and          the  agent's planned drug trafficking.  The court then found that          Brewster sold the firearm with  knowledge of the buyer's intended          narcotics-related use  of the  weapon, and enhanced  his sentence          pursuant to U.S.S.G.   2K2.1 (b)(5).   Brewster then appealed the                                        ____________________          4  U.S.S.G.   2K2.1(b)(5) (1992) provides:                      If  the defendant  used or  possessed any                      firearm or ammunition in  connection with                      another felony offense;  or possessed  or                      transferred  any  firearm  or  ammunition                      with  knowledge,  intent  or   reason  to                      believe   that  it   would  be   used  or                      possessed  in   connection  with  another                      felony offense, increase by four levels.                                         -13-          court's application of this  cross-reference.  We determined that          the phrase "in  connection with" should be  accorded its ordinary          meaning.     The  court  then  noted  that  the  case  turned  on          credibility,  and found  that  the district  court's decision  to          credit  the agent's  recitation of  events, which  indicated that          Brewster  sold the gun with  reason to believe  that his customer          planned to use the  gun in connection with drug  trafficking, was          supported by the  record, and that this constituted  a sufficient          nexus between the  weapon and the drug  trafficking, for purposes          of  the  sentence enhancement.  Id. at  54-55.   See  also United                                          __               _________ ______          States v. Condren,  18 F.3d 1190, 1200  (5th Cir. 1994);   United          ______    _______                                          ______          States v. Sanders, 990  F.2d 582, 585 (10th Cir.),  cert. denied,          ______    _______                                   ____________          114 S. Ct. 216 (1993).                    Our  construction of  the phrase  "in  connection with"          comports  with the  Supreme Court's  recent interpretation  of an          analogous  phrase, "in relation to"  in the context  of 18 U.S.C.            924(c)(1).  See Smith  v. United States, 113 S. Ct.  2050, 2059                        ___ _____     _____________          (1993); United  States v.  Routon, No.  93-10103, slip.  op. (9th                  ______________     ______          Cir. June  1, 1994).  In  Smith, the Supreme Court  looked to the                                    _____          ordinary meaning of the phrase "in relation to" and found that it          meant "with reference to" or "as  regards."  Smith, 113 S. Ct. at                                                       _____          2058-59  (citing Webster's  New International  Dictionary of  the          English Language, at 2102).  The Court emphasized that the phrase          had an expansive meaning.  Id. at 2058.  The Court stated:                                     __                      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                                         -14-                      presence  or  involvement  cannot be  the                      result  of accident  or coincidence.   As                      one court has observed, the  "in relation                      to"   language  "allays   explicitly  the                      concern that a  person could be" punished                      under   924(c)(1) for  committing a  drug                      trafficking offense  "while in possession                      of a  firearm" even though  the firearm's                      presence  is   coincidental  or  entirely                      "unrelated"  to the crime.  United States                                                  _____________                      v. Stewart, 779  F.2d 538, 539  (9th Cir.                         _______                      1985) (Kennedy, J.).  Instead, the gun at                      least  must  "facilitate,  or   have  the                      potential  of   facilitating,"  the  drug                      trafficking offense.          Smith,  113 S.  Ct. at  2059 (other  citations omitted.);  United          _____                                                      ______          States  v. Hadfield, 918 F.2d  987, 998 (1st  Cir. 1990) (stating          ______     ________          that  under 18  U.S.C.    924(c),  the  critical concern  is  the          presence  or absence of a facilitative  nexus between the firearm          and drug  activity, and  finding that  even if  a firearm is  not          instantly  available or  exclusively dedicated  to  the narcotics          trade,  a sufficient nexus may  exist to find  a firearm was used          during  and  in  relation to  a  drug  trafficking crime),  cert.                                                                      _____          denied,  500  U.S. 936  (1991).   We  therefore believe  that the          ______          phrase  "in connection  with" should  be interpreted  broadly and          that  where  a  defendant's  possession  of  a  firearm  aids  or          facilitates the commission of another offense, the requisite link          is present.5                                        ____________________          5    Thompson points  to the  Tenth  Circuit's opinion  in United                                                                     ______          States  v. G mez-Arrellano, 5  F.3d 464  (10th Cir.  1993), which          ______     _______________          expressly  looked  to  18  U.S.C.     924(c)  for  interpretative          guidance, as controlling precedent.  In United States v. Sanders,                                                  _____________    _______          990 F.2d 582 (10th Cir.), cert. denied, 114 S. Ct. 216 (1993), an                                    ____________          earlier  Tenth  Circuit case,  the court  refused  to look  to 18          U.S.C.   924(c) which creates criminal liability for one who uses          or  carries a  firearm "during  and in relation  to any  crime of          violence or drug trafficking crime" as a guide for interpreting                                           -15-                    We  do not  believe that  the district  court's factual          finding that  Thompson's constructive  possession of  the handgun          facilitated  the  commission  of  the cocaine  and  cocaine  base          offenses,   and  therefore  fell  within   the  ambit  of  the             2K2.1(c)(2)  cross-reference  provision,  was clearly  erroneous.          The  record  supports the  conclusion  that  a drug  distribution          operation  was run out of the Theodore Street apartment, and that                                        ____________________          2K2.1(b)(5) because the standard under    924(c) was "much higher          than  that  necessary  for  enhancement  under  the  Guidelines."          Sanders, 990 F.2d  at 585.  After Sanders was decided, the United          _______                           _______          States  Supreme Court  issued  its decision  in  Smith v.  