Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1063 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Jack David MOOERS, Defendant-Appellant.

No. 90-50102.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990* Decided Jan. 31, 1991.

Before PREGERSON, FERGUSON and TROTT, Circuit Judges.


MEMORANDUM** 

Jack David Mooers appeals his sentence imposed under the United States Sentencing Guidelines (U.S.S.G.). Mooers argues the district court erred when it (1) enhanced his sentence by two points pursuant to section 2D1.1(b) (1) based on his possession of firearms during the commission of his offense, and (2) enhanced his sentence under that provision while refusing to enhance his codefendant's sentence as well. We affirm.

* Facts and Proceedings Below

On August 31, 1989, the San Diego Narcotics Task Force conducted a search of Mooers's fifty acre farm. The officers discovered a field of 600 marijuana plants and 400 pounds of dried marijuana stored in a shed located approximately 100 yards from Mooers's house. Inside Mooers's house the officers found eleven firearms, including an automatic shotgun and an automatic machine gun. Several of the weapons, including the machine gun, were fully loaded. Mooers and a codefendant were arrested, and Mooers pleaded guilty to possession of a controlled substance with intent to distribute. 21 U.S.C. § 841(a) (1) (1988).

The United States Probation Department recommended a two point enhancement under section 2D1.1(b) (1) of the Guidelines because Mooers had possessed the eleven weapons during the commission of his offense. U.S.S.G. Sec. 2D1.1(b) (1). The district court agreed, finding: "I think any time you plant marijuana, you have to be prepared to defend it against all comers; and I think that's exactly what was happening here ..." The court therefore enhanced Mooers's sentence by two points. Mooers's codefendant did not receive a similar enhancement.

Mooers timely appeals.

II

Analysis

Section 2D1.1(b) (1) provides: "If a dangerous weapon (including a firearm) was possessed during commission of the offense, increase by 2 levels." U.S.S.G. Sec. 2D1.1(b) (1). The only application note to this section states, in relevant part:

The 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 in his residence, had an unloaded hunting rifle in the closet.

U.S.S.G. Sec. 2D1.1(b) (1), Application Note 3 (emphasis added).

Relying on Application Note 3, the district court determined it was probable Mooers possessed the eleven firearms in connection with his offense. We review this finding for clear error. United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir. 1990); United States v. Heldberg, 907 F.2d 91, 93 (9th Cir. 1990). Under the circumstances, we cannot say it was "clearly improbable" that Mooers possessed the firearms in connection with his offense.

Mooers argues section 2D1.1(b) (1) applies only where a connection is shown between the offense and the weapons. That is not the case. As we explained in United States v. Restrepo, 884 F.2d 1294, 1296 (9th Cir. 1989), "the language of the Guidelines does not require that a connection be shown. Rather, it requires only that the weapon be possessed during the commission of the offense." (emphasis in original); accord, Heldberg, 907 F.2d at 93. Application Note 3 is merely an exception to the rule announced in section 2D1.1(b) (1); in other words, a defendant who has possessed weapons during the commission of his offense will receive a two point enhancement unless it is "clearly improbable" the weapons were connected with the offense. Restrepo, 884 F.2d at 1296. The district court in the present case did find such a connection.

Mooers cites several cases from this circuit in which section 2D1.1(b) (1) was held applicable where the weapons found were in close proximity to the controlled substances seized. See for example, United States v. Gillock, 886 F.2d 220, 222-23 (9th Cir. 1989) (pistol found in the same closet with methamphetamine). We recently noted, however, that " [o]ur court has not required the guns and drugs to be found in proximity to each other, in order to support a firearm enhancement." United States v. Willard, No. 89-30206, slip. op. 14579 at 14586 (9th Cir. Nov. 27, 1990) (emphasis in original). The question whether it is "clearly improbable" the weapons were connected to the offense may depend on a variety of circumstances, including "the number and kind of weapons involved, and the length of time and extent of appellant's involvement in selling drugs...." Id. at 14585. The proximity of the guns to the drugs will not always be determinative. Thus, in Willard, we held section 2D1.1(b) (1) applied though the guns and drugs were separated by several miles. Id.

Mooers's emphasis on the fact that the marijuana seized was over 100 yards from the weapons stored in his house thus avails him little. In the first place, the distance itself is not great; the firearms were readily accessible in the event of a raid. More importantly, the quantity and type of the weapons recovered, and the fact that some were loaded, is inconsistent with an innocuous use.1  Finally, the amount of drugs seized indicated Mooers and his companion were not "nickel and dime" dealers; their operation was substantial and it is likely they used their arsenal to protect it against attack. Based on these circumstances, it is not "clearly improbable" that Mooers's weapons were connected with his offense.

Mooers challenges the district court's decision to apply the two point firearm enhancement to him but not to his codefendant, claiming the Guidelines forbid such disparity in sentencing.

We review the district court's sentencing determinations for abuse of discretion. United States v. Castro, 887 F.2d 988, 1001 (9th Cir. 1989). Ordinarily, the imposition of a disparate sentence alone is not an abuse of discretion and the district court need not state a reason for the disparity. Id; see also, United States v. Pierce, 893 F.2d 669, 678 (5th Cir. 1990).

Mooers contends this is not an ordinary case, relying on the Sixth Circuit's decision in United States v. Williams, 894 F.2d 208 (6th Cir. 1990). Williams is distinguishable. In Williams, the appellants received a firearm enhancement because their coconspirator allegedly had possessed a gun during the commission of the offense. This coconspirator did not himself receive an enhancement. On appeal, the court held the disparity in the sentences indicated an abuse of discretion, basing its decision on two factors. Id. at 212-213. First, it noted appellants had not even been present at the scene of the crime, where their coconspirator supposedly had carried a firearm. Second, it emphasized that this coconspirator had been acquitted of the underlying weapons violation, casting doubt on whether even he had possessed a weapon during his commission of the crime. Under these circumstances, the court reasoned, it was "particularly inequitable" to enhance appellants' sentence after declining to enhance their coconspirator's sentence.

We do not comment on whether Williams was correctly decided. It is enough to say that the facts of Williams find no parallel in this case. Mooers owned the house where the weapons were found and the property from which the marijuana was seized. There is no doubt that section 2D1.1(b) (1) applied to Mooers even though the district court decided for some reason not to enhance the sentence of Mooers's codefendant, who assisted him in the operation. We find no abuse of discretion here.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Thus, for instance, we are not presented with a case akin to an "unloaded hunting rifle in the closet," the example listed in Application Note 3 as a situation where section 2D1.1(b) (1) would not apply. U.S.S.G. Sec. 2D1.1(b) (1), Application Note 3