United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-2788

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United States of America, *

*

Plaintiff - Appellee, * Appeal from the United States

* District Court for the

v. * Western District of Missouri.

*

Christopher J. Thomas, * [UNPUBLISHED]

*

Defendant - Appellant. *

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Submitted: April 12, 2010

Filed: July 23, 2010

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Before LOKEN, HANSEN, and MELLOY, Circuit Judges.

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PER CURIAM.

Christopher Thomas was arrested during a confidential informant’s third

purchase of crack cocaine. A warrant search of Thomas’s residence yielded four bags

containing crack cocaine in the laundry room, a shotgun in the bedroom closet, a

loaded Glock pistol in a drawer under the bed, and ammunition for both firearms.

Thomas’s wife told police that Thomas sells crack cocaine but not from the residence,

and that she had observed him cook cocaine in the residence. Thomas admitted the

firearms were his. He was indicted and pleaded guilty to possession with intent to

distribute five grams or more or cocaine base. He then committed additional drug

offenses in the District of Kansas.
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The HONORABLE HOWARD F. SACHS, United States District Judge for the

Western District of Missouri.

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The Presentence Investigation Report recommended a two-level increase

because Thomas possessed a firearm. See U.S.S.G. § 2D1.1(b)(1). Thomas objected

and, at sentencing, presented testimony that he purchased the firearms some ten years

earlier while working at a liquor store that required employees to purchase firearms.

The district court1

 overruled the objection and imposed the two-level increase,

resulting in an advisory guidelines sentencing range of 121 to 151 months in prison.

The court sentenced Thomas to 121 months concurrent with his sentence for the

subsequent Kansas offenses.

On appeal, Thomas argues the district court erred because the government

failed to prove “that it is at least probable that the weapon was connected with the

offense,” quoting United States v. Payne, 81 F.3d 759, 762 (8th Cir. 1996), and United

States v. Hayes, 15 F.3d 125, 127 (8th Cir.), cert. denied, 512 U.S. 1225 (1994).

However, in United States v. Peroceski, 520 F.3d 886, 887 (8th Cir.), cert. denied, 129

S. Ct. 259 (2008), we noted “two competing lines of cases in our circuit” on this

question. Unlike Payne and Hayes, most of our twenty-five prior decisions applied

the standard found in the guidelines commentary, imposing the increase “if the

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

with the offense.” Id. at 887-88; U.S.S.G. § 2D1.1 comment. (n.3). Noting the

commentary is binding unless plainly erroneous, and that all other circuits apply the

clearly improbable standard, we held that the government “must simply show that it

is not clearly improbable that the weapon was connected to the drug offense.” Id. at

889.

We agree with Peroceski and conclude the government easily met the “not

clearly improbable” standard in this case. A stash of crack cocaine was found at the

residence where the firearms were discovered, and Thomas’s wife advised police he
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had cooked cocaine there. The district court did not clearly err in inferring from these

facts a “likely connection” between the previously acquired firearms and the later drug

activities because, as the court explained, “it could be an additional reason for having

drug activities on the premises because the firearms were present.” Though the

controlled buys did not take place at the residence, “[t]he dangerous weapon

enhancement applies if the firearm is present during ‘relevant conduct,’ as defined by

U.S.S.G. § 1B1.3(a)(2), not merely during the offense of conviction.” United States

v. Ault, 446 F.3d 821, 824 (8th Cir. 2006) (quotations omitted).

The judgment of the district court is affirmed. 

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