United States v. Vibanco-Sanchez

1The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-1641
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Wilbur L. Jackson, also known as * District of Nebraska
The Blue Falcon, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 19, 2001
Filed: February 23, 2001
___________
Before McMILLIAN, RICHARD S. ARNOLD, and FAGG, Circuit Judges.
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PER CURIAM.
Wilbur L. Jackson appeals from the final judgment entered in the District Court1
for the District of Nebraska upon his guilty plea to possessing cocaine base with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced
appellant to 135 months imprisonment and 5 years supervised release. For reversal,
appellant argues that the district court erred in applying an enhancement for possessing

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a firearm in connection with the offense and in denying appellant’s motion to compel
the government to file a motion for downward departure for substantial assistance. For
the reasons discussed below, we affirm.
The essence of Jackson’s challenge to the firearm enhancement is that someone
else admitted owning the gun. This is not dispositive, however, because Jackson did
not contest his dominion over the apartment where the gun and drugs were located.
See United States v. Belitz, 141 F.3d 815, 818 (8th Cir. 1998) (third party’s ownership
of gun is not dispositive if defendant had constructive possession); United States v.
McCracken, 110 F.3d 535, 541 (8th Cir. 1997) (firearm enhancement may be based on
constructive possession, which includes dominion or control over premises where item
is located). The district court could infer, from the presence of the loaded gun in the
apartment with the drugs, that they were related. See Belitz, 141 F.3d at 817-18 (court
could conclude readily accessible gun enhanced defendant’s comfort level while drugs
were in home); United States v. Regans, 125 F.3d 685, 686 (8th Cir. 1997) (firearm’s
physical proximity to narcotics may provide sufficient nexus), cert. denied,
523 U.S. 1065 (1998). The existence of ammunition in Jackson’s bedroom, moreover,
strengthened the inference that he was involved with the gun. The district court did not
clearly err in applying the firearm enhancement. See Brown v. United States, 169 F.3d
531, 532 (8th Cir. 1999) (standard of review).
Nor did the district court err in denying Jackson’s motion to compel because he
failed to show that the government’s refusal to file a motion for downward departure
was in bad faith, irrational, or based on an unconstitutional motive. See Wade v.
United States, 504 U.S. 181, 186 (1992) (mere showing that defendant provided
substantial assistance, whether standing alone or coupled with generalized allegations
of government’s improper motive, is insufficient). Regardless of how “good” or
“accurate” Jackson’s information was, the plea agreement vested the government with
the sole discretion to evaluate whether it constituted substantial assistance. The
government rationally concluded that it did not because, as three police officers

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testified at an evidentiary hearing on this matter, Jackson’s information was not helpful
in locating or prosecuting any other criminals. See United States v. Due, 205 F.3d
1030, 1034 (8th Cir. 2000) (“Providing ‘truthful information’ and providing ‘substantial
assistance’ are not necessarily interchangeable. The defendant gave the government,
in . . . the [plea] agreement, the sole right to determine whether or not the information
she provided was truthful information that amounted to ‘substantial assistance.&”);
United States v. Barresse, 115 F.3d 610, 612 (8th Cir. 1997) (only unambiguous,
unconditional plea-agreement promises to file downward-departure motions are binding
on government).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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