*

The Honorable Dean Whipple, Chief Judge for the United States District

Court, Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-3129

___________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the Western

v. * District of Missouri.

*

Edward James Gleason, Jr., * [UNPUBLISHED]

*

Appellant. *

___________

Submitted: April 17, 2002

Filed: April 23, 2002

___________

Before HANSEN, Chief Judge, BRIGHT and FAGG, Circuit Judges.

___________

PER CURIAM.

Edward James Gleason, Jr. pleaded guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g) (1994). The district court*

 applied a fourlevel enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2000)

for possessing a firearm in connection with another felony offense because Gleason

possessed felony-level quantity of crack cocaine. The district court also applied a

two-level enhancement under § 3C1.1 for obstruction of justice because Gleason lied
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at his sentencing hearing. The presentence investigation report (PSR) indicated that

Gleason was on probation at the time of his weapons offense, adding two criminal

history points to Gleason’s total. The district court determined that Gleason’s

sentencing range was 57-71 months imprisonment and sentenced him to 60 months

in prison. Gleason now appeals his sentence. We review the district court’s

interpretation of the sentencing guidelines de novo and its factual findings for clear

error. United States v. Petersen, 276 F.3d 432, 436 (8th Cir. 2002).

We reject Gleason’s contention that the district court mistakenly applied the

§ 2K2.1(b)(5) firearm enhancement. The district court credited the law enforcement

officer’s testimony that when the residence subject to the warrant was searched, crack

cocaine, a letter addressed to Gleason, and an electronic scale were found on a dresser

in the same room where two firearms were found. We find no error in these factual

findings. The close physical proximity between the guns and the drugs is sufficient

to show that the guns were used in connection with another felony. United States v.

Martinez, 258 F.3d 760, 761-62 (8th Cir. 2001). We also reject Gleason’s contention

that the district court improperly applied the § 3C1.1 enhancement for obstruction of

justice. After hearing testimony from Gleason and law enforcement officers, the

district court found that Gleason lied at the sentencing hearing. Committing perjury

is sufficient to support an obstruction of justice enhancement. United States v.

Brooks, 174 F.3d 950, 958-59 (8th Cir. 1999).

Gleason next contends that his criminal history category was miscalculated

because he was given two points for having committed the offense while on

probation, but his term of probation had expired. The Government concedes that

Gleason’s term of probation had expired by operation of law. The Kansas City

Municipal Court issued probation warrants in 2000 for 1996 misdemeanor

convictions. Because the maximum probationary term for misdemeanors is two years,

Gleason’s probation expired in 1998 and the state court was without jurisdiction to

issue the warrants in 2000. See Mo. Rev. Stat. § 559.016.1(2) (2000); Jordan v.
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Flynn, 903 S.W.2d 261, 262 (Mo. Ct. App. 1995). Correcting the criminal history

calculation results in a guideline range of 51-63 months. The correct guideline range

overlaps the range used by the district court; the 60 month sentence imposed falls

within both ranges. Even if the imposed sentence falls within the corrected guideline

range, we remand for resentencing unless it is clear that the sentencing court would

have imposed the same sentence. United States v. Mayer, 130 F.3d 338, 339 (8th Cir.

1997) (citing United States v. Simpkins, 953 F.2d 443, 446 (8th Cir. 1992)). Based

on our review of the record, we cannot say whether the district court would have

imposed the same 60 month sentence under the correct 51-63 month range. Thus, we

remand to the district court for resentencing within the 51-63 month range. 

A true copy.

Attest:

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