Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1063 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Everett Junior LINDER, Defendant-Appellant.

No. 90-10023.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 12, 1990.Decided Jan. 28, 1991.

Before GOODWIN, Chief Judge, and ALDISERT*  and KOZINSKI, Circuit Judges.


MEMORANDUM** 

A. Defendant argues that the district court was required to find scienter before it could make an upward adjustment on account of possession of a firearm under Sentencing Guidelines section 2D1.1(b) (1). Section 2D1.1(b) (1) states: "If a dangerous weapon (including a firearm) was possessed during commission of the offense, increase by 2 levels." According to the Commentary, " [t]he enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it was clearly improbable that the weapon was connected with the offense." Sentencing Guidelines Sec. 2D1.1, application n. 3 (emphasis added).1 

Because neither the guideline nor the commentary requires that the defendant be the one who possesses the weapon, the possession or presence of a weapon cannot qualify as "conduct" for the purpose of invoking section 1B1.3, which governs relevant conduct. Thus, unlike the D.C. Circuit in United States v. Burke, 888 F.2d 862 (D.C. Cir. 1989), we see no reason to cull a scienter requirement from the vague language of the relevant conduct section. Moreover, after Burke was decided, the Sentencing Commission amended the relevant conduct section to eliminate any possibility of a scienter requirement, see Sentencing Guidelines Sec. 1B1.3 application n. 1 (Nov. 1989), and indicated that the purpose of the amendment was "to clarify." Guidelines Manual app. C, at C. 43. "Because this amendment was intended only to clarify section 1B1.3's application and, therefore, implicitly was not intended to make any substantive changes to it or its commentary, we may consider the amended language of Application Note 1 to section 1B1.3 even though it was not effective at the time of the commission of the offense in question." United States v. Aguilera-Zapata, 901 F.2d 1209, 1213-14 (5th Cir. 1990). The district court did not err in holding that the mere presence of a weapon justifies the 2-level increase.

B. Linder argues that the district court erred in accepting codefendants' account of Linder's role in the offense. We are "not at liberty to disturb the credibility determinations made by the ... district court." United States v. Kerr, 876 F.2d 1440, 1444 (9th Cir. 1989). The district court did not err in imposing the three-level increase for a managerial role.

C. Linder claimed that he visited the laboratory site for the first time on the date of his arrest, and that his role was only that of an advisor. Appellant's Brief at 15 (quoting Presentence Report at 8). Denial of an acceptance of responsibility adjustment is appropriate where the defendant " 'tends to minimize his part in the offense.' " See United States v. Corley, 909 F.2d 359, 362 (1990) (quoting presentence report). Given the district court's finding that Linder played a more substantial role than he claimed, it did not err in denying the downward adjustment for acceptance of responsibility.

AFFIRMED.

 *

The Honorable Ruggero J. Aldisert, Senior Judge for the United States Court of Appeals for the Third Circuit, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

These provisions are substantially the same as their 1988 counterparts