16United States v. Dunlap, et al.Nos. 98-3855/3856persuasive, either individually or collectively. Accordingly,the judgments of sentence areAFFIRMED.*The Honorable James S. Gwin, United States District Judge for theNorthern District of Ohio, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0116P (6th Cir.)File Name: 00a0116p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________UNITEDSTATES OFAMERICA,Plaintiff-Appellee,v.JAMESDUNLAP(98-3855)and JAKHANTHOMAS(98-3856),Defendants-Appellants.;>1Nos. 98-3855/3856Appeal from the United States District Courtfor the Southern District of Ohio at Columbus.No. 97-00128—Edmund A. Sargus, Jr., District Judge.Argued: September 22, 1999Decided and Filed: March 31, 2000Before: KRUPANSKY and NORRIS, Circuit Judges;GWIN,*District Judge.2United States v. Dunlap, et al.Nos. 98-3855/3856_________________COUNSELARGUED:Terry K. Sherman, Columbus, Ohio, FrederickD. 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 defendantsappellants James E. Dunlap, also known as “Fatty”(“Dunlap”), and Jakhan Thomas, also known as “Ja-Con”(“Thomas”), have each contested his respective sentenceimposed following his conviction entered upon his guilty pleato conspiring to possess and distribute cocaine base (or“crack”). Both defendants have assailed their sentencingenhancements for possession of a dangerous weapon inconnection with that offense. Dunlap has additionallychallenged the district court’s quantification of cocaine baseattributable to him, whereas Thomas has disputed thesentencing bench’s rejection of his application for adownward sentencing departure.Beginning on approximately December 1, 1996, andcontinuing until July 30, 1997, agents of the Columbus PoliceDepartment (“CPD”) and the Federal Bureau of Alcohol,Tobacco, and Firearms (“ATF”) jointly investigated a majornarcotics consortium which encompassed Dunlap andThomas, together with at least three additional confederates.On December 14 or 15, 1996, surveillance operativesvideotaped Thomas’ sale of a Glenfield .22 caliber (model no.Nos. 98-3855/3856United States v. Dunlap, et al.15powerless to revisit, modify, amend, abrogate, supersede, setaside, vacate, avoid, nullify, rescind, overrule, or reverse anyprior Sixth Circuit panel’s published precedential ruling oflaw.Washington, 127 F.3d at 516-17 & n.9;Smith, 73 F.3dat 1418.In a bid to surmount that obstacle to appellate relief,Thomas has argued that, because the 100 to 1 sentencing ratiois purportedly unfair irrespective of its previously adjudicatedconstitutionality, the district court abused its discretion byfailing to award him a downward sentencing departure under18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0 (Policy Statement)by reason thereof. However, although a sentencing court’sdecision to depart from the Guidelines is reviewable for abuseof discretion,Koon v. United States,518 U.S. 81, 96-100(1996), its decisionnotto depart is insulated from appellatescrutiny, unless the sentencing judge legally erred by failingto 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 (6thCir. 1994).In the casesub judice, the initial forum possessedno lawfulauthorityto depart downwardly from Thomas’ Guidelinesmandated sentencing range by reason of the 100 to 1sentencing disparity at issue; thus no error of law infected itsfailure to do so.SeeUnited States v. Watkins, 179 F.3d 489,504 (6th Cir. 1999) (remarking that “[t]his Court has heldrepeatedly that objections to the Sentencing Guidelines’disparate punishments for crimes involving crack cocaine andcocaine powder are meritless andthe disparity is insufficientgrounds for downward departure from guideline sentences.”)(emphasis added) (quoting United States v. Welch, 97 F.3d142, 154 (6th Cir. 1996) (citations omitted));United States v.Gaines, 122 F.3d 324, 328-31 (6th Cir. 1997) (reversing atrial court’s downward sentencing departure anchored in the100 to 1 crack-to-power cocaine differential).This review has carefully considered each argumentadvanced by the defendants-appellants but finds none14United States v. Dunlap, et al.Nos. 98-3855/385613Standing alone, 44 grams of cocaine base would incite an offenselevel of 30. U.S.S.G. § 2D1.1(c)(5). (The maximum possible overallGuidelines offense level is 38, whereas the lowest is six). The seizure ofa major volume of cocaine base at a fortified high-traffic “crack house”necessarily raises the reasonable inference that those illegal stimulantswere possessed for distribution purposes.See United States v. Harris,192 F.3d 580, 589 (6th Cir. 1999) (ruling that the government had provedat trial beyond a reasonable doubt, via circumstantial evidence, that thedefendant had possessed a mere 5.9 grams of crack for distribution ratherthan personal