United States of America v. JAMES DUNLAP (98-3855) and JAKHAN THOMAS (98-3856)

16 United States v. Dunlap, et al. Nos. 98-3855/3856
persuasive, either individually or collectively. Accordingly,
the judgments of sentence are AFFIRMED.
*The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0116P (6th Cir.)
File Name: 00a0116p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
J AMES DUNLAP (98-3855)
and J AKHAN THOMAS
(98-3856),
Defendants-Appellants.
;>

1
Nos. 98-3855/3856
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 97-00128—Edmund A. Sargus, Jr., District Judge.
Argued: September 22, 1999
Decided and Filed: March 31, 2000
Before: KRUPANSKY and NORRIS, Circuit Judges;
GWIN,* District Judge.

-- 1 of 8 --

2 United States v. Dunlap, et al. Nos. 98-3855/3856
_________________
COUNSEL
ARGUED: Terry K. Sherman, Columbus, Ohio, Frederick
D. Benton, Jr., Columbus, Ohio, for Appellants. David J.
Bosley, ASSISTANT UNITED STATES ATTORNEY,
Columbus, Ohio, for Appellee. ON BRIEF: Terry K.
Sherman, Columbus, Ohio, Frederick D. Benton, Jr.,
Columbus, Ohio, for Appellants. David J. Bosley,
ASSISTANT UNITED STATES ATTORNEY, Columbus,
Ohio, for Appellee.
_________________
OPINION
_________________
KRUPANSKY, Circuit Judge. The defendants-
appellants James E. Dunlap, also known as “Fatty”
(“Dunlap”), and Jakhan Thomas, also known as “Ja-Con”
(“Thomas”), have each contested his respective sentence
imposed following his conviction entered upon his guilty plea
to conspiring to possess and distribute cocaine base (or
“crack”). Both defendants have assailed their sentencing
enhancements for possession of a dangerous weapon in
connection with that offense. Dunlap has additionally
challenged the district court’s quantification of cocaine base
attributable to him, whereas Thomas has disputed the
sentencing bench’s rejection of his application for a
downward sentencing departure.
Beginning on approximately December 1, 1996, and
continuing until July 30, 1997, agents of the Columbus Police
Department (“CPD”) and the Federal Bureau of Alcohol,
Tobacco, and Firearms (“ATF”) jointly investigated a major
narcotics consortium which encompassed Dunlap and
Thomas, together with at least three additional confederates.
On December 14 or 15, 1996, surveillance operatives
videotaped Thomas’ sale of a Glenfield .22 caliber (model no.
Nos. 98-3855/3856 United States v. Dunlap, et al. 15
powerless to revisit, modify, amend, abrogate, supersede, set
aside, vacate, avoid, nullify, rescind, overrule, or reverse any
prior Sixth Circuit panel’s published precedential ruling of
law. Washington, 127 F.3d at 516-17 & n.9; Smith, 73 F.3d
at 1418.
In a bid to surmount that obstacle to appellate relief,
Thomas has argued that, because the 100 to 1 sentencing ratio
is purportedly unfair irrespective of its previously adjudicated
constitutionality, the district court abused its discretion by
failing to award him a downward sentencing departure under
18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0 (Policy Statement)
by reason thereof. However, although a sentencing court’s
decision to depart from the Guidelines is reviewable for abuse
of discretion, Koon v. United States, 518 U.S. 81, 96-100
(1996), its decision not to depart is insulated from appellate
scrutiny, unless the sentencing judge legally erred by failing
to comprehend the lawful extent of his or her power to depart.
United States v. Coleman, 188 F.3d 354, 357 (6th Cir. 1999)
(en banc); United States v. Landers, 39 F.3d 643, 649 (6th
Cir. 1994).
In the case sub judice, the initial forum possessed no lawful
authority to depart downwardly from Thomas’ Guidelines-
mandated sentencing range by reason of the 100 to 1
sentencing disparity at issue; thus no error of law infected its
failure to do so. See United States v. Watkins, 179 F.3d 489,
504 (6th Cir. 1999) (remarking that “[t]his Court has held
repeatedly that objections to the Sentencing Guidelines’
disparate punishments for crimes involving crack cocaine and
cocaine powder are meritless and the disparity is insufficient
grounds for downward departure from guideline sentences.”)
(emphasis added) (quoting United States v. Welch, 97 F.3d
142, 154 (6th Cir. 1996) (citations omitted)); United States v.
Gaines, 122 F.3d 324, 328-31 (6th Cir. 1997) (reversing a
trial court’s downward sentencing departure anchored in the
100 to 1 crack-to-power cocaine differential).
This review has carefully considered each argument
advanced by the defendants-appellants but finds none

