                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         NOV 19 2001
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 00-7080
 v.
                                                   (D.C. No. 00-CR-04-B)
                                                        (E.D. Okla.)
 FELIX SANDERS,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.



      Defendant-Appellant Felix Sanders raises three objections to his conviction

for drug and firearm violations, none of which have merit.

      First, Sanders argues that his trial should have been continued so that a

crucial witness on his behalf, Dennis Morrison, could be located. The district

court delayed trial twice in order to give Sanders time to locate the missing


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This Order and Judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
witness, but the court eventually determined that trial would have to proceed

notwithstanding Morrison’s absence. The failure to grant a motion for a

continuance is reviewed for abuse of discretion, and “[a] trial judge’s decision to

deny a motion for a continuance constitutes an abuse of discretion only if the

denial was arbitrary or unreasonable and materially prejudiced the defendant.”

United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990) (internal quotation

marks omitted).

      The district court explained its ruling in the following exchange with

Sanders’ counsel:

      Court:        [F]rom what I know about the matter, it appears as though
                    the particular gentleman you’re talking about has been
                    missing and unheard of, so to speak, for a little in excess
                    of six months now. And about three or four weeks ago the
                    matter was presented, and you’ve had a concentrated
                    period of time, the last three or four weeks, to find the
                    gentleman, if he were available. And it appears as though
                    for over six months there’s been an effort made to locate
                    this person you’re talking about. And for that reason I
                    think ample time has been given to locate this particular
                    person. It also appeared to me from the record that I was
                    presented that there is another witness, at least one, that
                    could testify, in essence, to the same facts of this alleged
                    material witness. And so for that reason, which I stated
                    previously in the order, your request for a continuance will
                    be overruled and we’ll proceed on with the matter for jury
                    trial today.

                    Anything further on that subject?

      Mr. Starr:    No. I believe you pretty well stated the facts of the
                    situation, your Honor.

                                         -2-
(4/3/2000 Tr. at 4-5.) Sanders does not challenge any particular aspect of the

district court’s reasoning, but simply offers the conclusory assertion that “had

Dennis Morrison been available to testify he could have provided much essential

and valuable information in the defense of this case.” (App’t Br. at 6.) That may

be true, but Sanders offers no reason to suggest that Morrison could have been

located in the near future, nor does he identify any aspect of Morrison’s potential

testimony that was not provided by other defense witnesses. He has not identified

any basis for concluding that the district court abused its discretion in refusing to

delay Sanders’ trial for a third time.

      Next, Sanders relies on Bailey v. United States, 516 U.S. 137 (1995), to

challenge the sufficiency of the evidence underlying his conviction for violating

18 U.S.C. § 924(c)(1). The Bailey Court interpreted § 924(c)(1) as requiring

“evidence sufficient to show an active employment of the firearm by the

defendant, a use that makes the firearm an operative factor in relation to the

predicate offense.” Id. at 143 (emphasis in original). The Bailey Court was

addressing the portion of the statute which specifies certain penalties for anyone

who “uses or carries a firearm” during a violent or drug trafficking crime. Id. at

142-43. Sanders argues that his conviction cannot be sustained because there was

no evidence that he actually used or carried firearms while trafficking drugs.




                                         -3-
      Sanders fails to recognize that, after Bailey, Congress amended § 924(c)(1),

and the statute now specifies certain penalties for anyone who “uses or carries a

firearm, or who, in furtherance of any such [violent or drug trafficking] crime,

possesses a firearm.” The “uses or carries” prong was not at issue in this case.

The district court instructed the jury that it could find Sanders guilty of violating

§ 924(c)(1) if he “knowingly possessed a firearm as charged, in furtherance of the

commission of [the crime of possession with intent to distribute

methamphetamine].” (4/5/2000 Tr. at 614.)

      The evidence established that two loaded semi-automatic pistols were

found on a work bench in the shop area next to Sanders’ living quarters, directly

below a shelf that contained methamphetamine, scales, and plastic baggies. (Tr.

216, 225, 229.) A DEA task force officer who was involved in the search of

Sanders’ home testified that “[t]he presence of baggies, scales, the

methamphetamine that was located there, is all indicative and consistent with

distribution.” (Tr. 237.) He also testified that firearms are often found near drug

distribution materials because they are among the “tools of the trade” for drug

traffickers. (Id.)

      The evidence that loaded pistols were kept next to Sanders’ drug

distribution materials, coupled with the agent’s “tools of the trade” discussion, is

sufficient to support the jury’s verdict that the firearms were possessed by


                                          -4-
Sanders “in furtherance of” the drug crime. See United States v. Iiland, 254 F.3d

1264, 1274 (10th Cir. 2001) (reversing conviction under § 924(c)’s “in

furtherance of” prong where “[t]here was no evidence that the gun and drugs were

ever kept in the same place or that Mr. Iiland ever kept the gun accessible when

conducting drug transactions”); United States v. Ceballos-Torres, 218 F.3d 409,

415 (5th Cir. 2000) (upholding conviction under § 924(c)’s “in furtherance of”

prong where defendant’s loaded gun “was possessed in the apartment along with a

substantial amount of drugs and money”), cert. denied, 531 U.S. 1102 (2001).

      Finally, Sanders contends that the district court erred by admitting evidence

seized from his apartment because the underlying search warrant should not have

been issued. Sanders did not move to suppress the evidence, and the legality of

the search was not an issue at trial. The district court even told the jury that

“there isn’t any question about the legality of this search and the manner in which

they entered, none at all. That hasn’t been raised as an issue in this case.” (Tr.

264.) Because Sanders failed to move to suppress the evidence before trial, he

has waived this argument. United States v. Meraz-Peru, 24 F.3d 1197, 1198 (10th

Cir. 1994). Further, there is no factual record on which to conduct a plain error

review. See United States v. Jordan, 162 F.3d 1, 11 n.2 (1st Cir. 1998) (finding

plain error review inappropriate where “the defendant has failed to develop the

necessary factual record undergirding a particular suppression claim”).


                                          -5-
We therefore AFFIRM Sanders’ convictions.


                             ENTERED FOR THE COURT



                             David M. Ebel
                             Circuit Judge




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