consumption, because the defendant carried that cocainebase, packaged in twenty small individually wrapped units for convenientstreet dispensation, while armed, in an urban district reputed for narcoticsactivity). The sentencing court’s discrediting of Tyson’s assertion that hepossessed those drugs for personal consumption is not subject to appellatere-evaluation.United States v. Gessa, 57 F.3d 493, 496 (6th Cir. 1995).rather than “personal use,” crack;13and further, that saidcrack was either the property of Dunlap, jointly possessed byDunlap and Tyson, and/or foreseeably possessed by Tysonwithin the orbit of his cooperative criminal relationship withDunlap. Accordingly, the trial court’s imputation, againstDunlap, of the 44 grams of crack uncovered at 3114Allegheny Avenue was untainted by reversible error.Additionally, Thomas has contested the constitutionality ofthe Congressionally-mandated 100 to 1 statutory sentencingdisparity between crack cocaine and powder cocaine, wherebya given quantity of cocaine base triggers a penalty equivalentto that of one hundred times that weight of cocaine powder.See21 U.S.C. § 841(b)(1) (A) & (B); U.S.S.G. § 2D1.1(c)(Drug Quantity Table). However, in his brief, Thomasconceded that “this issue has been previously decided” by theSixth Circuit.See, e.g., United States v. Smith, 73 F.3d 1414,1417-18 (6th Cir. 1996) (overruling a constitutional attackagainst the subject statutory sentencing disparity by applyingpertinent 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 fromaccommodating Thomas’ invitation to reconsider thepreviously adjudicated constitutional issue which he hasframed, because a subsequent panel of this circuit court isNos. 98-3855/3856United States v. Dunlap, et al.31The 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 illegaltransactions at that location, including those described herein, via aclandestine video and audio taping system.60) sawed-off rifle1to an unidentified confidential informant(“CI”) for $50 at the CI’s residence (986 Seymour Avenue,Columbus, Ohio).2During that exchange, Thomas weighedtwo grams of cocaine base on the CI’s digital scale, althoughthe CI did not then purchase any of that crack.Thereafter, the CI and covert investigators regularlypurchased crack cocaine directly from Thomas. On March23, 1997, in response to the CI’s pager signal and a follow-uptelephone conference, Thomas personally delivered 6.2 gramsof crack to the CI’s residence, which he (Thomas) sold to anundercover agent. On June 19, 1997, also at the CI’sdomicile, a clandestine investigator posing as a customersolicited twelve grams of crack from Thomas. Using the CI’sresidential telephone, Thomas contacted one of hisaccomplices, Frank Woods, to obtain the telephone numberof Bryan Williams, a supplier of narcotics to the syndicate.Following Thomas’ telephone call to Williams, Thomasinstructed the CI to drive him to 1418 Clifton Avenue,Columbus, Ohio, where Thomas purchased crack from anunidentified male. The CI then returned Thomas to his (theCI’s) residence, where Thomas, using the CI’s digital scale,determined the weight of his recently-acquired contraband ateleven grams. Because that quantity fell short of satisfyingthe undercover detective’s order, Thomas added several rocksof crack which he took from a plastic bag inside his sock.Crime laboratory technicians later determined that theaggregate amount of cocaine base vended by Thomas on thatoccasion weighed 11.8 grams.Approximately one month later, on July 15, 1997, again atthe CI’s residence, a law enforcement officer masqueradingas a crack addict offered to purchase one ounce of the4United States v. Dunlap, et al.Nos. 98-3855/38563Tyson and Dunlap had each executed, as co-tenants, a rentalagreement 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 of3114 Allegheny Avenue. The marijuana is not material to the instantappeal.controlled substance from Thomas. In response, Thomasdialed a beeper number, which subsequently prompted areturn call from defendant Dunlap via a telephone registeredto co-conspirator Dashawn Tyson at 3114 Allegheny Avenue,Apartment C, Columbus.3Following his conversation withDunlap, Thomas instructed the CI to drive him and theirprospective client (the covert detective) to “Chuck’s CarryOut,” 3140 Allegheny Avenue, Columbus, which was locateda short distance from Tyson’s domicile. Thomas theninitiated a call from a nearby public telephone booth; minuteslater, Dunlap arrived at the scene. Thomas immediatelyexited the CI’s automobile, entered Dunlap’s vehicle, andmomentarily returned to the CI’s vehicle toting 24.8 grams ofcrack cocaine, which he negotiated to the incognitoinvestigator for $1,080. Unbeknownst to Thomas andDunlap, officers had previously