United States of America, Plaintiff-appellee, v. Michael J. Marshall, Defendant-appellant, 139 F.3d 909 (9th Cir. 1998)

MEMORANDUM^* 

Convicted drug dealer Michael Marshall collaterally attacks his sentence enhancement for firearms possession under U.S.S.G. § 2D1.1(b). He also contends that his counsel was ineffective for failing to object to the enhancement.

Marshall concedes that "the firearm was in a closed container behind the seat of the truck" which he drove and "the loaded clip and ammunition were in two other parts of the cab of the pick-up." As the driver, Marshall exercised dominion and control over the vehicle, implying knowledge and possession of its contents. United States v. Heldberg, 907 F.2d 91, 94 (9th Cir. 1990) (driver of car is in possession of weapon in trunk). Marshall counters, however, that although he drove the truck to his initial meeting with federal agents, he did not drive it to the immediately subsequent encounter at which he actually sold drugs. He thus induces that he did not possess the gun during the offense. His argument founders on the rule that a § 2D1.1(b) (1) weapons enhancement does not require possession of weapon during the actual offense, but rather only during a course of conduct that includes the charged crime. United States v. Williams, 919 F.2d 606, 609-10 (9th Cir. 1990).

Our finding of no error quells Marshall's claim that his attorney was ineffective for failing to object to such. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (defendant must suffer prejudice).¹ 

AFFIRMED