-- 2 of 8 --

14 United States v. Dunlap, et al. Nos. 98-3855/3856
13Standing alone, 44 grams of cocaine base would incite an offense
level of 30. U.S.S.G. § 2D1.1(c)(5). (The maximum possible overall
Guidelines offense level is 38, whereas the lowest is six). The seizure of
a major volume of cocaine base at a fortified high-traffic “crack house”
necessarily raises the reasonable inference that those illegal stimulants
were possessed for distribution purposes. See United States v. Harris,
192 F.3d 580, 589 (6th Cir. 1999) (ruling that the government had proved
at trial beyond a reasonable doubt, via circumstantial evidence, that the
defendant had possessed a mere 5.9 grams of crack for distribution rather
than personal consumption, because the defendant carried that cocaine
base, packaged in twenty small individually wrapped units for convenient
street dispensation, while armed, in an urban district reputed for narcotics
activity). The sentencing court’s discrediting of Tyson’s assertion that he
possessed those drugs for personal consumption is not subject to appellate
re-evaluation. United States v. Gessa, 57 F.3d 493, 496 (6th Cir. 1995).
rather than “personal use,” crack;13 and further, that said
crack was either the property of Dunlap, jointly possessed by
Dunlap and Tyson, and/or foreseeably possessed by Tyson
within the orbit of his cooperative criminal relationship with
Dunlap. Accordingly, the trial court’s imputation, against
Dunlap, of the 44 grams of crack uncovered at 3114
Allegheny Avenue was untainted by reversible error.
Additionally, Thomas has contested the constitutionality of
the Congressionally-mandated 100 to 1 statutory sentencing
disparity between crack cocaine and powder cocaine, whereby
a given quantity of cocaine base triggers a penalty equivalent
to that of one hundred times that weight of cocaine powder.
See 21 U.S.C. § 841(b)(1) (A) & (B); U.S.S.G. § 2D1.1(c)
(Drug Quantity Table). However, in his brief, Thomas
conceded that “this issue has been previously decided” by the
Sixth Circuit. See, e.g., United States v. Smith, 73 F.3d 1414,
1417-18 (6th Cir. 1996) (overruling a constitutional attack
against the subject statutory sentencing disparity by applying
pertinent binding Sixth Circuit precedents); United States v.
Washington, 127 F.3d 510, 516-18 & n.9 (6th Cir. 1997), cert.
denied, 118 S. Ct. 2718 (1998). This panel is precluded from
accommodating Thomas’ invitation to reconsider the
previously adjudicated constitutional issue which he has
framed, because a subsequent panel of this circuit court is
Nos. 98-3855/3856 United States v. Dunlap, et al. 3
1The rifle’s stock had been re-fashioned to resemble a pistol’s grip,
and its serial number had been obliterated.
2Peace constables surreptitiously recorded numerous illegal
transactions at that location, including those described herein, via a
clandestine video and audio taping system.
60) sawed-off rifle1 to an unidentified confidential informant
(“CI”) for $50 at the CI’s residence (986 Seymour Avenue,
Columbus, Ohio).2 During that exchange, Thomas weighed
two grams of cocaine base on the CI’s digital scale, although
the CI did not then purchase any of that crack.
Thereafter, the CI and covert investigators regularly
purchased crack cocaine directly from Thomas. On March
23, 1997, in response to the CI’s pager signal and a follow-up
telephone conference, Thomas personally delivered 6.2 grams
of crack to the CI’s residence, which he (Thomas) sold to an
undercover agent. On June 19, 1997, also at the CI’s
domicile, a clandestine investigator posing as a customer
solicited twelve grams of crack from Thomas. Using the CI’s
residential telephone, Thomas contacted one of his
accomplices, Frank Woods, to obtain the telephone number
of Bryan Williams, a supplier of narcotics to the syndicate.
Following Thomas’ telephone call to Williams, Thomas
instructed the CI to drive him to 1418 Clifton Avenue,
Columbus, Ohio, where Thomas purchased crack from an
unidentified male. The CI then returned Thomas to his (the
CI’s) residence, where Thomas, using the CI’s digital scale,
determined the weight of his recently-acquired contraband at
eleven grams. Because that quantity fell short of satisfying
the undercover detective’s order, Thomas added several rocks
of crack which he took from a plastic bag inside his sock.
Crime laboratory technicians later determined that the
aggregate amount of cocaine base vended by Thomas on that
occasion weighed 11.8 grams.
Approximately one month later, on July 15, 1997, again at
the CI’s residence, a law enforcement officer masquerading
as a crack addict offered to purchase one ounce of the

