### The Honorable Howard F. Sachs, United States District Judge 1 

### for the Western District of Missouri, sitting by designation. The Honorable Thomas M. Shanahan, United States District 2 

### Judge for the District of Nebraska. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1593

___________ United States of America * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. * Henry "Hank" Belitz * * Appellant. *

___________ Submitted: January 15, 1998 Filed: April 1, 1998

___________ Before RICHARD S. ARNOLD, Chief Judge, MORRIS SHEPPARD ARNOLD, Circui t Judge and SACHS, District Judge. 1

___________ SACHS, District Judge. Appellant Henry Belitz was indicted for conspiracy to distribut e met hamphetamine, use of a firearm during and in relation to a dru g trafficking crime, possession with intent to distribute methamphetamine, and possession of a firearm by a convicted felon. Belitz pled guilty to the conspiracy charge and was sentenced by the district court to 60 months 2 imprisonment. On appeal, Belitz

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contends that the district court erred in (1) enhancing his sentence for possession of a firearm pursuant to § 2D1.1(b)(1) of the Sentencin g Guidelines and (2) re fusing to reduce Belitz's base offense level for his miti gating role in the offense pursuant to § 3B1.2 of the Sentencin g Guidelines. We affirm.

I. In 1994, law enforcement personnel b egan investigating a methamphetamine distribution co nspiracy involving, among other individuals, Michael Cresto ni. Mr. Crestoni cooperated with law enforcement and admitte d selling methamphetami ne to various street dealers. The investigation led to the execution of a search warrant on appellant Belitz's residence.

In the course of executing the search warrant, police discovere d ap proximatelysix and one-half pounds of methamphetamine in Belitz' s baseme nt. Two locked bags containing approximately six pounds o f methamphetamine were found in a small refrigerator; the remainder of the narcotics, 380 grams of methamphetamine, were found in a locked tool box. Belitz did not have a key to the locked bags and, although he owned the ke y to the tool box, had given that key to Crestoni and did not have it in his possession at the time of the search. Money, sc ales and weapons were also found in the basement . Upstairs, in Belitz's living room, police found a loaded semi-automatic pistol on the television set.

Belitz pled guilty to conspiracy with intent to distribute metham

phetamine. At the direction of the district court, the probation office prepared a presentence report. Belitz objected to the amount of methampheta mine used to calculate his base offense level, in addition to th e firearm enhancement and the role in the offense appraisal.

At an evi dentiary hearing, the district court sustained appellant's first objection, finding that Belitz had accountability

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for only between 100 and 400 grams of methamphetamine, the drugs found in the tool box. The court rejected his other objections, which are th e subject of this appeal.

II. A. Section 2D1.1(b)(1) Enhancement Section 2 D1.1(b)(1) of the Sentencing Guidelines provides for a two level increase in a defendant's base offense level "[i]f a dangerous weapo n (including a firearm) was possessed." The Government has the burden a t sentencin g to show by a preponderance of the evidence that a weapon wa s present and that it is not clearly improbable that the weapon was connecte d with the criminal activity. United States v. Vaughn , 111 F.3d 610, 61 6 (8th Cir. 1997), applying U.S.S.G. § 2D1.1, Application Note 3. Th e district court's finding that a weapon was sufficiently connected to the offense is reviewed for clear error. United Sta tes v. Fairchild , 122 F.3d 605, 614 (8th Cir. 1997), cert. denied , sub nom. Leisinger v. Unite d States , ___ U.S. ___, 118 S.Ct. 1086 (1998).
Belitz contends that it was clearly improbable that the gun found in his living room had a ny connection with the drugs stored in his basement. In support of this contention Belitz first asserts that he had a legitimat e and innocent reason for possessing the gun. At sentencing, Belitz offered testimony that the gun belonged to a friend of his and that Belitz, a gunsmith, had been given the gun for the purpose of making repairs. At th e time the search warrant was executed, Belitz hadcompleted the repairs and had told his friend that he could pick up his gun. He asserted that h e left the gun on top of the television so that his friend could easil y retrieve it, and that he loaded the gun because the weapon was loaded when he received it. Belitz stated he had directed t he two people with whom he shared his residence to return the gun to his friend when he arrived.

### At sentencing, the district court ruled that the Government 3 

### had established no nexus between the gun in the truck and the criminal activity. Accordingly, that handgun is not relevant for purposes of this appeal.
-4- Belitz also contends that he should not receive an enhancemen t because he had no reason to use a weapon to protect the drugs and, when th e opportunity arose to use a weapon against the police, he was nonviolent an d cooper ative. Belitz testified that he had been storing valuables , includ ing the methamphetamine, for Crestoni, a long-time friend. H e reported that he and Crestoni often exchanged favors and, on a number of occasions, Belitz had allowed Crestoni to store valuables in his home

. Approx imatelyone month before the execution of the search warrant , Cre stoni was in the process of moving and, afraid that one of hi s associates would rob him, asked to store some valuables in Belitz' s residence. Belitz ga ve Crestoni access to his basement, including use of a locked tool box and the key to that tool box. At that time, Belitz said he did not know what Crestoni was storing. Appr oximately two weeks later, Belit z testified, he observed Crestoni place money in the tool box an d remove a bag of powde r from the tool box; at that time he supposedly told Crestoni to remove the drugs from his house. Cr estoni had not removed the drugs whe n the search warrant was executed. Belitz testified he had n o motive to protect the methamphetamine because he did not share in th e profits from Crestoni's drug distribution. Furt hermore, he testified that
on the morning the search warrant was executed, he made no attempt to elud e police or to use a weapon against the police, de spite the fact that he had a handgun in the truc k in which he arrived at his house. Belitz reported that he c ooperated with police, even leading them to the handgun in th e vehicle. 3

