                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         NOV 25 1997
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 96-6276
v.                                               (W. District of Oklahoma)
                                                  (D.C. No. CR-95-169-A)
MONICA SHEVETTE CARTER,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, McKAY and MURPHY, Circuit Judges.


      Appellant Monica Shevette Carter was charged with conspiracy to

distribute cocaine base, in violation of 21 U.S.C. § 846, possession with intent to

distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), and four counts of

distribution of cocaine base, also in violation of 21 U.S.C. § 841(a)(1). A jury

convicted Carter of the conspiracy charge and the four counts of distribution but

acquitted her of the one count of possession with intent to distribute. The


      *
       This order and judgment is not binding precedent, except under the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.
presentence report (“PSR”) calculated Carter’s base offense level at 38 based on

2513 grams of cocaine base and six grams of marijuana. The PSR recommended

the district court apply a two-level enhancement for possession of a firearm

pursuant to U.S.S.G. § 2D1.1(b)(1) and a two-level enhancement for obstruction

of justice pursuant to U.S.S.G. § 3C1.1. Following a sentencing hearing, the

district court sentenced Carter to imprisonment for a term of 360 months on each

count, to be served concurrently, and to five years of supervised release on each

count, to run concurrently.

      On appeal, Carter contends the district court erred by (1) refusing to make a

downward departure from the Sentencing Guidelines; (2) applying a two-level

enhancement for possession of a firearm; and (3) considering the testimony of

Kenneth Patterson when calculating the drug quantities attributable to her. This

court affirms.

      A. Downward Departure

      Carter argues the district court erred by refusing to make a downward

departure pursuant to § 5K2.0 of the Sentencing Guidelines 1 based on


      1
          Section 5K2.0 of the Sentencing Guidelines provides, in part:

      [T]he sentencing court may impose a sentence outside the range
      established by the applicable guideline, if the court finds “that there
      exists an aggravating or mitigating circumstance of a kind, or to a
      degree, not adequately taken into consideration by the Sentencing
      Commission in formulating the guidelines that should result in a

                                          -2-
extraordinary circumstances, namely her role as sole caretaker for her four young

children. This court lacks jurisdiction to consider Carter’s claim.

      “A discretionary refusal to depart downward is not reviewable by this court

unless it appears from the record the sentencing court erroneously believed the

Guidelines did not permit a downward departure.” United States v. Nelson, 54

F.3d 1540, 1544 (10th Cir. 1995). Furthermore, because “‘the district courts have

become more experienced in applying the Guidelines and more familiar with their

power to make discretionary departure decisions under the Guidelines,’” we

presume the court was aware of its authority “unless the judge’s language

unambiguously states that the judge does not believe he has authority to

downward depart.” United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.

1994) (quoting United States v. Barrera-Barron, 996 F.2d 244, 246 (10th Cir.

1993)); see also Nelson, 54 F.3d at 1544 (“If the record is ambiguous concerning

the district court’s awareness of its discretion to depart downward, we presume

the court was aware of its authority.”).

      The record of the sentencing hearing does not contain an unambiguous

statement on the part of the district court indicating that it erroneously thought it




      sentence different from that described.”

U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)).

                                           -3-
was without power to depart downward. Accordingly, this court lacks jurisdiction

to hear Carter’s claim. See Rodriguez, 30 F.3d at 1319; Nelson, 54 F.3d at 1544.

      B. Firearm Enhancement

      Carter argues the district court erred by enhancing her sentence for

possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). 2 Agents from the

Oklahoma Bureau of Narcotics discovered the gun upon which the enhancement

was based when they went to the Lexington Suites Hotel to execute an arrest

warrant for codefendant Vernoil Cantley, who was sharing a room with Carter.

During a search of the hotel room, the agents found a Davis .380 pistol in Carter’s

purse on the dresser 3 and 595 grams of crack cocaine in a duffel bag inside the

closet.

      Both Carter and Cantley were charged with possession with intent to

distribute the crack cocaine found in the hotel room. Carter was acquitted of the

charge, while Cantley was convicted. At the sentencing hearing, however, the

district court found by a preponderance of the evidence that Carter was

accountable for the drugs; the court therefore considered the drug quantity when


      Section 2D1.1(b)(1) of the Sentencing Guidelines provides: “If a
      2

dangerous weapon (including a firearm) was possessed, increase by 2 levels.”
U.S.S.G. § 2D1.1(b)(1).
      3
         In a pre-trial motion, Carter argued the gun was illegally seized. At the
suppression hearing, the government agreed that it would not introduce the gun
into evidence at trial; the district court therefore did not determine whether the
gun was illegally seized.