-- 3 of 8 --

4 United States v. Dunlap, et al. Nos. 98-3855/3856
3Tyson and Dunlap had each executed, as co-tenants, a rental
agreement for that apartment.
4In total, law enforcement personnel seized 44 grams of cocaine base,
coupled with 45.4 grams of marijuana, during the July 17, 1997 search of
3114 Allegheny Avenue. The marijuana is not material to the instant
appeal.
controlled substance from Thomas. In response, Thomas
dialed a beeper number, which subsequently prompted a
return call from defendant Dunlap via a telephone registered
to co-conspirator Dashawn Tyson at 3114 Allegheny Avenue,
Apartment C, Columbus.3 Following his conversation with
Dunlap, Thomas instructed the CI to drive him and their
prospective client (the covert detective) to “Chuck’s Carry-
Out,” 3140 Allegheny Avenue, Columbus, which was located
a short distance from Tyson’s domicile. Thomas then
initiated a call from a nearby public telephone booth; minutes
later, Dunlap arrived at the scene. Thomas immediately
exited the CI’s automobile, entered Dunlap’s vehicle, and
momentarily returned to the CI’s vehicle toting 24.8 grams of
crack cocaine, which he negotiated to the incognito
investigator for $1,080. Unbeknownst to Thomas and
Dunlap, officers had previously registered the serial numbers
of those Treasury bills.
Two days later, July 17, 1997, Columbus peace officers
executed a search warrant at Tyson’s residence, 3114
Allegheny Avenue, Apartment C. Inside that dwelling, the
CPD raiders discovered Tyson and Williams, accompanied by
two other individuals. Detectives surfaced United States
currency totaling $2,700, including $800 of the recorded bank
notes which the undercover buyer had used to purchase crack
from Dunlap, through Thomas, two days previously,
concealed within a safe inside an upstairs bedroom closet,
together with 25.1 grams of crack. An additional $800 in
cash was also discovered in the closet. An additional 18
grams of cocaine base was found in the kitchen near a loaded
nine millimeter Highpoint handgun. The officers also located
0.9 grams of cocaine base on the living room floor.4 A
Nos. 98-3855/3856 United States v. Dunlap, et al. 13
v. Owusu, 199 F.3d 329, 347-48 (6th Cir. 2000); United
States v. Hill, 79 F.2d 1477, 1485-86 (6th Cir. 1996); United
States v. Cochran, 14 F.3d 1128, 1132 (6th Cir. 1994).
Next, Dunlap has faulted the district judge’s attribution to
him of the 44 grams of crack seized during the Allegheny
Avenue raid. As stated previously, a convicted offender
should be charged, at sentencing, with all unlawful acts
committed within the scope of his offense of conviction
(“relevant conduct”), including uncharged narcotics
foreseeably possessed by his compatriot in furtherance of
their coordinated distribution enterprise. U.S.S.G.
§ 1B1.3(a)(1)(A) & (B); United States v. Davern, 970 F.2d
1490, 1493-94 (6th Cir. 1992) (en banc); see U.S.S.G.
§ 1B1.3, comment. (n.2) (positing that a conspirator is
accountable for narcotics possessed by his cohort if that
possession was both in furtherance of, and reasonably
foreseeable in connection with, jointly undertaken criminal
activity); United States v. Ledezma, 26 F.3d 636, 646 (6th Cir.
1994). “The government bears the burden of proving the
quantity of drugs chargeable to a defendant for sentencing
purposes by a preponderance of the evidence. Like other
factual findings, the sentencing court’s drug quantity
determination is reviewable only for clear error.” Gessa, 57
F.3d at 496 (citations omitted).
Dunlap has claimed that he did not own the 44 grams of
cocaine base discovered at Allegheny Avenue. In support, he
reiterated his allegation that he lacked unlimited access to the
apartment whereas numerous unrelated individuals frequented
that locale for narcotics transfers and/or consumption; and he
has touted Tyson’s proclamation that he owned all of the
implicated cocaine base for his personal use rather than
conspiratorial distribution. However, the proof, recounted
above, that Dunlap engaged in concerted cocaine trafficking
with Tyson at and from the Allegheny Avenue address
sufficiently evidenced, by a preponderance, that the
significant quantity of crack in question was “distribution,”

