The Honorable Stephen N. Limbaugh, United States District Judge for the

1

Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-4013

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Eastern District of Missouri.

Jesse Ball, also known as Junior, *

 * [UNPUBLISHED]

Appellant. *

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 Submitted: September 23, 1997

 Filed: September 29, 1997

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Before McMILLIAN, BEAM, and MURPHY, Circuit Judges.

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PER CURIAM.

Jesse Ball appeals his 170-month sentence imposed by the district court,1

following a remand for resentencing in United States v. Ball, 90 F.3d 260 (8th Cir.

1996). His counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

and was granted leave to withdraw. Ball has filed a supplemental pro se brief. We

affirm. 
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A jury convicted Ball of six drug trafficking and firearms offenses. In his first

appeal, he challenged the district court&s denial of his motion to suppress and two

firearms convictions. We reversed the firearms convictions under Bailey v. United

States, 116 S. Ct. 501 (1995), affirmed the remaining convictions, and remanded for

resentencing. See Ball, 90 F.3d at 261.

On resentencing, the district court then sentenced Ball to 170 months

imprisonment and 4 years of supervised release, imposing a 2-level enhancement for

possession of a firearm, see U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1995),

and a 2-level enhancement for obstruction of justice, see U.S. Sentencing Guidelines

Manual § 3C1.1 (1995). On appeal, Ball argues the district court&s assessment of both

enhancements was clearly erroneous. 

Section 2D1.1(b)(1) “reflects the increased danger of violence when drug

traffickers possess weapons,” and the enhancement “should be applied if the weapon

was present, unless it is clearly improbable that the weapon was connected with the

offense.” U.S. Sentencing Guidelines Manual § 2D1.1, comment. (n.3) (1995). The

government has the burden of proving by a preponderance of the evidence both that

the weapon was present and that it is probable the weapon was connected with the drug

charge. See United States v. Richmond, 37 F.3d 418, 419-20 (8th Cir. 1994), cert.

denied, 513 U.S. 1178 (1995). According to trial evidence, in the residence Ball

occupied, detectives found on one occasion guns in the living room and in the kitchen

next to crack cocaine and drug paraphernalia, and on another occasion, crack cocaine

in the front room and guns in a closet and on the pool table. Based on this evidence,

the district court did not clearly err in assessing the enhancement. See id. (standard of

review; affirming enhancement where firearms and drugs were found in defendant&s

apartment). 

Upon our careful review of the record, we also conclude that the district court

did not err by imposing the two-level enhancement for obstruction of justice because
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the district court&s finding that Ball committed perjury during his trial testimony was not

clearly erroneous. See United States v. Patino-Rojas, 974 F.2d 94, 96 (8th Cir. 1992)

(per curiam) (standard of review), cert. denied, 507 U.S. 974 (1993). The

obstruction-of-justice enhancement may be imposed when “#there is a strong finding

of perjury based on the trial judge&s independent evaluation of the defendant&s

testimony& at trial.” Id. (citations omitted). Here, the district court made an independent

finding that Ball committed perjury when Ball specifically denied a great portion of the

police detectives& testimony. See United States v. Turk, 21 F.3d 309, 313 (8th Cir.

1994) (affirming U.S. Guidelines Manual § 3C1.1 enhancement based on perjury where

court examined defendant&s testimony and concluded she committed perjury by denying

involvement in offense). 

We need not consider the additional arguments Ball raised in his supplemental

pro se brief because he could have raised them in his first direct criminal appeal. See

United States v. Kress, 58 F.3d 370, 373-74 (8th Cir. 1995). Finally, Ball&s claims of

ineffective assistance of counsel are more appropriately resolved in 28 U.S.C. § 2255

proceedings. See United States v. Logan, 49 F.3d 352, 361 (8th Cir. 1995). 

Having carefully reviewed the record, we find no other nonfrivolous issue for

appeal. See Penson v. Ohio, 488 U.S. 75, 80 (1988).

Accordingly, we affirm.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.