### The Honorable John B. Jones, United State s District Judge for 1 

### the District of South Dakota, sitting by designation. The Honorable Donald J. Stohr, United States District Judge 2 

### for the Eastern District of Missouri. _____________ No. 96-1728

_____________ United States of America, * * Plaintiff/Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Antwain D. Smith, * * [UNPUBLISHED] Defendant/Appellant. *

_____________ Submitted: January 14, 1997 Filed: February 25, 1997

_____________ Before BOWMAN and MURPHY, Circuit Judges, and JONES, District Judge. 1

_____________

PER CURIAM.

Antwain Smith was convicted of two counts of illegal firear m poss ession and sentenced to 138 months in prison. Smith appeals hi s conviction , claiming that the district court erred by denying his motion 2 for a severance and by enhancing his sentence by four levels unde r Sentencing Guidelines § 2K2.1(b)(5) for possessi ng a firearm in connection with the f elony of possession with the intent to deliver an imitatio n controlled substance. We affirm.

### Smith has n ot shown that the district court clearly erred in 3 

### admitting this evidence in light of the defense offered at trial. 2 Smith was charged in one indictment with three counts involvin g fir earms and ammunition. Count I charged Smith with being a felo n knowi ngly in possession of a nine millimeter pistol in violation of 1 8 U.S.C
. §§ 922(g), 924(a)(2); count II charged knowing possession of a sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d), 5871; and count II I charged felon knowingly in possession of ammunition in violation of 1 8 U.S.C. § 922(g)(1). Smith's motion to sever was denied, and the count s were tried together. A jury found him guilty on counts I and II, and not guilty on count III.

Joinder of charges is permitted if they are of the same or similar chara cter. Fed. R. Crim. P. 8(a). They must involve the same types o f offenses committed over a relatively short perio d of time and the evidence for each count must o verlap. United States v. Lindsey , 782 F.2d 116, 117 (8th Cir. 1986). We review joinder de novo. United States v. Rodgers , 73 2 F.2 d 625, 628 (8th Cir. 1984). Here the offenses involved illega l possession of firearms and ammunition, and they occurred within a ten mont h period which is within the range of time foresee n by the rule. See Id. at 629-30 (permitting joinder of offenses that were twenty months apart). Th e evidence also overlapped. Evidence of two state firearm felony conviction s and a state conviction for the sale of crack coc aine was admitted to prove the necessary element of a prior felony for counts I and III and to show knowing possession for all counts. 3

A court may order separate trials if the joinder of offense s prejudices a defendant. Fed. R. Crim. P. 14. Smith sought to sever all counts. The burden is on the defendant to make a "persuasive and detailed showing regarding the testimony he would

### 3

give on the count he wishes severed and the reason he cannot testify on th e oth er counts." United States v. Possick , 849 F.2d 332, 338 (8th Cir

. 1988). Smith did not meet this burden because he merely offered th e general st atement that he did not want to testify regarding count II I bec ause the testimony might be used by the state if it refiled murde r charges against him, but that he wanted to testify regarding counts I and II. The district court did not abuse its discretion in denying Smith' s severance motion. Smith challenges the sufficiency of the evidence supporting the four level increase under Sentencing Guidelines § 2K2.1(b)(5) for possessing a firearm in connection with a felony. He claims the government did not sho w he i ntended to deliver an imitation controlled substance or that hi s pos session of the gun was related to the imitation drugs. A sentenc e enhanceme nt may be based on facts proved only by a preponderance of th e evidence. See United States v. Watts , 117 S. Ct. 633, 637 & n.2 (1997). The jury concluded that Smith possessed a sawed-off shotgun and a police office r testified in the sentencing hearing that Smith had imitatio n cocaine at the time. There was also testimony that Smith and members of his gang had sold coc aine and that it was common for drug dealers to sell imitation drugs. It could be inferred that as an experienced cocain e handler and dealer, Smith would not have held imitation cocaine for his ow n consumption, but rather intended to deliver it. Further, the possession of the firearm along with drugs is evidence of an intent to deliver. See United State s v. White , 81 F.3d 80, 82 (8th Cir. 1996). There wa s sufficient evidence t o support the district court's findings and the four level enhancement.
The judgment is affirmed.

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A true copy.

Attest:

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