-- 4 of 8 --

12 United States v. Dunlap, et al. Nos. 98-3855/3856
cannot be gainsaid, the trial court’s two-point weapons
enhancement of Thomas’ offense level was not clearly
erroneous.
The district court similarly added the two-point weapons
enhancement to Dunlap’s offense level tabulation, finding
that he actually or constructively possessed one, or both, of
the two loaded handguns confiscated at the crack den by CPD
operatives on July 17, 1997. Dunlap has contended that he
did not own either of those pistols, that he lacked ready access
to that address (3114 Allegheny Avenue, Apartment C)
because Tyson solely resided there, and that he lacked actual
knowledge of the existence of the subject pistols. However,
Dunlap had co-signed the lease for that apartment, where he
frequently conducted narcotics trade. During the CPD raid,
agents surfaced certain of Dunlap’s possessions, including a
retail receipt memorializing Dunlap’s purchase of a
telephonic pager, photographs of Dunlap, and mail addressed
to Dunlap at that location. Additionally, on July 15, 1997,
Dunlap had personally responded to Thomas’ telephone page
by placing a return call from the Allegheny Avenue residence,
which culminated in Dunlap’s sale, through Thomas, of 24.8
grams of crack to an incognito detective. Additionally,
surveillance intelligence revealed that Dunlap had been
present at the Allegheny Avenue apartment on July 16, 1997,
the day preceding the warrant execution which would
ultimately yield the two firearms.
Consequently, no clear error invalidated the district court’s
finding that Dunlap jointly occupied and/or controlled the
Allegheny Avenue apartment as a co-tenant with his
confederate Tyson. Dunlap exercised access, control, and/or
dominion over those premises, which served as a “safe house”
for the crack cartel’s distribution activities. Furthermore, the
presence therein of weapons owned by his
roommate/accomplice Tyson which were connected to the
conspiracy’s narcotics business was reasonably foreseeable.
Hence, the sentencing court properly imputed constructive
possession of those firearms to Dunlap, even if he lacked
actual knowledge. U.S.S.G. § 1B1.3(a)(1)(B); United States
Nos. 98-3855/3856 United States v. Dunlap, et al. 5
5Counts two, three, five, six, and seven averred that Thomas
unlawfully possessed with intent to distribute, or distributed, cocaine
base, on December 14, 1996, March 23, 1997, June 19, 1997, and July 15,
1997 (two counts), respectively. Counts six and eight alleged that Dunlap
possessed cocaine base with intent to distribute on July 15, 1997 and July
17, 1997, respectively. Count four implicated only Frank Woods, and
count nine concerned only Bryan Williams.
loaded Browning .380 pistol, together with an ammunition
magazine, was secreted within a living room couch, and a gun
case containing two additional ammunition magazines was
hidden behind that couch. The investigators also uncovered
two electronic pagers plus a purchase receipt for a beeper sold
to James Dunlap, along with correspondence and photographs
belonging to Dunlap. A digital scale was found on the
kitchen counter.
On October 14, 1997, a federal grand jury returned a nine-
count indictment against Dunlap, Thomas, Woods, Williams,
and Tyson. Count one alleged that, commencing around
December 1, 1996 and continuing until October 14, 1997, the
five defendants had conspired to possess with intent to
distribute, and/or distribute, more than five grams of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(iii),
and § 846. Count one further specified that the defendants
conducted crack trafficking from, inter alia, 986 Seymour
Avenue and 3114 Allegheny Avenue, Apartment C; and that
Dunlap, Thomas, and Tyson used firearms in furtherance of
the charged conspiracy. Additional counts alleged specific
instances of crack distribution by Dunlap, Thomas, and/or
other indicted participants in the ring.5
Ultimately, Dunlap and Thomas each pleaded guilty, under
Fed. R. Crim. P. 11, to the first count, in exchange for
dismissal of all other charges. The district court sentenced
both defendants on July 16, 1998. During his sentencing
proceeding, Thomas opposed the United States’ requested
two-level augmentation to his offense level for possession of
a firearm, and also moved for a downward departure from his
sentencing range mandated by the United States Sentencing