                                        -4-
calculating Carter’s base offense level. The district court enhanced Carter’s

sentence for possession of a firearm after determining it was not clearly

improbable that the gun found in Carter’s purse was connected with the drugs

found in the hotel room.

      On appeal, Carter argues it is clearly improbable that the gun was

connected with the drug offense for the following reasons: (1) the gun was not in

close proximity to the drugs; (2) she was staying in a separate room at the hotel

and had gone to Cantley’s room only to spend the night; and (3) because she was

acquitted of the possession charge for the drugs found in the hotel room, there

was no evidence linking her to the drugs. In addition, Carter essentially argues

that as a matter of law, a firearm enhancement may not be based on a drug charge

for which the defendant has been acquitted.

      We review the district court’s factual findings at sentencing for clear error

but review its legal interpretation of the Sentencing Guidelines de novo. See

United States v. Johnson, 42 F.3d 1312, 1320 (10th Cir. 1994). The Sentencing

Guidelines provide that a two-level enhancement for possession of a weapon

“should be applied if the weapon was present, unless it is clearly improbable that

the weapon was connected with the offense.” U.S.S.G. § 2D1.1 application note

3. Initially, the government bears the burden of establishing the temporal and

spatial proximity of the weapon to the drug offense. See United States v. Lang,


                                         -5-
81 F.3d 955, 964 (10th Cir. 1996); United States v. Roederer, 11 F.3d 973, 982

(10th Cir. 1993). Proximity may be proved by presenting “‘evidence that the

weapon was found in the same location where drugs or drug paraphernalia are

stored or where part of the transaction occurred.’” Roederer, 11 F.3d at 983

(quoting United States v. Hooten, 942 F.2d 878, 882 (5th Cir. 1991)). Once the

government meets its burden of proving proximity, the burden then shifts to the

defendant to show that the enhancement should not apply because it is “clearly

improbable” the weapon was connected with the offense. See Lang, 81 F.3d at

964; United States v. Contreras, 59 F.3d 1038, 1040 (10th Cir. 1995).

      The government met its initial burden of proving proximity. During a

search of the hotel room where Carter and Cantley were staying, agents found the

gun in the same room as the drugs. This is sufficient under our case law to prove

proximity. See, e.g., Johnson, 42 F.3d at 1320-21; Contreras, 59 F.3d at 1039-40;

United States v. Roberts, 980 F.2d 645, 647-48 (10th Cir. 1992). The burden

therefore shifted to Carter to show it was clearly improbable the gun was

connected with the offense. See Lang, 81 F.3d at 964. Carter has not met this

burden.

      Carter suggests that based on her brief stay in the hotel room and her

acquittal of the possession charge, there is no evidence to show that she even

knew of the presence of the drugs, thus making it clearly improbable her gun was


                                         -6-
connected with the drug offense. It is well established that “[t]he preponderance

standard applies to fact finding in the sentencing process.” United States v.

Washington, 11 F.3d 1510, 1516 (10th Cir. 1993). The district court found by a

preponderance of the evidence that Carter knew of the presence of the drugs “by

virtue of her knowledge of the extensive, longtime, repeated, general pattern of

drug transactions done by Mr. Cantley, frequently in her very presence.” Given

Cantley’s position as leader of the conspiracy and Carter’s close relationship with

Cantley, 4 the district court’s finding is supported by the evidence. The district

court further found that “it’s [clear] that the weapon was present because of the

presence of the drugs.” Based on our review of the record, we cannot say the

district court’s findings were clearly erroneous.

        Carter’s second argument must also fail. The fact that Carter was acquitted

of the possession charge for the drugs found in the hotel room does not preclude a

two-level enhancement for the gun found in the room. “The [G]uidelines require

that all relevant conduct be considered at sentencing.” Id. (citing U.S.S.G. §

1B1.3). Furthermore, in drug cases requiring grouping of multiple counts,

“specific offense characteristics are to be determined with reference to all acts

‘that were part of the same course of conduct or common scheme or plan as the



        4
            Carter testified that she had a “relationship” with Cantley during 1992 and
1993.

                                             -7-
offense of conviction.’” Roederer, 11 F.3d at 982 (quoting U.S.S.G. §

1B1.3(a)(2)). Thus, in Roederer, this court upheld a firearm enhancement based

on a gun found in the defendant’s apartment even though all the charges for

distribution from the apartment were dismissed after the defendant pleaded guilty

to one count of conspiracy to possess with intent to distribute and one count of

distribution. See id. at 981-83 (citing United States v. Falesbork, 5 F.3d 715, 720

(4th Cir. 1993) (“[Relevant conduct] includes possession of a gun while engaging

in drug sales related to, though distinct from, the crime of conviction.”)).