registered the serial numbersof those Treasury bills.Two days later, July 17, 1997, Columbus peace officersexecuted a search warrant at Tyson’s residence, 3114Allegheny Avenue, Apartment C. Inside that dwelling, theCPD raiders discovered Tyson and Williams, accompanied bytwo other individuals. Detectives surfaced United Statescurrency totaling $2,700, including $800 of the recorded banknotes which the undercover buyer had used to purchase crackfrom 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 incash was also discovered in the closet. An additional 18grams of cocaine base was found in the kitchen near a loadednine millimeter Highpoint handgun. The officers also located0.9 grams of cocaine base on the living room floor.4ANos. 98-3855/3856United States v. Dunlap, et al.13v. Owusu, 199 F.3d 329, 347-48 (6th Cir. 2000);UnitedStates v. Hill, 79 F.2d 1477, 1485-86 (6th Cir. 1996);UnitedStates v. Cochran, 14 F.3d 1128, 1132 (6th Cir. 1994).Next, Dunlap has faulted the district judge’s attribution tohim of the 44 grams of crack seized during the AlleghenyAvenue raid. As stated previously, a convicted offendershould be charged, at sentencing, with all unlawful actscommitted within the scope of his offense of conviction(“relevant conduct”), including uncharged narcoticsforeseeably possessed by his compatriot in furtherance oftheir coordinated distribution enterprise. U.S.S.G.§ 1B1.3(a)(1)(A) & (B);United States v. Davern, 970 F.2d1490, 1493-94 (6th Cir. 1992) (en banc);seeU.S.S.G.§ 1B1.3, comment. (n.2) (positing that a conspirator isaccountable for narcotics possessed by his cohort if thatpossession was both in furtherance of, and reasonablyforeseeable in connection with, jointly undertaken criminalactivity);United States v. Ledezma, 26 F.3d 636, 646 (6th Cir.1994). “The government bears the burden of proving thequantity of drugs chargeable to a defendant for sentencingpurposes by a preponderance of the evidence. Like otherfactual findings, the sentencing court’s drug quantitydetermination is reviewable only for clear error.”Gessa, 57F.3d at 496 (citations omitted).Dunlap has claimed that he did not own the 44 grams ofcocaine base discovered at Allegheny Avenue. In support, hereiterated his allegation that he lacked unlimited access to theapartment whereas numerous unrelated individuals frequentedthat locale for narcotics transfers and/or consumption; and hehas touted Tyson’s proclamation that he owned all of theimplicated cocaine base for his personal use rather thanconspiratorial distribution. However, the proof, recountedabove, that Dunlap engaged in concerted cocaine traffickingwith Tyson at and from the Allegheny Avenue addresssufficiently evidenced, by a preponderance, that thesignificant quantity of crack in question was “distribution,”12United States v. Dunlap, et al.Nos. 98-3855/3856cannot be gainsaid, the trial court’s two-point weaponsenhancement of Thomas’ offense level was not clearlyerroneous.The district court similarly added the two-point weaponsenhancement to Dunlap’s offense level tabulation, findingthat he actually or constructively possessed one, or both, ofthe two loaded handguns confiscated at the crack den by CPDoperatives on July 17, 1997. Dunlap has contended that hedid not own either of those pistols, that he lacked ready accessto that address (3114 Allegheny Avenue, Apartment C)because Tyson solely resided there, and that he lacked actualknowledge of the existence of the subject pistols. However,Dunlap had co-signed the lease for that apartment, where hefrequently conducted narcotics trade. During the CPD raid,agents surfaced certain of Dunlap’s possessions, including aretail receipt memorializing Dunlap’s purchase of atelephonic pager, photographs of Dunlap, and mail addressedto Dunlap at that location. Additionally, on July 15, 1997,Dunlap had personally responded to Thomas’ telephone pageby placing a return call from the Allegheny Avenue residence,which culminated in Dunlap’s sale, through Thomas, of 24.8grams of crack to an incognito detective. Additionally,surveillance intelligence revealed that Dunlap had beenpresent at the Allegheny Avenue apartment on July 16, 1997,the day preceding the warrant execution which wouldultimately yield the two firearms.Consequently, no clear error invalidated the district court’sfinding that Dunlap jointly occupied and/or controlled theAllegheny Avenue apartment as a co-tenant with hisconfederate Tyson. Dunlap exercised access, control, and/ordominion over those premises, which served as a “safe house”for the crack cartel’s distribution activities. Furthermore, thepresence therein of weapons owned by hisroommate/accomplice Tyson which were connected to theconspiracy’s narcotics business was reasonably foreseeable.Hence, the sentencing court properly imputedconstructivepossession of those firearms to Dunlap, even if he lackedactual knowledge. U.S.S.G. § 1B1.3(a)(1)(B);United StatesNos. 