                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-4065
                                   ___________

United States of America,               *
                                        *
              Appellee,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Missouri.
Earl Smith,                             *
                                        *       [UNPUBLISHED]
              Appellant.                *
                                   ___________

                           Submitted: June 25, 2003
                               Filed: July 9, 2003
                                    ___________

Before MORRIS SHEPPARD ARNOLD, BYE, and RILEY, Circuit Judges.
                         ___________

PER CURIAM.

       Earl Smith (Smith) pled guilty to possessing with intent to distribute over 50
grams of a mixture containing a detectable amount of cocaine base (crack), in
violation of 21 U.S.C. § 841(a)(1). The district court1 applied a two-level
enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm, and sentenced
Smith to 120 months imprisonment and 5 years supervised release. On appeal, Smith
argues that the district court clearly erred in applying the enhancement because the
government did not show that he possessed the firearm or that it was connected with

      1
       The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
the offense. Smith’s live-in girlfriend testified at the sentencing hearing she owned
the gun for protection, she had not seen Smith with the weapon, and she did not know
Smith was dealing drugs. We affirm.

       The district court did not clearly err in applying the enhancement. Smith had
constructive possession over the loaded firearm, as it was found in the apartment
where he resided with his girlfriend. Further, the gun was found in the same room as
a large amount of cash, drug paraphernalia was found in the kitchen, and, at the time
of the search, Smith was attempting to flush drugs down the toilet. See United States
v. Braggs, 317 F.3d 901, 904 (8th Cir. 2003) (standard of review); United States v.
Betz, 82 F.3d 205, 210-11 (8th Cir. 1996) (upholding enhancement where loaded
firearms and drugs were found in different places on defendant’s property); United
States v. Payne, 81 F.3d 759, 762 (8th Cir. 1996) (“either actual or constructive
possession is sufficient, i.e., the individual must have exercised ownership, dominion,
or control either over the firearm or the premises on which it is found”) (internal
quotation and citation omitted). The district court discredited Smith’s girlfriend’s
testimony regarding the weapon, which is virtually unreviewable on appeal. See
United States v. Gutierrez-Manzanarez, 323 F.3d 613, 615 (8th Cir. 2003).

      Accordingly, the judgment is affirmed.

      A true copy.

             Attest:

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




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