                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-1263
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Alan Lee Ault,                           *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: January 12, 2006
                                  Filed: May 4, 2006
                                   ___________

Before LOKEN, Chief Judge, McMILLIAN* and MELLOY, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Alan Lee Ault pleaded guilty to one count of attempting to manufacture
methamphetamine and one count of possessing a firearm after having been convicted
of a domestic violence offense. See 21 U.S.C. §§ 841, 846; 18 U.S.C. § 922(g)(9).
He was sentenced the day after the decision in United States v. Booker, 543 U.S. 200
(2005). Correctly anticipating our interpretation of sentencing procedure under




      *
       The Honorable Theodore McMillian died on January 18, 2006. This opinion
is being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E.
Booker, the district court1 first determined that Ault’s sentencing range under the now-
advisory Guidelines was 235-293 months. Then, the court “considered everything set
forth in 18 [U.S.C. §] 3553(a), (1) through (7), in deciding in my discretion what
sentence to impose.” The court sentenced Ault to concurrent sentences of 240 months
on the drug count and 120 months on the firearm count. Ault appeals, arguing that the
court erred by considering unrelated transactions in determining drug quantity and by
imposing a two-level enhancement for possessing the firearm in connection with his
drug offense.2 We affirm.

                                   I. Background

       In his plea agreement, Ault stipulated to engaging in a number of drug-related
activities in February and March 2004. On February 6, he attempted to steal
anhydrous ammonia from a local business. Two days later, when police officers
investigated possible narcotics activity in a motel room in Cedar Rapids, they found
Ault alone in the room, a bag containing less than 2 grams of methamphetamine in his
pocket, and a loaded sawed-off rifle under the mattress. Ault admitted he had been
smoking methamphetamine “foils.” This rifle was the firearm he later pleaded guilty
to unlawfully possessing.

       On February 20, police received an anonymous tip that methamphetamine was
being manufactured and sold in the garage of the Cedar Rapids residence of John
Peters, where Ault was living from time to time. Early on the morning of March 22,

      1
      The HONORABLE LINDA R. READE, United States District Judge for the
Northern District of Iowa.
      2
       Ault also argues that the district court committed Booker error by applying the
preponderance of the evidence standard at sentencing. We have previously ruled that
the preponderance standard continues to be proper for sentence-enhancing fact
findings. See United States v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir.) (en banc), cert.
denied, 126 S. Ct. 266 (2005).

                                          -2-
officers began surveillance of the Peters residence after smelling ether emanating from
the garage or a nearby truck. When Ault and his girlfriend emerged from the home,
they agreed to be interviewed at the police station. At the sentencing hearing, the
interviewing officer, Investigator Anthony Robinson, testified that Ault denied
knowing of methamphetamine manufacturing at the Peters residence but admitted to
using the drug with Peters three weeks earlier. When Robinson asked where Ault
obtained the methamphetamine, Ault admitted that he had exchanged 400-count
packages of 120-milligram pseudoephedrine pills for one-eighth ounce quantities of
methamphetamine with a man named Josh Willet on six or seven occasions. This
testimony was supported by Robinson’s contemporaneous report of the interview, and
by the testimony of the other officer who was present during the interview.

      In a warrant search of the Peters residence later that day, police found numerous
items used to manufacture methamphetamine in various rooms of the house and in the
padlocked garage. Ault and Peters were indicted for attempting to manufacture and
aiding and abetting the attempted manufacture of methamphetamine on or about
March 22, 2004. Ault was later charged with the firearm offense in a superseding
indictment.

        The Presentence Investigation Report recommended that the drug quantities
attributed to Ault under U.S.S.G. § 2D1.1 should include the one gram found in his
pocket on February 8, the 4.72 grams that could have been manufactured from the
items seized in the March 22 warrant search, and -- most significantly for base offense
level purposes -- the 288 grams of pseudoephedrine Ault admitted exchanging with
Josh Willet. The PSR also recommended a two-level enhancement of the
methamphetamine manufacturing offense for Ault’s possession of the loaded sawed-
off rifle on February 8. Ault objected to these portions of the PSR. At the end of the
sentencing hearing, the district court found that the PSR “correctly scored the
guidelines sentence [based] upon the undisputed facts in the presentence report, as
well as the evidence that I heard from the two police officers today.”

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                                II. Drug Quantity

       Ault first argues that the district court clearly erred when it included the
pseudoephedrine pills he exchanged with Josh Willet in determining the offense level
for his methamphetamine manufacturing offense.

       The base offense level for drug offenses under the Guidelines is based upon
drug quantity, which may include “[t]ypes and quantities of drugs not specified in the
count of conviction” if they are relevant conduct. See U.S.S.G. § 2D1.1(c) &
comment. (n.12). Relevant conduct is defined to include “all acts and omissions [of
the defendant] that were part of the same course of conduct or common scheme or
plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2) & comment. (backg’d.).
Factors to be considered in making this determination include the similarity,
regularity, and temporal proximity of the charged and uncharged conduct. See
U.S.S.G. § 1B1.3, comment. (n.9); United States v. Anderson, 243 F.3d 478, 485 (8th
Cir.), cert. denied, 534 U.S. 903 (2001). Whether uncharged conduct is part of the
same course of conduct as the offense of conviction is a fact-intensive inquiry. Thus,
we review the sentencing court’s relevant conduct findings for clear error. See United
States v. Spence, 125 F.3d 1192, 1195 (8th Cir. 1997), cert. denied, 523 U.S. 1087
(1998).

