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USCA1 Opinion

February 26, 1992

[NOT FOR PUBLICATION]

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No. 91-1910

UNITED STATES,
Appellee,
v.
MICHAEL J. FIELDS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
___________________
___________________
Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Robert R. Bennett on brief and Objection To Motion For


___________________
Summary Disposition for appellant.
Jeffrey R. Howard, United States Attorney, and Peter E.
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Papps, First Assistant U.S. Attorney, on Memorandum In Support Of
_____
Motion For Summary Disposition for appellee.

__________________
__________________

Per Curiam.
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in

the

driver's

The appellant, Michael Fields, was arrested


seat of

passenger

"buy/bust" operation conducted


Fields' passenger, Philip
Edward

Dunbar, a

during a

by undercover police

Wight, was

confederate

van

drug

agents.

also arrested, as

of Wight

and Fields

was

who had

driven to the scene in his own car and negotiated the sale of
ten

pounds of marijuana

recovered almost
later

found

ten pounds of

a loaded

unzippered gun bag on


newspapers.

to the

The police

undercover agents.
marijuana from the

pistol and

Police
van, and

"flash suppressor"

the floor of the van,

in an

underneath some

also retrieved a gun from

the floor

of Dunbar's car.
The government
possess marijuana

charged

Fields with

with intent to

(1) conspiracy

to

distribute, (2) possession

of marijuana with intent to distribute, and (3) possession of


a firearm during the commission of a
A

jury

acquitted

convicted
him

Fields

of the

levels to

penalty under the

conspiracy

charges.

2D1.1(b)(1).

but

the district court, calculating


Sentencing Guidelines,

maximum allowed

added two

of a dangerous

of a drug offense.

The court sentenced Fields

months, the

charge,

Notwithstanding the

his "offense level" for possession

weapon during the commission

sixteen

the

other

acquittal on the gun charge,


Fields'

of

drug trafficking crime.

U.S.S.G.

to a prison term of

under the

Guidelines.

Had the court not made the two-level enhancement, the maximum
penalty would have been twelve months.
2

On appeal, Fields challenges only the two-level sentence


enhancement.
when it

He

argues first that the

enhanced his

which a jury had

sentence on

district court erred

the basis

found him not guilty.

of conduct

of

Fields acknowledges

that

his argument

United States v.
_____________

is

directly contrary

Mocciola, 891 F.2d


________

to our

13, 17 (1st Cir.

that facts underlying a prior acquittal may


the sentencing

court when

those facts

preponderance of the evidence, but he


Mocciola on the
________

1991).

v. Brady,
_____

are

supported by

Ninth Circuit that

invites us to overrule

928 F.2d 844,

We note that every

1989)

be considered by

basis of the Ninth Circuit's

in United States
_____________

holding in

850-52 (9th

court of appeals

has considered the issue

recent opinion
Cir.

other than the


has agreed with

Mocciola,1 and decline the invitation.


________
Fields also argues that the
was insufficient to
remain mindful
pertinent

to

support the

that the
sentencing

sentence enhancement.

determination of
need

preponderance of the evidence


clear error."

evidence presented at trial

only

be

"We

factbound matters
supported

and can be set aside

by

only for

United States v. David, 940 F.2d 722, 739 (1st


_____________
_____

____________________

1 See, e.g., United States v. Coleman, 947 F.2d 1424 (10th


_________
_____________
_______
Cir. 1991); United States v. Manor, 936 F.2d 1238, 1243 (11th
_____________
_____
Cir. 1991); United States v. Lawrence, 934 F.2d 868 (7th Cir.
_____________
________
1991); United States v. Duncan, 918 F.2d 647, 652 (6th Cir.
_____________
______
1990); United States v. Rodriguez-Gonzalez, 899 F.2d 177 (2d Cir.
_____________
__________________
1990); United States v. Dawn, 897 F.2d 1444 (8th Cir. 1990);
_____________
____

United States v. Isom, 886 F.2d 736 (4th Cir. 1989);


______________
____
States v. Juarez-Ortega, 866 F.2d 747 (5th Cir. 1989);
______
_____________
States v. Ryan, 866 F.2d 604 (3d Cir. 1989).
______
____

United
______
United
______

Cir. 1991).
U.S.S.G.

There was no such error here.

2D1.1(b)(1) instructs the sentencing court to make

the enhancement

whenever a weapon is "present,

clearly improbable
offense."
"present"
evidence

The commentary to

that the

Fields does
in this

not

case, and

from which to

found in the

weapon was

van and the

dispute

connected with

the

that

was

the district

infer a

unless it is

a weapon

court

had ample

connection between

drug offense: (1) Edward

uncontradicted testimony that

he gave the

Fields' apartment, (2) the fact that

the gun
Dunbar's

gun to Fields

in

Dunbar did not give the

gun to Fields until shortly before the drug sale

was to take

place, and (3) Dunbar's testimony (again uncontradicted) that


he instructed

Fields to

consider using

the gun

to support

Dunbar if the deal went sour and turned violent.


Given this evidence, "we would

be blinking reality were

we to hold that the weapon's presence was purely coincidental

or that any connection between it and the crime of conviction


was improbable."
1011

United States v. McDowell, 918


______________
________

(1st Cir. 1990).

sale only

Fields carried

because Dunbar wanted

violence; had there


would have

van -- allegedly out of


consequence.

to the drug

protection in the

been no drug

been no gun.

the gun

F.2d 1004,

event of

deal in the offing,

The gun's precise

there

location in the

Fields' immediate reach -- is

of no

The defendant need not be found with his finger

quivering on the trigger in order to connect the gun with the


crime.

The

very most

the

courts

require

is sufficient

proximity to allow
decides to use
F.2d 480 (7th
truck in

the defendant to

it.

retrieve the gun if

See, e.g., United States


_________ _____________

Cir. 1990) (gun

which defendant

v. Armond, 920
______

found under driver's seat

was passenger);

United States
_____________

McDowell, 918 F.2d at 1011 (pistol seized from


________

he

of
v.

vehicle which

defendant drove to airport en route to pick up drugs); United


______
States v. Paulk,

917 F.2d 879,

882 (5th Cir. 1990)

(pistol

______

_____

found in fastened
defendant

was

glove compartment

arrested

of defendant's car

"some distance"

States v. Heldberg, 907


______
________

from

and

car); United
______

F.2d 91, 93-94 (9th Cir.

1990) (gun

found in briefcase in trunk of defendant's car).


Finally,

Fields

challenges

evidence connecting him to the


car).

As

the

gun in

the

sentence enhancement, the

the

van was

enough

issue is moot.

to prompt

In any event,

v. Bianco, 922 F.2d 910, 912 (1st


______
that

a codefendant's

weapon is foreseeable
that

their

exchange

of

cash."

Id.
___

moreover,

possession

collaborative

criminal

controlled

substances for

it should

the
we

United States
_____________

Cir. 1991).

to a defendant with

Once Dunbar

the

show that Dunbar's use of

was "reasonably foreseeable" to Fields.

inferable

of

second gun (found in Dunbar's

think the evidence was adequate to


a gun

sufficiency

gave

have become

It is "fairly
of

a dangerous

reason to believe

venture
a

Fields

includes

large
a

an

amount of

gun to

carry,

manifestly foreseeable

to

Fields that Dunbar might carry a gun himself.


The

government's

motion

for
5

summary

disposition

is

granted.

The motion to dispense with oral argument is moot.

Affirmed.
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