-- 5 of 8 --

6 United States v. Dunlap, et al. Nos. 98-3855/3856
6The initial court computed Thomas’ sentence by matching his
offense level (31) with his criminal history category (I), which produced
an imprisonment range of 108 to 135 months. U.S.S.G. Chap. 5, Pt. A
(Sentencing Table). Accordingly, Thomas incurred the least punitive
detention term permissible under the Sentencing Guidelines.
7Like Thomas, Dunlap had merited an offense level of 31 and a
criminal history categorization of I; thus, his 108 month penalty was the
most lenient allowed by the Guidelines. See note 6 above.
8A finding of fact is clearly erroneous when “the reviewing court on
the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” Anderson v. City of Bessemer City, 470
U.S. 564, 573 (1985) (citation omitted). A reviewing bench should
sustain a sentencing court’s factual finding if it was supported by “some
Guidelines (effective November 1, 1997) (“U.S.S.G.”). The
sentencing bench rejected both of Thomas’ applications, and
consequently condemned him to 108 months of correctional
confinement,6 to be followed by four years of supervised
release, and exacted the $100 felony special assessment
mandated by 18 U.S.C. § 3013(a)(2)(A). Likewise, at
Dunlap’s sentencing hearing, the trial judge, after overruling
his objections to the government’s proposed two-point
firearms enhancement to his offense level, as well as
attribution against him of the 44 grams of crack seized during
the July 17, 1997 search of 3114 Allegheny Avenue,
committed Dunlap to the United States Bureau of Prisons for
108 months,7 to be followed by four years of supervised
release, and fined him $1,000 plus the $100 mandatory
assessment.
On review, Thomas and Dunlap have each challenged the
district court’s two-degree increase of his base offense level
for possession of a “dangerous weapon,” namely a firearm,
during a controlled substance trafficking offense. U.S.S.G.
§ 2D1.1(b)(1). A sentencing court’s determination that a
convicted defendant possessed a dangerous weapon during
the commission of a drug distribution offense constitutes a
factual finding reviewed for clear error under the
preponderance of the evidence standard.8 18 U.S.C.
Nos. 98-3855/3856 United States v. Dunlap, et al. 11
similar offenses implicating most firearms of types not listed in section
5845(a)).
(expounding that “[t]he enhancement for weapon possession
reflects the increased danger of violence when drug traffickers
possess weapons.”); Gibson, 135 F.3d at 1128 (“It seems
apparent that the policy underlying the possession of a firearm
enhancement is to punish those defendants engaging in drug
transactions who present, by the possession of the firearm, an
increase in the likelihood of violence at the time of the
transaction.”); Duncan, 918 F.2d at 651 (“the presence of
firearms increases the level of danger and justifies a stiffer
sentence.”); Castillo, 979 F.2d at 10-11 (explaining that the
defendant’s mere possession of a weapon during narcotics
commerce, including a firearm which the defendant intended
to sell to his drug customer, triggered the section 2D1.1(b)(1)
enhancement because the possibility existed that the
defendant “would have used the gun during the drug
transaction had he thought it necessary.”) Beyond dispute,
Thomas could have aggressively deployed his rifle, while in
possession of “distribution” crack, at any moment prior to his
transfer of that weapon to the CI.
Thus, even if Thomas had carried the modified rifle to the
CI’s residence with an intent to sell that weapon, the fact
remains that he also carried that weapon “in connection with”
a narcotics transgression. See Gibson, 135 F.3d at 1128;
Castillo, 979 F.2d at 10-11. Patently, Thomas has not
satisfied his burden of proving the “clear improbability” of
any link between the gun and the drugs. He has proffered no
evidence of “special circumstances” which might disqualify
the subject armament from the classification of “criminal
instrumentality” weapons, such as inoperability, status as a
valuable collector’s piece, or being a sporting long arm ill
suited for criminal purposes. To the contrary, the weapon at
issue was fully serviceable, was not an antique, and had been
modified to facilitate its rapid deployment in a non-
recreational confrontational context. Because the patent
connection between the gun and Thomas’ criminal career

