Unpublished Disposition, 932 F.2d 973 (9th Cir. 1991)

MEMORANDUM^** 

INTRODUCTION

John Lorentine pleaded guilty to one count of possession of marijuana with intent to distribute, 21 U.S.C. § 841, and to one count of possession of an unregistered firearm, 26 U.S.C. § 5861(d). The presentence report recommended a two-level enhancement for possession of a firearm during a drug trafficking offense, under Sentencing Guideline Sec. 2D1.1(b) (1). The court sentenced Lorentine to ninety months on each count, the sentences to run concurrently. Lorentine appeals the section 2D1.1(b) (1) enhancement and the district court's calculation of his sentence for possession of an unregistered firearm.

DISCUSSION

The Sentencing Guidelines instruct courts to enhance a defendant's base offense level by two if "a dangerous weapon (including a firearm) was possessed during the commission of the [drug] offense." U.S.S.G. Sec. 2D1.1(b) (1). The Guidelines further state that the adjustment "should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." Id. at comment (n. 3).

Lorentine raises three objections to the enhancement of his sentence under this provision. He argues that section 2D1.1(b) (1) should not have been applied because: 1) an unloaded gun is not a "dangerous weapon"; 2) he was unaware of the gun's presence in the truck and consequently could not have "possessed" it; and 3) the rifle's inaccessibility indicates that it was not possessed "during the commission of the offense."

The district court did not err in applying section 2D1.1(b) (1) even though the gun was not loaded. An unloaded firearm constitutes a "dangerous weapon" within the meaning of the Sentencing Guidelines. United States v. Heldberg, 907 F.2d 91, 94 (9th Cir. 1990) (holding that section 2D1.1(b) (1) applies "to an object that appears to be a dangerous weapon" and that "it is evident that an unloaded .25 caliber semi-automatic handgun appears to be a dangerous weapon"); United States v. Smith, 905 F.2d 1296, 1300 (9th Cir. 1990) (" [E]ven an inoperable gun is a 'dangerous weapon' " when used in the commission of a crime.).

Our cases recognize that, during the commission of an offense in which a weapon is present, only the possessor will know if the gun is loaded. See, e.g., Smith, 905 F.2d at 1300. Officers and others involved can be expected to react as though the firearm is fully operational. The threat of a violent reaction by others exacerbates the danger already inherent in drug transactions.

The display of even an inoperable gun ... instills fear in the average citizen and creates the possibility of immediate, violent response.... An inoperable gun can also cause harm when used as a bludgeon.

Smith, 905 F.2d at 1300 (citations omitted).¹ 

The district court thus did not err in predicating enhancement on the presence of an unloaded rifle.

The facts of this case readily support a finding of constructive possession. Constructive possession entails a showing that Lorentine (1) knew of the gun's presence, and (2) exercised dominion and control over it. See United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir. 1988); United States v. Behanna, 814 F.2d 1318, 1319 (9th Cir. 1987). Possession and knowledge may be established by circumstantial evidence. Castillo, 866 F.2d at 1086.

Evidence demonstrating that Lorentine had control over the area where the gun was found supports an inference of knowledge of, and dominion and control over, the gun itself. Behanna, 814 F.2d at 1319-20; see Williams v. United States, 418 F.2d 159, 163 (9th Cir. 1969), aff'd, 401 U.S. 646 (1971). As the driver of the truck in which the gun was located, Lorentine had sufficient control over the interior to permit an inference of knowledge and possession of the truck's contents. See Heldberg, 907 F.2d at 94 (driver of car found to possess weapon in trunk of car); Arellanes v. United States, 302 F.2d 603, 607 (9th Cir.), cert. denied, 371 U.S. 930 (1962) (driver of automobile found to possess drugs discovered in vehicle). Lorentine's own statement that he drove the truck to ensure the safety of the marijuana being hauled in a companion truck further evinces his control over the operation and role of the truck in the drug transaction.

That a passenger was present who might also have been capable of using the weapon does not foreclose an inference of possession by the driver, because no evidence linked Mr. Padilla to the gun or demonstrated his control over the direction and operation of the truck. See Arellanes, 302 F.2d at 606-07; Williams, 418 F.2d at 163 (that another person resided in the house and used the bedroom where heroin was found did not negate inference of defendant's possession based on his substantial control and usage of the area).

