                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 09-2788
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              * Appeal from the United States
                                         * District Court for the
      v.                                 * Western District of Missouri.
                                         *
Christopher J. Thomas,                   *      [UNPUBLISHED]
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: April 12, 2010
                                  Filed: July 23, 2010
                                   ___________

Before LOKEN, HANSEN, and MELLOY, Circuit Judges.
                           ___________

PER CURIAM.

       Christopher Thomas was arrested during a confidential informant’s third
purchase of crack cocaine. A warrant search of Thomas’s residence yielded four bags
containing crack cocaine in the laundry room, a shotgun in the bedroom closet, a
loaded Glock pistol in a drawer under the bed, and ammunition for both firearms.
Thomas’s wife told police that Thomas sells crack cocaine but not from the residence,
and that she had observed him cook cocaine in the residence. Thomas admitted the
firearms were his. He was indicted and pleaded guilty to possession with intent to
distribute five grams or more or cocaine base. He then committed additional drug
offenses in the District of Kansas.
       The Presentence Investigation Report recommended a two-level increase
because Thomas possessed a firearm. See U.S.S.G. § 2D1.1(b)(1). Thomas objected
and, at sentencing, presented testimony that he purchased the firearms some ten years
earlier while working at a liquor store that required employees to purchase firearms.
The district court1 overruled the objection and imposed the two-level increase,
resulting in an advisory guidelines sentencing range of 121 to 151 months in prison.
The court sentenced Thomas to 121 months concurrent with his sentence for the
subsequent Kansas offenses.

       On appeal, Thomas argues the district court erred because the government
failed to prove “that it is at least probable that the weapon was connected with the
offense,” quoting United States v. Payne, 81 F.3d 759, 762 (8th Cir. 1996), and United
States v. Hayes, 15 F.3d 125, 127 (8th Cir.), cert. denied, 512 U.S. 1225 (1994).
However, in United States v. Peroceski, 520 F.3d 886, 887 (8th Cir.), cert. denied, 129
S. Ct. 259 (2008), we noted “two competing lines of cases in our circuit” on this
question. Unlike Payne and Hayes, most of our twenty-five prior decisions applied
the standard found in the guidelines commentary, imposing the increase “if the
weapon was present, unless it is clearly improbable that the weapon was connected
with the offense.” Id. at 887-88; U.S.S.G. § 2D1.1 comment. (n.3). Noting the
commentary is binding unless plainly erroneous, and that all other circuits apply the
clearly improbable standard, we held that the government “must simply show that it
is not clearly improbable that the weapon was connected to the drug offense.” Id. at
889.

       We agree with Peroceski and conclude the government easily met the “not
clearly improbable” standard in this case. A stash of crack cocaine was found at the
residence where the firearms were discovered, and Thomas’s wife advised police he


      1
      The HONORABLE HOWARD F. SACHS, United States District Judge for the
Western District of Missouri.

                                         -2-
had cooked cocaine there. The district court did not clearly err in inferring from these
facts a “likely connection” between the previously acquired firearms and the later drug
activities because, as the court explained, “it could be an additional reason for having
drug activities on the premises because the firearms were present.” Though the
controlled buys did not take place at the residence, “[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. Ault, 446 F.3d 821, 824 (8th Cir. 2006) (quotations omitted).

      The judgment of the district court is affirmed.
                     ______________________________




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