United                                                           _____     ______          States,  113 S. Ct.  2050, 2059-60  (1993), which  interpreted 18          ______          U.S.C.    924(c) to require  evidence showing only  that a weapon          facilitated or had the potential to facilitate a crime -- a lower          standard than that previously used by the Tenth Circuit.             In G mez-Arrellano,  the Tenth Circuit expressly  looked to 18                _______________          U.S.C.    924(c) for  guidance as to how  to interpret the phrase          "in  connection  with"  and  ultimately held  that  the  district          court's decision to apply  the sentence enhancement for use  of a          firearm in connection with another  felony was unsupported by the          record.   The  facts had  shown that  when INS  officers went  to          arrest Mr.  G mez-Arrellano  at  an  Albuquerque  residence,  the          officers observed a green  leafy substance in plain view  and Mr.          G mez-Arrellano attempting to hide a plastic bag under a bed.   A          subsequent  search  of the  residence  led  to the  discovery  of          marijuana, cocaine, a pistol and  ammunition.  Because there  was          no  evidence  in  the  record regarding  the  physical  proximity          between  the weapon and the drugs, nor any evidence regarding the          size  or  layout  of the  house,  nor  any  indication that  drug          transactions occurred  inside the house, the  Tenth Circuit found          there was  insufficient evidence to  support the  inference of  a          nexus between the weapon and narcotics activity.             We  do not believe that the Tenth Circuit's decision in G mez-                                                                     ______          Arrellano  to  use     924(c)  as  a  model  for  interpreting             _________          2K2.1(b)(5)  is  inconsistent  with  Sanders,  in  light  of  the                                               _______          intervening  United States  Supreme  Court case.   Moreover,  our          interpretation of    2K2.1 (c)(2) is consistent  with the Supreme          Court's  interpretation of similar language in   924(c).  We also          believe  that the  facts  of the  present  case show  a  stronger          connection between the firearm  possession and drug offenses than          did the facts in G mez-Arrellano.                           _______________                                         -16-          Jackson was the "Boss," who was supported in his business by  his          "boys,"  one of whom was Thompson.   As the district court found,          it was imminently reasonable to believe that Thompson  knew about          this  drug  dealing operation  --  he  was  present  on  numerous          occasions when the CI went to Theodore Street to purchase cocaine          and cocaine  base, and while  there, saw drug  related activities          openly occurring in the apartment.                    While  purchasing drugs,  the CI  repeatedly sought  to          purchase firearms as well.   Specifically, the CI was  looking to          purchase a handgun on October 11, 1991, when he bought a quarter-          kilogram of cocaine base at Theodore Street.  The handgun was not          available and  the CI was  told to  come back the  next day.   On          October  12, the CI returned  to Theodore Street  to purchase the          gun, and Thompson, along with  Henry, personally delivered the  9          millimeter pistol and ammunition  to the CI.    Essentially, this          completed the sale from the previous day.  It does not in any way          strain credulity to believe that the Theodore Street group's sale          of the firearm to the CI facilitated the cocaine and cocaine base          sales.   The  evidence  reasonably  suggested  that the  cast  of          characters at  Theodore Street was  in the business  of supplying          both drugs and  firearms, and  that they were  willing to  obtain          whatever  contraband the CI requested,  in order to accommodate a          good customer and to maintain his confidence and business.                    Thompson argues that the requisite nexus should only be          found  to exist  when there  is some  type of  physical proximity          between  the firearm  and  the drugs.    The guideline  does  not                                         -17-          require that  the defendant actually use the  firearm himself, or          use  the  firearm in  any particular  way.   Rather,  as  we have          already  determined, the language of the guideline is broad.  The          combination of firearms  and drugs is  common, and the  guideline          encompasses the many logical links which exist between the use of          firearms and drugs.                    Thompson also points out  that the usual case  in which          the    2K2.1 cross-reference is  used to apply drug guidelines to          a firearms offender  is where  the defendant used  a firearm  for          protection during a drug transaction or had the firearm available          to  protect his  supply of  drugs.   While this  may be  the most          common  scenario, it is certainly not the only type of situation.          Rather,  the cross-reference  has been  applied in  a  variety of          factual  scenarios   where  a   firearm  has  somehow   aided  or          facilitated  the  cross-referenced  offense.  See,  e.g.,  United                                                        ___   ____   ______          States  v. Patterson, 947 F.2d  635, 636 (2d  Cir. 1991) (finding          ______     _________          that   the   district  court   properly  applied      2K2.1(c)(2)          enhancement when evidence  showed that defendant had  a gun under          the front seat of his car while he was driving to purchase drugs,          even though no drugs were physically present in the car.)   Here,          the  requisite nexus  existed  by virtue  of  the fact  that  the          enterprise, which Thompson was associated with, sold the guns and          drugs together,  in  an attempt  to  accommodate a  customer  and          maintain his  business.   The application  of  the    2K2.1(c)(2)          cross-reference  to Thompson reflects  the seriousness of firearm          possession  in connection  with other  felonies, and  the reality                                         -18-          that  when firearms are possessed or used in connection with drug          offenses, there is a greater threat to public safety.  See, e.g.,                                                                 ___  ____          United  States  v. McFadden,  13 F.3d  463,  464 (1st  Cir. 1994)          ______________     ________          (noting  that  Congress  viewed  the  connection between  firearm          possession in relation to drug trafficking provided  by 18 U.S.C.             924(c)  very  seriously by  requiring  a  mandatory  five year          sentence,  thus  denying parole  to an  offender  at a  time when          parole  was ordinarily available as a matter of course); U.S.S.G.            2D1.1(b)(1)   comment  (n.3)   (1990)   (enhancement  of   drug          trafficking offense for weapons possession reflects the increased          danger of violence when drug traffickers possess weapons).                    For the foregoing reasons, the district court correctly          applied U.S.S.G.   2K2.1(c)(2), and the sentence is affirmed.                                                              ________                                         -19-