98-3855/3856United States v. Dunlap, et al.55Counts two, three, five, six, and seven averred that Thomasunlawfully possessed with intent to distribute, or distributed, cocainebase, on December 14, 1996, March 23, 1997, June 19, 1997, and July 15,1997 (two counts), respectively. Counts six and eight alleged that Dunlappossessed cocaine base with intent to distribute on July 15, 1997 and July17,1997, respectively. Count four implicated only Frank Woods, andcount nine concerned only Bryan Williams.loaded Browning .380 pistol, together with an ammunitionmagazine, was secreted within a living room couch, and a guncase containing two additional ammunition magazines washidden behind that couch. The investigators also uncoveredtwo electronic pagers plus a purchase receipt for a beeper soldto James Dunlap, along with correspondence and photographsbelonging to Dunlap. A digital scale was found on thekitchen counter.On October 14, 1997, a federal grand jury returned a ninecount indictment against Dunlap, Thomas, Woods, Williams,and Tyson. Count one alleged that, commencing aroundDecember 1, 1996 and continuing until October 14, 1997, thefive defendants had conspired to possess with intent todistribute, and/or distribute, more than five grams of cocainebase, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(iii),and § 846. Count one further specified that the defendantsconducted crack trafficking from,inter alia, 986 SeymourAvenue and 3114 Allegheny Avenue, Apartment C; and thatDunlap, Thomas, and Tyson used firearms in furtherance ofthe charged conspiracy. Additional counts alleged specificinstances of crack distribution by Dunlap, Thomas, and/orother indicted participants in the ring.5Ultimately, Dunlap and Thomas each pleaded guilty, underFed. R. Crim. P. 11, to the first count, in exchange fordismissal of all other charges. The district court sentencedboth defendants on July 16, 1998. During his sentencingproceeding, Thomas opposed the United States’ requestedtwo-level augmentation to his offense level for possession ofa firearm, and also moved for a downward departure from hissentencing range mandated by the United States Sentencing6United States v. Dunlap, et al.Nos. 98-3855/38566The initial court computed Thomas’ sentence by matching hisoffense level (31) with his criminal history category (I), which producedan imprisonment range of 108 to135 months. U.S.S.G. Chap. 5, Pt. A(Sentencing Table). Accordingly, Thomas incurred the least punitivedetention term permissible under the Sentencing Guidelines.7Like Thomas, Dunlap had merited an offense level of 31 and acriminal history categorization of I; thus, his 108 month penalty was themost lenient allowed by the Guidelines.Seenote 6 above.8A finding of fact is clearly erroneous when “the reviewing court onthe entire evidence is left with the definite and firm conviction that amistake has been committed.”Anderson v. City of Bessemer City, 470U.S. 564, 573 (1985) (citation omitted). A reviewing bench shouldsustain a sentencing court’s factual finding if it was supported by “someGuidelines (effective November 1, 1997) (“U.S.S.G.”). Thesentencing bench rejected both of Thomas’ applications, andconsequently condemned him to 108 months of correctionalconfinement,6to be followed by four years of supervisedrelease, and exacted the $100 felony special assessmentmandated by 18 U.S.C. § 3013(a)(2)(A). Likewise, atDunlap’s sentencing hearing, the trial judge, after overrulinghis objections to the government’s proposed two-pointfirearms enhancement to his offense level, as well asattribution against him of the 44 grams of crack seized duringthe July 17, 1997 search of 3114 Allegheny Avenue,committed Dunlap to the United States Bureau of Prisons for108 months,7to be followed by four years of supervisedrelease, and fined him $1,000 plus the $100 mandatoryassessment.On review, Thomas and Dunlap have each challenged thedistrict court’s two-degree increase of his base offense levelfor 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 aconvicted defendant possessed a dangerous weapon duringthe commission of a drug distribution offense constitutes afactual finding reviewed for clear error under thepreponderance of the evidence standard.818 U.S.C.Nos. 98-3855/3856United States v. Dunlap, et al.11similar offenses implicating most firearms of types not listed in section5845(a)).