United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-1796

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the Western

v. * District of Missouri.

*

Vincent B. Swain, * [UNPUBLISHED]

*

Appellant. *

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Submitted: September 12, 2000

Filed: September 19, 2000

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Before RICHARD S. ARNOLD, FAGG, and BYE, Circuit Judges.

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PER CURIAM.

Vincent B. Swain pleaded guilty to one count of conspiracy to possess with the

intent to distribute more than 500 grams of cocaine. The district court applied a twolevel enhancement under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1998) for

possession of a firearm and sentenced Swain to 156 months imprisonment. 

Swain appeals the application of the § 2D1.1(b)(1) enhancement, contending the

Government did not establish by a preponderance of the evidence that Swain possessed

the firearm found during a search of his girlfriend's apartment. We disagree. "The
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district court must impose the [§ 2D1.1(b)(1)] enhancement unless it finds that it is

'clearly improbable that the weapon had a nexus to criminal activity.'" United States v.

Fairchild, 189 F.3d 769, 779 (8th Cir. 1999) (quoted case omitted); accord U.S.S.G.

§ 2D1.1 cmt. n.3. "In a conspiracy case, a sufficient nexus is established if 'the weapon

was found in the same location where drugs or drug paraphernalia were stored, or

where part of the conspiracy took place.'" United States v. Tauil-Hernandez, 88 F.3d

576, 580 (8th Cir. 1996) (quoted case omitted). Here, the district court heard evidence

that Swain's girlfriend was involved in the conspiracy with Swain to distribute cocaine,

that Swain periodically stayed at his girlfriend's home, that Swain knew the gun was

in his girlfriend's home, that Swain knew the girlfriend's home was a transfer point for

the drugs involved in the conspiracy, and that the gun was found in close proximity to

drugs and drug paraphernalia. Thus, a sufficient nexus between the gun and the drug

conspiracy to which Swain pleaded guilty was established, and the district court did not

commit clear error in applying the § 2D1.1(b)(1) enhancement. See id. (§ 2D1.1(b)(1)

enhancement appropriate because defendant knew coconspirators possessed gun in

furtherance of conspiracy, even though defendant testified she was afraid of gun and

never used it); Fairchild, 189 F.3d at 779 (weapons owned by defendant and found in

coconspirator's home were sufficient evidence to justify § 2D1.1(b)(1) enhancement to

defendant's sentence); United States v. Turpin, 920 F.2d 1377, 1386 (8th Cir. 1990)

("single gun may justify an enhancement of the sentences of both [coconspirators],

since possession of a gun by either would suffice to justify an upward adjustment of the

other's offense level if it was reasonably foreseeable that one of them would possess

a gun in furtherance of the jointly undertaken criminal activity"). 

We have reviewed Swain's remaining arguments and conclude they are likewise

without merit. We affirm. See 8th Cir. R. 47B.
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A true copy.

Attest:

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