Be litz's contentions do not require reversal. Another's ownershi p of the gun is not con trolling if a defendant had constructive possession, including dominion or control, over the weapon. Fairchild , 122 F.3d a t 614; United States v. Payne , 81

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F.3d 7 59, 762 (8th Cir. 1996). Belitz clearly had dominion over th e firearmat the time it was found. Nor is the fact that Belitz allegedly possessed the gun for a legitimate purpose contr olling. See United States

v. Early , 77 F.3d 242, 244 (8th Cir. 1996) (upholding enhancement wher e defendant claimed he was trying to sell firearm in a transaction separate from drug sale); United States v. Kinshaw , 71 F.3d 268, 271 (8th Cir. 1995 ) (uphol ding enhancement where defendant possessed a gun he was allegedl y "merely a djusting" for the owner). Although Belitz may have had a n innocent reason for obtaining the gun, the weapon was found in an open are a leading to the drugs, was loaded and was easily accessible. A temporal an d spatial relation thus existed between Belitz, the weapon, and the drugs. See Payne , 81 F.3d at 763. Although he had no financial stake i n Crestoni's operation, Crestoni was a friend and Belitz was aware that he was storing methamphe tamine and cash in his basement. At the very least, the district court was entitled to conclude that the readily accessible gu n enha nced appellant's comfort level while the drugs were in his home

. Althoug h Belitz testified that he had no reason to protect Crestoni' s proper ty, such self-serving testimony need not be accepted when th e surrounding circumstances create doubt and a high incentive to fabricate exists. The district court based its ruling in part on "witness credibility ." It was not clear error for the district court to find that th e Government's circumstantial showing established the required nexus between the handgun and the d rug activity. The persuasive nature of that showing was not necessarily overcome by the attempted rebuttal.

B. Section 3B1.2 Reduction Section 3 B1.2 of the Sentencing Guidelines provides for a reduction in a defe ndant's base offense level if the defendant is found to be a minimal or minor participant in the criminal offense. The Commentary to § 3B1.2 explains that the 4 level minimal role reduction is "intended to
cover defendants who are plainly among the least culpable of those involve d in the conduct of a group."

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§ 3B1.2, Application Note 1. A defendant's lack of knowledge o r understanding of the scope and structure of the enterprise is indicative of a role as minimal participant. Id. A 2 level reduction is authorized where a de fendant's role is minor but not minimal. § 3B1.2(b). Th e propriety of a downwa rd adjustment is determined by comparing the acts of each par ticipant in relation to the relevant conduct for which th e parti cipant is held accountable and by measuring each participant' s indivi dual acts and relative culpability against the elements of th e off ense. United States v. Goebel , 898 F.2d 675, 677 (8th Cir. 1990)

. Whether a defendant's role in the criminal activity was minimal or minor is a factual determination and, accordingly, we will affirm the district court's conclusion that Belitz was not a minimal or minor participan t unless it is clearly erroneous. Id.

Belitz argues that he is entitled to a reduction because he wa s
unaware of the scope of the criminal enterprise and even unaware of most of the drugs stored in his house. The district court agreed with Belitz that he could not have foreseen the full amount of drugs in his home or th e scope of the enterpri se in which Crestoni was involved. Accordingly, the court held him accountable only for the amount of narcotics Belitz knew wa s being stored in his h ome or, at least, the amount Belitz assumed the risk that his friend would store. He was admittedly aware of drugs in the tool box, and the quantity was not so extraordinary as to be treated a s unforeseeable. The p urpose for reducing a defendant's base offense level where the defendant had little or no understanding of the scope of th e enterprise had thus already been accomplished. If a defendant has recei ved a lower offense level by virtue of being convicted of an offense significantly less serious than war ranted by his actual criminal conduct, a reduction for a mitigating role under th is section ordinarily is not warranted because such defendant i s not substantially less culpable than a defendant whose only conduct involved the less seriou s offense.

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U.S.S.G. § 3B1.2, App lication Note 4. Although he was not convicted of a less serious offense, Belitz's base offense level was based not on the ful l six and one-half pounds of methamphetamine found in his home, but upon onl y 380 grams. In relation to this small amount for which he was hel d accountable, Belitz was not a minimal or minor actor.

Appellant also argues that his base offense level should be reduced because he played no vital role in the conspiracy but merely served as a storage facility for Crestoni; he arranged no sales and received n o profits. The district court, however, found that his voluntary and knowin g storag e of a substantial amount of methamphetamine was sufficient t o preclude a decrease for a minor role. We cannot conclude that thi s determination was erroneous. Crestoni needed a place to store his drugs and Bel itz provided him a safe haven. Belitz also provided a place fo r Crestoni to store proceeds from his drug distrib ution. Belitz thus played a significant role in the conspiracy. The fact that Belitz did not profit from t he arrangement and stored the narcotics only as a favor is no t dispositi ve. See United States v. Ellis , 890 F.2d 1040, 1041 (8th Cir

. 1989). Accordingly, we agree with the district court's conclusion that a decrease in the offense level is not warranted.

Fo r the foregoing reasons, the judgment of the district court i s affirmed.

A true copy.

Attest:

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