(expounding that “[t]he enhancement for weapon possessionreflects the increased danger of violence when drug traffickerspossess weapons.”);Gibson, 135 F.3d at 1128 (“It seemsapparent that the policy underlying the possession of a firearmenhancement is to punish those defendants engaging in drugtransactions who present, by the possession of the firearm, anincrease in the likelihood of violence at the time of thetransaction.”);Duncan, 918 F.2d at 651 (“the presence offirearms increases the level of danger and justifies a stiffersentence.”);Castillo, 979 F.2d at 10-11 (explaining that thedefendant’s mere possession of a weapon during narcoticscommerce, including a firearm which the defendant intendedto sell to his drug customer, triggered the section 2D1.1(b)(1)enhancement because the possibility existed that thedefendant “would have used the gun during the drugtransaction had he thought it necessary.”) Beyond dispute,Thomas could have aggressively deployed his rifle, while inpossession of “distribution” crack, at any moment prior to histransfer of that weapon to the CI.Thus, even if Thomas had carried the modified rifle to theCI’s residence with an intent to sell that weapon, the factremains that healsocarried 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 notsatisfied his burden of proving the “clear improbability” ofany link between the gun and the drugs. He has proffered noevidence of “special circumstances” which might disqualifythe subject armament from the classification of “criminalinstrumentality” weapons, such as inoperability, status as avaluable collector’s piece, or being a sporting long arm illsuited for criminal purposes. To the contrary, the weapon atissue was fully serviceable, was not an antique, and had beenmodified to facilitate its rapid deployment in a nonrecreational confrontational context. Because the patentconnection between the gun and Thomas’ criminal career10United States v. Dunlap, et al.Nos. 98-3855/3856Greer, 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 specialregistration requirements and excise taxes to include,inter alia, “(3) arifle having a barrel or barrels of less than 18 inches in length; [or] (4) aweapon made from a rifle if such weapon as modified has an overalllength of less than 26 inches or a barrel or barrels of less than 16 inchesin 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 asmachineguns, silencers,sawed-offshotguns andrifles[,] andbombs. Congress required registration of these types ofweapons because it believed that these weapons,by their verynature, were extremely dangerous andserved virtually nopurpose 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).TheMcKelveycourt further remarked that, via the legislative historyof the Gun Control Act of 1968,Congress noted that the principal purpose of the Act “is tostrengthen Federal controls over interstate and foreign commercein firearms and to assist the States effectively to regulatefirearms traffic within their borders” and that the need tostrengthen the controls is based on “the increasing rate of crimeand lawlessness and the growing use of firearms in violentcrime.”Id. at * 6 (brackets and parenthesis omitted) (quotingH.R. Rep. No. 1577,90th Cong., 2d Sess. (1968),reprinted in1968 U.S.C.C.A.N. 4410, 4411-15)). Additionally, theMcKelveycourt underscored that Congress, viasection 5845, exempted antique arms and almost any other device which“by reason of the date of its manufacture, value, design and othercharacteristics is primarily a collector’s item and [is] not likely to be usedas a weapon.”Id.at * 6-7 (quoting26 U.S.C. § 5845(a)).See alsoU.S.S.G. § 2K2.1(a) (1), (3), (4)(B), & (5) (creatingcomparatively elevated base offense levels for persons convicted ofcrimes involving the receipt, possession, transportation, or otherprohibited transaction in firearms described in 26 U.S.C. § 5845(a), thusreflecting the Sentencing Commission’s judgment that prohibitedtransactions in such weapons should be punished more harshly thanNos. 98-3855/3856United States v. Dunlap, et al.7minimum indicium of reliability beyond mere allegation.”United Statesv. Robison, 904 F.2d 365, 371 (6th Cir. 1990) (citations omitted).SeealsoUnited States v. Partington, 21 F.3d 714, 717 (6th Cir. 1994);U.S.S.G. § 6A1.3(a) (Policy Statement). “The appellate courts generallydo not review the district court’s determinations regarding witnesscredibility.”United States v. Gessa, 57 F.3d 493, 496 (6th Cir.1995)(citation omitted). However, although reviewing courts accord duedeference to a lower court’s application of the Sentencing Guidelines tothe material facts, construction of the Guidelines is ultimately an issue oflaw 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 theguidelines is authoritative and binding upon the courts unless such areinconsistent with the Constitution, a federal statute, or the guidelinesthemselves.”