-- 6 of 8 --

10 United States v. Dunlap, et al. Nos. 98-3855/3856
Greer, 588 F.2d 1151, 1155 (6th Cir. 1978). See, e.g., 26 U.S.C.
§ 5845(a), defining “firearm(s)” which are subject to certain special
registration requirements and excise taxes to include, inter alia, “(3) a
rifle having a barrel or barrels of less than 18 inches in length; [or] (4) a
weapon made from a rifle if such weapon as modified has an overall
length of less than 26 inches or a barrel or barrels of less than 16 inches
in length[.]” This circuit has explained:
The term “firearm,” as set forth in 26 U.S.C. § 5845 (1988),
is very narrowly defined to encompass only weapons such as
machineguns, silencers, sawed-off shotguns and rifles[,] and
bombs. Congress required registration of these types of
weapons because it believed that these weapons, by their very
nature, were extremely dangerous and served virtually no
purpose other than furtherance of illegal activity.”
United States v. McKelvey, 7 F.3d 236 (Table), 1993 WL 339704, at *6
(6th Cir. Sept. 1, 1993) (per curiam) (unpub’d) (emphases added;
citations omitted).
The McKelvey court further remarked that, via the legislative history
of the Gun Control Act of 1968,
Congress noted that the principal purpose of the Act “is to
strengthen Federal controls over interstate and foreign commerce
in firearms and to assist the States effectively to regulate
firearms traffic within their borders” and that the need to
strengthen the controls is based on “the increasing rate of crime
and lawlessness and the growing use of firearms in violent
crime.”
Id. at * 6 (brackets and parenthesis omitted) (quoting H.R. Rep. No. 1577,
90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 4410, 4411-
15)). Additionally, the McKelvey court underscored that Congress, via
section 5845, exempted antique arms and almost any other device which
“by reason of the date of its manufacture, value, design and other
characteristics is primarily a collector’s item and [is] not likely to be used
as a weapon.” Id. at * 6-7 (quoting 26 U.S.C. § 5845(a)).
See also U.S.S.G. § 2K2.1(a) (1), (3), (4)(B), & (5) (creating
comparatively elevated base offense levels for persons convicted of
crimes involving the receipt, possession, transportation, or other
prohibited transaction in firearms described in 26 U.S.C. § 5845(a), thus
reflecting the Sentencing Commission’s judgment that prohibited
transactions in such weapons should be punished more harshly than
Nos. 98-3855/3856 United States v. Dunlap, et al. 7
minimum indicium of reliability beyond mere allegation.” United States
v. Robison, 904 F.2d 365, 371 (6th Cir. 1990) (citations omitted). See
also United States v. Partington, 21 F.3d 714, 717 (6th Cir. 1994);
U.S.S.G. § 6A1.3(a) (Policy Statement). “The appellate courts generally
do not review the district court’s determinations regarding witness
credibility.” United States v. Gessa, 57 F.3d 493, 496 (6th Cir. 1995)
(citation omitted). However, although reviewing courts accord due
deference to a lower court’s application of the Sentencing Guidelines to
the material facts, construction of the Guidelines is ultimately an issue of
law subject to plenary review. 18 U.S.C. § 3742(e); United States v.
Sivils, 960 F.2d 587, 596 (6th Cir. 1992).
9“The Sentencing Commission’s Notes and Commentary to the
guidelines is authoritative and binding upon the courts unless such are
inconsistent with the Constitution, a federal statute, or the guidelines
themselves.” United States v. Landers, 39 F.3d 643, 646 n.7 (6th Cir.
1994) (citing Stinson v. United States, 508 U.S. 36, 38 (1993)).
§ 3742(e); United States v. Hill, 79 F.3d 1477, 1486 (6th Cir.
1996).
The United States Sentencing Commission’s official
Commentary9 to section 2D1.1 posits, in part, that “[t]he
adjustment should be applied if the weapon was present,
unless it is clearly improbable that the weapon was connected
with the offense. For example, the enhancement would not be
applied if the defendant, arrested at his residence, had an
unloaded hunting rifle in his closet.” U.S.S.G. § 2D1.1,
comment. (n.3) (emphases added). Initially, the prosecution
must prove, by a preponderance of evidence, that “(1) the
defendant actually or constructively ‘possessed’ the weapon,
and (2) such possession was during the commission of the
[narcotics] offense.” Hill, 79 F.3d at 1485 (citation omitted).
The burden then shifts to the defendant to prove the clear
improbability of any connection between the drug offense and
the weapon. Id.
The district court found that, in mid-December 1996,
Thomas had possessed his modified .22 caliber rifle during
the commission of a drug trafficking crime. In opposition,
Thomas has contended that the United States failed to prove

