The Honorable Susan Webber Wright, United States District 1

Judge for the Eastern District of Arkansas.

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No. 96-2095

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Fred Stephen McCaslin, *

* [UNPUBLISHED]

Appellant. *

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 Submitted: October 25, 1996

 Filed: November 26, 1996

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Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.

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PER CURIAM.

Fred S. McCaslin challenges the sentence imposed by the District

Court after he pleaded guilty to conspiring to possess methamphetamine

1

with intent to distribute. We affirm.

According to the presentence report (PSR), a search of McCaslin's and

a codefendant's residence uncovered roughly 18.5 grams of methamphetamine

and two loaded semiautomatic pistols. McCaslin was "directly connected"

to over 31 kilograms of methamphetamine, but the government stipulated that

for sentencing purposes, he was accountable for 1 to 3 kilograms. The PSR

assessed a two-level increase under U.S. Sentencing Guidelines Manual

§ 2D1.1(b)(1) (1995), because McCaslin possessed the firearms "in

connection with" his drug-trafficking activities.
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In a letter to the probation officer, McCaslin's counsel objected to

the section 2D1.1(b)(1) increase, asserting that there was no evidence

McCaslin had possessed any firearm during his drug-trafficking activities

and that the increase could not be imposed absent evidence that McCaslin

had actively used the guns. At sentencing, although counsel briefly

mentioned that the guns were never tied to any type of drug deal and that

there was not a clear showing of ownership, he primarily argued that under

Bailey v. United States, 116 S. Ct. 501 (1995), a defendant had to actively

use a gun to be held accountable for it. The District Court concluded

Bailey was inapplicable, overruled the objection, and sentenced McCaslin

to 262 months imprisonment and five years supervised release.

McCaslin now contends the District Court erred in assessing the twolevel increase, because the government offered no evidence that he

possessed the guns in connection with his criminal activity and the Court

failed to make a finding on this disputed fact.

A two-level increase is appropriate if the government proves by a

preponderance of the evidence that the defendant possessed a dangerous

weapon and it is not clearly improbable the weapon was connected with the

offense. See U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) & comment

(n.3) (1995); United States v. Betz, 82 F.3d 205, 210 (8th Cir. 1996).

McCaslin did not dispute that the firearms were found with the drugs at his

residence during the period of the conspiracy to which he pleaded guilty.

Those undisputed facts were sufficient to support the section 2D1.1(b)(1)

increase. See United States v. LaRoche, 83 F.3d 958, 959 (8th Cir. 1996)

(per curiam) (district court entitled to accept as true factual statements

in PSR to which defendant does not object); United States v. TauilHernandez, 88 F.3d 576, 580 (8th Cir. 1996) (in conspiracy case, sufficient

nexus for § 2D1.1(b)(1) increase established if weapons found in same

location as drugs or where part of conspiracy occurred); United States v.

Hiveley, 61 F.3d
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1358, 1363 (8th Cir. 1995) (per curiam) (proof of connection between

firearms and criminal activity does not require showing defendant used or

touched gun; constructive possession will suffice); see also United States

v. Thomas, 93 F.3d 479, 488 n.5 (8th Cir. 1996) (stating that Bailey does

not affect application of § 2D1.1(b)(1)). The District Court was not

obligated to make a factual finding on the matter McCaslin now raises,

because he did not make a clear and specific objection as to that issue.

See United States v. Toirac, 917 F.2d 11, 13 (8th Cir. 1990).

Accordingly, the judgment of the District Court is affirmed.

A true copy.

Attest:

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