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, Circuit

Judge and SACHS, District Judge. 1

___________

SACHS, District Judge.

Appellant Henry Belitz was indicted for conspiracy to distribute

methamphetamine, use of a firearm during and in relation to a drug

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 Sentencing

Guidelines and (2) refusing to reduce Belitz's base offense level for his

mitigating role in the offense pursuant to § 3B1.2 of the Sentencing

Guidelines. We affirm.

I.

In 1994, law enforcement personnel began investigating a methamphetamine distribution conspiracy involving, among other individuals, Michael

Crestoni. Mr. Crestoni cooperated with law enforcement and admitted

selling methamphetamine 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 discovered

approximately six and one-half pounds of methamphetamine in Belitz's

basement. Two locked bags containing approximately six pounds of

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 key

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, scales 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 methamphetamine. At the direction of the district court, the probation office

prepared a presentence report. Belitz objected to the amount of methamphetamine used to calculate his base offense level, in addition to the

firearm enhancement and the role in the offense appraisal.

At an evidentiary 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 the

subject of this appeal.

II.

A. Section 2D1.1(b)(1) Enhancement

Section 2D1.1(b)(1) of the Sentencing Guidelines provides for a two

level increase in a defendant's base offense level "[i]f a dangerous weapon

(including a firearm) was possessed." The Government has the burden at

sentencing to show by a preponderance of the evidence that a weapon was

present and that it is not clearly improbable that the weapon was connected

with the criminal activity. United States v. Vaughn, 111 F.3d 610, 616

(8th Cir. 1997), applying U.S.S.G. § 2D1.1, Application Note 3. The

district court's finding that a weapon was sufficiently connected to the

offense is reviewed for clear error. United States v. Fairchild, 122 F.3d

605, 614 (8th Cir. 1997), cert. denied, sub nom. Leisinger v. United

States, ___ U.S. ___, 118 S.Ct. 1086 (1998).

Belitz contends that it was clearly improbable that the gun found in

his living room had any connection with the drugs stored in his basement.

In support of this contention Belitz first asserts that he had a legitimate

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 the

time the search warrant was executed, Belitz had completed the repairs and

had told his friend that he could pick up his gun. He asserted that he

left the gun on top of the television so that his friend could easily

retrieve it, and that he loaded the gun because the weapon was loaded when

he received it. Belitz stated he had directed the 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.

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Belitz also contends that he should not receive an enhancement

because he had no reason to use a weapon to protect the drugs and, when the

opportunity arose to use a weapon against the police, he was nonviolent and

cooperative. Belitz testified that he had been storing valuables,

including the methamphetamine, for Crestoni, a long-time friend. He

reported that he and Crestoni often exchanged favors and, on a number of

occasions, Belitz had allowed Crestoni to store valuables in his home.

Approximately one month before the execution of the search warrant,

Crestoni was in the process of moving and, afraid that one of his

associates would rob him, asked to store some valuables in Belitz's

residence. Belitz gave 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. Approximately two weeks later,

Belitz testified, he observed Crestoni place money in the tool box and

remove a bag of powder from the tool box; at that time he supposedly told

Crestoni to remove the drugs from his house. Crestoni had not removed the

drugs when the search warrant was executed. Belitz testified he had no

motive to protect the methamphetamine because he did not share in the

profits from Crestoni's drug distribution. Furthermore, he testified that

on the morning the search warrant was executed, he made no attempt to elude

police or to use a weapon against the police, despite the fact that he had

a handgun in the truck in which he arrived at his house. Belitz reported

that he cooperated with police, even leading them to the handgun in the

vehicle.3

Belitz's contentions do not require reversal. Another's ownership

of the gun is not controlling if a defendant had constructive possession,

including dominion or control, over the weapon. Fairchild, 122 F.3d at

614; United States v. Payne, 81
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F.3d 759, 762 (8th Cir. 1996). Belitz clearly had dominion over the

firearm at the time it was found. Nor is the fact that Belitz allegedly

possessed the gun for a legitimate purpose controlling. See United States

v. Early, 77 F.3d 242, 244 (8th Cir. 1996) (upholding enhancement where

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)

(upholding enhancement where defendant possessed a gun he was allegedly

"merely adjusting" for the owner). Although Belitz may have had an

innocent reason for obtaining the gun, the weapon was found in an open area

leading to the drugs, was loaded and was easily accessible. A temporal and

spatial relation thus existed between Belitz, the weapon, and the drugs.

See Payne, 81 F.3d at 763. Although he had no financial stake in

Crestoni's operation, Crestoni was a friend and Belitz was aware that he

was storing methamphetamine and cash in his basement. At the very least,

the district court was entitled to conclude that the readily accessible gun

enhanced appellant's comfort level while the drugs were in his home.

Although Belitz testified that he had no reason to protect Crestoni's

property, such self-serving testimony need not be accepted when the

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 the

Government's circumstantial showing established the required nexus between

the handgun and the drug activity. The persuasive nature of that showing

was not necessarily overcome by the attempted rebuttal.

B. Section 3B1.2 Reduction

Section 3B1.2 of the Sentencing Guidelines provides for a reduction

in a defendant'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 involved

in the conduct of a group." 
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§ 3B1.2, Application Note 1. A defendant's lack of knowledge or

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 defendant's role is minor but not minimal. § 3B1.2(b). The

propriety of a downward adjustment is determined by comparing the acts of

each participant in relation to the relevant conduct for which the

participant is held accountable and by measuring each participant's

individual acts and relative culpability against the elements of the

offense. 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 participant

unless it is clearly erroneous. Id.

Belitz argues that he is entitled to a reduction because he was

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 the

scope of the enterprise in which Crestoni was involved. Accordingly, the

court held him accountable only for the amount of narcotics Belitz knew was

being stored in his home 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 as

unforeseeable. The purpose for reducing a defendant's base offense level

where the defendant had little or no understanding of the scope of the

enterprise had thus already been accomplished.

If a defendant has received a lower offense level by virtue of

being convicted of an offense significantly less serious than

warranted by his actual criminal conduct, a reduction for a

mitigating role under this section ordinarily is not warranted

because such defendant is not substantially less culpable than

a defendant whose only conduct involved the less serious

offense.
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U.S.S.G. § 3B1.2, Application Note 4. Although he was not convicted of a

less serious offense, Belitz's base offense level was based not on the full

six and one-half pounds of methamphetamine found in his home, but upon only

380 grams. In relation to this small amount for which he was held

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 no

profits. The district court, however, found that his voluntary and knowing

storage of a substantial amount of methamphetamine was sufficient to

preclude a decrease for a minor role. We cannot conclude that this

determination was erroneous. Crestoni needed a place to store his drugs

and Belitz provided him a safe haven. Belitz also provided a place for

Crestoni to store proceeds from his drug distribution. Belitz thus played

a significant role in the conspiracy. The fact that Belitz did not profit

from the arrangement and stored the narcotics only as a favor is not

dispositive. 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.

For the foregoing reasons, the judgment of the district court is

affirmed.

A true copy.

Attest:

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