-- 7 of 8 --

8 United States v. Dunlap, et al. Nos. 98-3855/3856
10Count two of the indictment had charged Thomas with possession
of cocaine base with intent to distribute on or about December 14, 1996,
the approximate date of the firearm transfer. As stated above, the district
court dismissed that count, and others, pursuant to a Rule 11 plea
agreement, under which Thomas pled guilty to the conspiracy charge
(count one). However, criminal activities linked to the crime of
conviction which are proved at sentencing by a preponderance of
evidence should be punished as “relevant conduct,” even if such
misconduct had been uncharged, or charged in a count of dismissal or
acquittal. U.S.S.G. § 1B1.3(a)(1)(A); United States v. Lloyd, 10 F.3d
1197, 1221 (6th Cir. 1993); United States v. Kappes, 936 F.2d 227, 229
(6th Cir. 1991); United States v. Duncan, 918 F.2d 647, 652 (6th Cir.
1990).
that he possessed that weapon during a narcotics
transgression; and, in any event, he purportedly had proved
the “clear improbability” of any connection between that
weapon and any drug crime which he had committed. He has
emphasized that, when he vended his sawed-off long gun to
the CI, he did not contemporaneously distribute any cocaine
base.
However, as illustrated above, Thomas was a professional
dope peddler who pleaded guilty to conspiratorial possession
and distribution of cocaine base. During the firearm
transaction in controversy, he physically possessed two grams
of crack, which he weighed in the presence of the CI for the
manifest purpose of (1) notifying the CI that those illegal
stimulants were available for purchase, and/or (2) preparing
them for street distribution. Hence, no clear error infected the
sentencing court’s rational inference, supported by a
preponderance of evidence, that Thomas possessed the
truncated rifle while in felonious possession of “distribution”
crack, thus satisfying the prosecution’s burden of proof.10
Moreover, Thomas has failed to discharge his rebuttal
burden. His personal carriage of the altered rifle during his
active commission of a drug trafficking offense raises the
inescapable inference that he possessed the gun in connection
with his concurrent narcotics infraction. See, e.g., United
States v. Gibson, 135 F.3d 1124, 1128 (6th Cir.) (resolving
Nos. 98-3855/3856 United States v. Dunlap, et al. 9
11Section 924(c) postulates, in pertinent part:
Whoever, during and in relation to any . . . drug trafficking
crime . . . for which he may be prosecuted in a court of the
United States, uses or carries a firearm, shall, in addition to the
punishment provided for such . . . drug trafficking crime, be
sentenced to imprisonment for five years[.]
18 U.S.C. § 924(c)(1). (Emphasis added).
12This appellate forum has recognized that Congress has specially
categorized certain highly dangerous weapons, including sawed-off rifles,
because of their manifest primary criminal purpose. United States v.
that an unloaded silencer-equipped .380 automatic pistol
bartered by undercover agents to the defendant in exchange
for cocaine base was possessed by the defendant in
connection with the defendant’s narcotics offense for section
2D1.1(b)(1) purposes), cert. denied, 118 S. Ct. 2310 (1998);
United States v. Castillo, 979 F.2d 8, 9-11 (1st Cir. 1992)
(sustaining a two-point § 2D1.1(b)(1) weapons enhancement
ignited by the defendant’s sale of a .22 caliber revolver, along
with cocaine base, to an incognito ATF agent); see generally
United States v. Duncan, 918 F.2d 647, 650-52 (6th Cir.
1990). Accord, Fair v. United States, 157 F.3d 427, 430-31
(6th Cir. 1998) (ruling, in an analogous context under 18
U.S.C. § 924(c),11 that a person who personally transports a
firearm to a drug deal has carried that weapon “in relation to”
the underlying narcotics transaction, irrespective of any other
purpose he may have allegedly had for carrying that
instrument) (citing, inter alia, Muscarello v. United States,
524 U.S. 125, 131-38 (1998)).
The conclusion that Thomas’ possession of the refashioned
rifle was “connected” to a conspiratorial narcotics violation is
bolstered by the trial court’s explicit finding that “its stock
[had been] sawed from the end to make it handle as if it were
almost a pistol.” The rifle’s alterations rendered it a typical
criminal instrumentality suitable for use as a cash-and-drugs
protection tool and/or a street dealer’s enforcement
implement.12 See U.S.S.G. § 2D1.1, comment. (n.3)

-- 8 of 8 --