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 officialCommentary9to section 2D1.1 posits, in part, that “[t]headjustment should be appliedif the weapon was present,unlessit isclearly improbablethat the weapon was connectedwith the offense. For example, the enhancement would not beapplied if the defendant, arrested at his residence, had anunloaded hunting rifle in his closet.” U.S.S.G. § 2D1.1,comment. (n.3) (emphases added). Initially, the prosecutionmust prove, by a preponderance of evidence, that “(1) thedefendant 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 theclearimprobabilityofany connectionbetween the drug offense andthe weapon.Id.The district court found that, in mid-December 1996,Thomas had possessed his modified .22 caliber rifle duringthe commission of a drug trafficking crime. In opposition,Thomas has contended that the United States failed to prove8United States v. Dunlap, et al.Nos. 98-3855/385610Count two of the indictment had charged Thomas with possessionof cocaine base with intent to distribute on or about December 14, 1996,the approximate date of the firearm transfer. As stated above, the districtcourt dismissed that count, and others, pursuant to a Rule 11 pleaagreement, under which Thomas pled guilty to the conspiracy charge(count one). However, criminal activities linked to the crime ofconviction which are proved at sentencing by a preponderance ofevidence should bepunished as “relevant conduct,” even if suchmisconduct had been uncharged, or charged in a count of dismissal oracquittal. U.S.S.G. § 1B1.3(a)(1)(A);United States v. Lloyd, 10 F.3d1197, 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 narcoticstransgression; and, in any event, he purportedly had provedthe “clear improbability” of any connection between thatweapon and any drug crime which he had committed. He hasemphasized that, when he vended his sawed-off long gun tothe CI, he did not contemporaneously distribute any cocainebase.However, as illustrated above, Thomas was a professionaldope peddler who pleaded guilty to conspiratorial possessionand distribution of cocaine base. During the firearmtransaction in controversy, he physically possessed two gramsof crack, which he weighed in the presence of the CI for themanifest purpose of (1) notifying the CI that those illegalstimulants were available for purchase, and/or (2) preparingthem for street distribution. Hence, no clear error infected thesentencing court’s rational inference, supported by apreponderance of evidence, that Thomas possessed thetruncated rifle while in felonious possession of “distribution”crack, thus satisfying the prosecution’s burden of proof.10Moreover, Thomas has failed to discharge his rebuttalburden. His personal carriage of the altered rifle during hisactive commission of a drug trafficking offense raises theinescapable inference that he possessed the gun in connectionwith his concurrent narcotics infraction.See, e.g.,UnitedStates v. Gibson, 135 F.3d 1124, 1128 (6th Cir.) (resolvingNos. 98-3855/3856United States v. Dunlap, et al.911Section 924(c) postulates, in pertinent part:Whoever,during and in relation toany . . . drug traffickingcrime . . . for which he may be prosecuted in a court of theUnited States, uses or carries a firearm, shall, in addition to thepunishment provided for such . . . drug trafficking crime, besentenced to imprisonment for five years[.]18 U.S.C. § 924(c)(1). (Emphasis added).12This appellate forum has recognized that Congress has speciallycategorized 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 pistolbartered by undercover agents to the defendant in exchangefor cocaine base was possessed by the defendant inconnection with the defendant’s narcotics offense for section2D1.1(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 enhancementignited by the defendant’s sale of a .22 caliber revolver, alongwith cocaine base, to an incognito ATF agent);see generallyUnited 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 18U.S.C. § 924(c),11that a person who personally transports afirearm to a drug deal has carried that weapon “in relation to”the underlying narcotics transaction, irrespective of any otherpurpose he may have allegedly had for carrying thatinstrument) (citing, inter alia, Muscarello v. United States,524 U.S. 125, 131-38 (1998)).The conclusion that Thomas’ possession of the refashionedrifle was “connected” to a conspiratorial narcotics violation isbolstered by the trial court’s explicit finding that “its stock[had been] sawed from the end to make it handle as if it werealmost a pistol.” The rifle’s alterations rendered it a typicalcriminal instrumentality suitable for use as a cash-and-drugsprotection tool and/or a street dealer’s enforcementimplement.12SeeU.S.S.G. § 2D1.1, comment. (n.3)