                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2870
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri
Michael Brown,                           *
                                         *     [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                            Submitted: June 7, 2000

                                Filed: June 13, 2000
                                    ___________

Before McMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                          ___________

PER CURIAM.

       Michael Brown appeals from the final judgment entered in the District Court1 for
the Western District of Missouri, following resentencing upon a successful 28 U.S.C.
§ 2255 motion. In 1989 appellant was convicted of multiple counts relating to the
distribution of cocaine and cocaine base. He also was convicted of one count of using
a firearm in connection with drug trafficking, in violation of 18 U.S.C. § 924(c). He

      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
was sentenced to a total of 248 months imprisonment and five years supervised release,
and was fined $17,500. We affirmed the § 924(c) conviction on direct appeal, see
United States v. Brown, No. 90-1545, slip op. at 1 (8th Cir. Nov. 18, 1990)
(unpublished per curiam), but the district court later vacated the conviction pursuant to
Bailey v. United States, 516 U.S. 137 (1995), and resentenced appellant on the
remaining drug convictions under an increased Guidelines range that included a two-
level firearm-possession enhancement. For reversal appellant argues (1) the district
court erred in applying the enhancement because the government failed to show
scienter--i.e., that he possessed the firearm intentionally, recklessly, or by criminal
negligence--which was required by U.S.S.G. § 1B1.3 (1988) as it existed when he
committed his drug offenses; (2) the district court erred in refusing to reconsider other
aspects of his drug sentence at resentencing, which denied him equal protection; and
(3) his counsel was ineffective for failing to address the scienter requirement. For the
reasons discussed below, we affirm the judgment of the district court.

        We conclude the evidence was sufficient to satisfy any scienter requirement
resulting from the language in pre-amendment Guidelines § 1B1.3. See U.S.S.G.
§§ 1B1.3 (relevant conduct in determining Guidelines range includes “(3) all harm or
risk of harm that resulted from the acts . . . if the harm or risk was caused intentionally,
recklessly or by criminal negligence”),2 2D1.1(b)(1) (1988) (mandating enhancement
if a firearm or other dangerous weapon was possessed during commission of offense);
United States v. Underwood, 938 F.2d 1086, 1088-90 (10th Cir. 1991) (discussing
scienter requirement for application of Guidelines § 2D1.1(b)(1) enhancement based
on language in pre-amendment Guidelines § 1B1.3; collecting cases). Authorities had
found a loaded handgun in a closet in Brown's apartment, below his stash of drugs and
money, and a co-defendant had seen him holding a similar firearm in a parking lot; the


       2
        In November 1989, Guidelines § 1B1.3 was amended to delete the language
pertaining to “risk of harm” and “state of mind,” and the reference to harm committed
“intentionally, recklessly, or by criminal negligence.” U.S.S.G. App. C, Amend. 76.
                                            -2-
co-defendant had seen such a firearm lying on the couch in Brown's apartment on
another occasion. See United States v. Roberts, 953 F.2d 351, 354 (8th Cir.) (district
court may rely upon evidence presented at trial in making sentencing determinations),
cert. denied, 505 U.S. 1210 (1992); United States v. Burke, 888 F.2d 862, 867-68
(D.C. Cir. 1989) (noting in discussing pre-November 1989 scienter requirement that
possession with knowledge includes actual and constructive possession). Although
Brown denied at resentencing that he knew anything about the firearm, claiming that
it had been kept in a box belonging to his girlfriend, the district court was not required
to accept his assertions. See United States v. Behler, 187 F.3d 772, 777 (8th Cir.
1999).

       We also conclude that the district court did not err in refusing to reconsider other
aspects of Brown's drug sentence at resentencing, see id. (noting in part that vacating
mandatory minimum sentence for § 924(c) conviction did not disturb any prior findings
concerning defendant’s role in offense or obstruction of justice), and that this limitation
at resentencing did not violate Brown's equal protection rights.

       Finally, we agree with the government that counsel made the scienter argument,
albeit unsuccessfully, by contending at resentencing that the district court had to find
Brown had “knowingly” possessed the firearm at issue in order to apply the
enhancement. See Parkus v. Bowersox, 157 F.3d 1136, 1139 (8th Cir. 1998)
(defendant must show counsel’s performance was deficient, and that this deficient
performance prejudiced his defense), cert. denied, 119 S. Ct. 2410 (1999).

      Accordingly, we affirm.




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A true copy.

      Attest:

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




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