While the facts of this case thus support the district court's finding of possession, Lorentine raises a separate legal issue regarding the knowledge requirement. Relying on cases from the District of Columbia and Fifth Circuits, he argues that the Sentencing Guidelines in effect at the time he was sentenced required the district court to enter a specific finding of scienter before assessing the two-level enhancement. See United States v. Suarez, 911 F.2d 1016, 1020 (5th Cir. 1990); United States v. Burke, 888 F.2d 862, 867-68 (D.C. Cir. 1989). We assume, without deciding, that knowledge must be shown and hold that the evidence of dominion and control supported such an inference here.

We also affirm the district court's decision to apply the enhancement even though the weapon was found behind the seat of the pick-up truck Lorentine was driving and thus was not within Lorentine's immediate grasp during the drug transaction. As long as the weapon was in close proximity, the public safety concerns animating section 2D1.1(b) (1) warrant the two-level increase.

In Heldberg, we affirmed a two-level increase for an unloaded gun locked in a briefcase in the trunk of a car. 907 F.2d at 92-94. Although not on Mr. Heldberg's immediate person, we noted that the weapon was only "a few feet away and readily accessible ... during the importation of controlled substances in the event he desired to use it to commit an act of violence." Id. See also United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir. 1990) (increase appropriate where gun was under the car floor mat and drug transaction took place outside of the vehicle); United States v. Gillock, 886 F.2d 220, 222-23 (9th Cir. 1989) (increase appropriate where gun found in bedroom closet of residence where drug offense occurred); United States v. Restrepo, 884 F.2d 1294, 1296 (9th Cir. 1989) (gun found between mattress and boxspring of bed in room used for drug distribution warrants enhancement).

The facts of this case are even more compelling. Not only was the weapon "in the same vehicle, at the same time that [the defendant] was engaged in the importation of controlled substances," Heldberg, 907 F.2d at 94, but this gun was also in the same compartment of the vehicle as Lorentine.

Lorentine subsequently confessed that his purpose in driving the pick-up truck on the day he was stopped was to safeguard the marijuana-laden truck. Given this statement and the relative accessibility of the rifle, the district court's conclusion that the weapon was possessed "during the commission of the offense" flows quite easily. The district court, moreover, was entitled to infer that "trafficking in narcotics is very often related to the carrying and use of firearms." United States v. Willis, 899 F.2d 873, 875 (9th Cir. 1990) (quoting United States v. Ramos, 861 F.2d 228, 231 n. 3 (9th Cir. 1988)). Consequently, the district court's finding that the weapon was possessed "during the commission of the offense" was not clearly erroneous.

Lorentine also challenges the district court's calculation of his sentence for possession of an unregistered firearm. He argues that the maximum applicable sentence range for that particular offense (under criminal history category I) is between twenty-one and twenty-seven months. The district court's assessment of a ninety-month sentence, he argues, was a drastic and unwarranted upward departure.

Lorentine misapprehends how the Guidelines apply to his case. Lorentine was convicted of two offenses, placing him squarely within the Guidelines' provisions covering the calculation of sentences for multiple offenses. See U.S.S.G. Secs. 3D1.4, 5G1.2.

The ninety-month sentence imposed by the district court conforms to these provisions. Section 5G1.2(c) states:

If the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment, then the sentences on all counts shall run concurrently, except to the extent otherwise required by law.

The commentary to section 5G1.2 states more specifically how district courts should calculate multiple offense sentences:

Usually, at least one of the counts will have a statutory maximum adequate to permit imposition of the total punishment as the sentence on that count. The sentence on each of the other counts will then be set at the lesser of the total punishment and the applicable statutory maximum, and be made to run concurrently with all or part of the largest sentence.

In Lorentine's case, the combined offense level was 28, and criminal history category I applied. This resulted in an available sentence range of 78 to 97 months. The most serious count, possession with intent to distribute marijuana, carries a statutory maximum of forty years. The total punishment chosen by the district court, ninety months, falls well within this statutory maximum. Consequently, the Guidelines obliged the district court to set the sentence for the second count (unregistered firearm) at "the lesser of the total punishment [ninety months] and the applicable statutory maximum [ten years for unregistered firearms]" and have it run concurrently with the drug count. The district court adhered precisely to this requirement. We therefore affirm the sentence on the unregistered firearm count.

CONCLUSION

The district court did not err in imposing a two-level enhancement for possession of a firearm during a drug transaction. Nor did it err in calculating the appropriate sentence for the unregistered firearm count. The decision of the district court is therefore

AFFIRMED.