        Ault argues that the Willet exchanges were not relevant conduct because the
government (i) presented no evidence establishing when the exchanges took place and
(ii) failed to show “that the conduct involving Mr. Willet would have related to the
attempt to manufacture methamphetamine on March 22, 2004.” The first point is
factually incorrect. On cross-examination, Investigator Robinson testified:

      Q.     Did you ask [Ault] when these transactions [with Willet] had
             taken place?

      A.     No, I did not.

                                         -4-
      Q.     All right. So these transactions could have taken place four years
             ago?

      A.     In the context of when I was asking this, he said he was a
             recovering user. He last used a few weeks ago. And I’m asking,
             “Where did you get your meth from?” I -- I didn’t ask him if it
             happened four years ago, but in the context of the questioning, it
             was when he last used; two or three weeks earlier. That’s how he
             was obtaining his meth.

Ault’s second point misconstrues the nature of the relevant conduct inquiry. The
Willet exchanges may be found to be relevant conduct if they were part of “a
continuous pattern of drug activity.” United States v. Lawrence, 915 F.2d 402, 408
(8th Cir. 1990) (quotation omitted). Thus, they need not be directly related to the
attempt to manufacture on March 22.

       Here, the PSR noted, without objection, that Ault was a long-time regular user
of methamphetamine who would consume as much as an “eight-ball” per day. The
government established that, within a six-week period, Ault attempted to steal
anhydrous ammonia that is used to manufacture methamphetamine; possessed and
smoked methamphetamine in a motel room with a loaded firearm; exchanged
pseudoephedrine pills, an important precursor, for one-eighth ounce quantities of
methamphetamine; and attempted to manufacture methamphetamine with John Peters
at their residence. Viewed from Ault’s perspective, his drug activities during this
period included attempting to manufacture methamphetamine and providing
equipment and precursor chemicals to other manufacturers, all for the purpose of
obtaining the drug for his own use. All this conduct involved the same drug and
occurred within a short time period. Based upon this evidence and our prior relevant
conduct decisions, the district court did not clearly err in finding that the
pseudoephedrine pills exchanged with Willet were relevant conduct in determining
the base offense level for Ault’s drug offense. Compare Anderson, 243 F.3d at 485.


                                         -5-
                          III. The Firearm Enhancement

        Ault next argues that the district court clearly erred by increasing the total
offense level for his drug offense by two-levels because “a dangerous weapon
(including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). The Guidelines
provide that this enhancement “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, comment. (n.3). “[T]he dangerous weapon enhancement applies if the
firearm is present during ‘relevant conduct,’ as defined by U.S.S.G. § 1B1.3(a)(2), not
merely during the offense of conviction.” United States v. Savage, 414 F.3d 964, 966
(8th Cir. 2005); see United States v. Barresse, 115 F.3d 610, 612 (8th Cir. 1997). We
review the district court’s finding that the weapon was connected to the drug offense
for clear error. See United States v. Britton, 68 F.3d 262, 265 (8th Cir. 1995).

       Ault argues that the sawed-off rifle was seized in his motel room on February
8, many weeks before the attempted manufacturing activity on March 22 and during
an incident in which he was possessing and using but not manufacturing
methamphetamine. This contention, like his drug quantity contention, ignores the
scope of the relevant conduct concept as defined in the Guidelines. In a two month
period beginning February 6, 2004, Ault attempted to steal anhydrous ammonia,
exchanged pseudoephedrine pills for methamphetamine, and attempted to manufacture
the drug with John Peters. Without question, these acts “were part of the same course
of conduct . . . as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). Also during this
period, Ault was found possessing and using methamphetamine in a motel room.
Under the mattress was a sawed-off rifle, a weapon that “lack[s] usefulness except for
violent and criminal purposes.” United States v. Allegree, 175 F.3d 648, 651 (8th Cir.
1999).

       As we have explained, this February 8 incident was relevant conduct because
it was part of Ault’s course of conduct -- his interrelated drug activities -- during this

                                           -6-
two-month period. Thus, the district court’s § 2D1.1(b) finding was not clearly
erroneous because the firearm was present during relevant conduct. Moreover, even
if a closer connection with Ault’s methamphetamine manufacturing activities were
required, it is surely more likely than not that this dangerous weapon was stored in the
motel room for use in Ault’s on-going efforts to steal and purchase equipment and
precursor chemicals that he could use to exchange for methamphetamine or to
manufacture methamphetamine himself.

      The judgment of the district court is affirmed.
                     ______________________________




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