      The facts in this case are similar to the facts in Roederer, except that in this

case there was an acquittal, rather than a dismissal, of the relevant drug charge.

As the Supreme Court recently held, however, a sentencing court may consider

conduct related to an offense for which the defendant has been acquitted. See

United States v. Watts, 117 S. Ct. 633, 638 (1997) (per curiam) (“We therefore

hold that a jury’s verdict of acquittal does not prevent the sentencing court from

considering conduct underlying the acquitted charge, so long as that conduct has

been proved by a preponderance of the evidence.”); see also United States v.

Garcia, 987 F.2d 1459, 1460-61 (10th Cir. 1993) (holding district court may

consider drug quantities associated with drug charge for which defendant was

acquitted in determining defendant’s base offense level).




                                          -8-
      The district court found by a preponderance of the evidence that Carter was

accountable for the drugs in the hotel room and, thus, properly considered the

drug quantity when calculating Carter’s base offense level. See Watts, 117 S. Ct.

at 635-36; Garcia, 987 F.2d at 1460-61. Because possession of these drugs was

“part of the same course of conduct or common scheme or plan as the

[conspiracy] conviction,” the enhancement for possession of a firearm in

connection with the drugs was proper. Roederer, 11 F.3d at 982.

      We therefore conclude the district court did not err by enhancing Carter’s

sentence for possession of a firearm.

      C. Drug Quantities

      Carter argues the district court erred by considering Kenneth Patterson’s

testimony for purposes of calculating the drug quantities attributable to her.

Patterson testified that during 1990 and 1991, 5 he sold Carter approximately five

to ten ounces of crack cocaine per month. Carter was held accountable for sixty

ounces, or 1701 grams, of crack cocaine based on Patterson’s testimony. Carter

argues that Patterson’s testimony does not possess the required “minimum indicia



      5
        As alleged in the indictment, the conspiracy for which Carter was
convicted began in January 1992 and ended in September 1993. Patterson’s sales
to Carter occurred before Carter joined the conspiracy. The district court,
however, held Carter accountable for these drug quantities in determining her
base offense level because it determined the transactions were “part of an ongoing
series of similar and connected offenses.”

                                         -9-
of reliability” because (1) Patterson was a convicted felon who was originally

charged in the conspiracy and pleaded guilty only after agreeing to testify against

the other defendants in exchange for consideration at sentencing; and (2)

Patterson testified that he sold crack cocaine to Carter, which conflicts with the

government’s theory of the case, that Carter and the other defendants bought

cocaine powder, cooked it, and sold it as crack cocaine.

      “We review the district court’s factual findings regarding the quantity of

drugs for which a defendant is held responsible for clear error.” United States v.

Hooks, 65 F.3d 850, 854 (10th Cir. 1995), cert. denied, 116 S. Ct. 797 (1996).

The government must prove the quantity of drugs by a preponderance of the

evidence. See id. The district court may estimate the quantity provided the

information underlying the estimate has a “minimum indicia of reliability.”

United States v. Browning, 61 F.3d 752, 754 (10th Cir. 1995). Furthermore,

“[w]itness credibility at sentencing is a question for the district court.” Id.

      This court has previously upheld drug quantity determinations based on the

testimony of witnesses of questionable credibility. See, e.g., id. at 754-55

(holding district court’s reliance on witnesses who had histories of drug use,

incentives to minimize their own culpability, and criminal records was not clearly

erroneous); United States v. Deninno, 29 F.3d 572, 578 (10th Cir. 1994) (rejecting

argument that district court erred by basing drug quantity determination on


                                          -10-
“uncorroborated statements of individuals of questionable credibility”). The

district court recognized in this case that many of the witnesses had criminal

histories but nevertheless found that all the witnesses, including Patterson, were

credible. The court specifically noted that Patterson’s testimony was both

consistent with and corroborative of the testimony of other witnesses.

Furthermore, Patterson’s testimony was based on his first-hand knowledge of

actual drug sales to Carter. Based on our review of the record, we are not “firmly

convinced that an error has been made.” United States v. Nieto, 60 F.3d 1464,

1469 (10th Cir. 1995), cert. denied, 116 S. Ct. 793 (1996). We therefore

conclude the district court’s reliance on Patterson’s testimony in determining the

drug quantities attributable to Carter was not clearly erroneous.

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.

                                               ENTERED BY THE COURT:



                                               Michael R. Murphy
                                               Circuit Judge




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