### The Honorable James M. Rosenbaum, United States District 1 

### Judges for the District of Minnesota. ___________ No. 95-3578

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Maria Delcarmen Kilgore, * * [UNPUBLISHED] Appellant. *

___________ Submitted: April 3, 1996 Filed: April 8, 1996

___________ Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM. Maria Delcarmen Kilgore appeals the 70-month sentence imposed by the district c ourt after she pleaded guilty to conspiring to possess cocaine 1 with intent to distribute, and aiding and abetting the possession o f cocaine with intent t o distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. We affirm.

On January 10 and 26, 1995, a confidential informant (CI) bough t
coc aine from Gustavo Gutierrez, to whom Kilgore admits selling drugs o n those two days. On February 8, the CI, Gutierrez, David Medina, an d Kilgore met at Gutierrez's residence and discussed a drug transaction. Th e next day, the CI and Gutierrez went to an apartment shared by Medina and Kilgore, the CI bought cocaine from Kilgore, and they discussed a future drug transaction. On February 13, they again met at the Medina-Kilgor e apartment and

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negotiated a deal inv olving a half-kilogram of cocaine; Kilgore indicated that if the CI wanted more cocaine, she would arrange it. That evening, the C I and Gutierrez returned to the apartment to consummate the deal

. Upon the CI's signal, law officers entered the apartment and locate d Kilgore trying to flush a bag containing 440 grams of cocaine down th e toilet. Officers seized additional cocaine from a bedroom, and a gun from a kitchen cabinet. Kilgo re advised the authorities that Medina obtained the cocaine ; that he retained most of the sale proceeds and p aid her expenses in return for her storing the cocaine and selling some of it; and that Gutierre z directed buyers to her apartment. Kilgore also stated that prior to the search, Medina had advised her he had a firearm, and she speculated that the gun found in the kitchen--which she claimed not to have seen before-- belonged to Medina or her other roommate.

The p resentence report (PSR) recommended a two-level increase fo r possession of a firea rm under U.S.S.G. § 2D1.1(b)(1). In accordance with the parties' plea agreement, the PSR did not recommend an adjustment for Kilgore's role in the offense. Kilgore objected to the increase, and to the omission of a mitigating-role reduction under U.S.S.G. § 3B1.2. The district court overruled both objections.

We conclude the government met its burden of proving by a preponderance of the evidence that the gun was present during the offense and that it was not c learly improbable the gun had a nexus with Kilgore's criminal activity. See U.S.S.G. § 2D1.1, commen t. (n.3); United States v. Kinshaw , 71 F.3d 268, 271 (8th Cir. 1995). The government did not have to show Kilgore used or touched the gun, and while the mere presence of a gun will not suffice to support the enhancement, con structive possession will. See United States v. Hiveley , 61 F.3d 1358, 1363 (8th Cir. 1995) (pe r curiam). The record demonstrates Kilgore constr uctively possessed the gun by

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exercising dominion a nd control over the apartment, which was used in the storage and distribution of cocaine. See United States v. Williams , 1 0 F.3d 590, 595 (8th Cir. 1993); United States v. Haren , 952 F.2d 190, 198 (8th Cir. 1991). This is true even though the gun was located away from the cocaine and Kilgore. Cf. Williams , 10 F.3d at 595-96 (increase proper wher e gun found in briefcase hidden behind television in bedroom an d defendant found in kitchen with drugs). The district court did not clearl y
err in finding Kilgore possessed a firearm within the meaning of section 2D1.1(b)(1). See Kinshaw , 71 F.3d at 271 (standard of review).

The Guidelines provide for a four-level role reduction if th e defendant was "a minimal participant," i.e., one who was "plainly among th e least c ulpable of those involved in the conduct of a group," and a two

level reduction if th e defendant was "a minor participant," i.e., one who was "less culpable th an most other participants, but whose role could not be described as minim al." U.S.S.G. § 3B1.2(a), (b), & comment. (nn.1,3). Kilgore does not dispute that she was aware of and understood the scope an d struct ure of the conspiracy, as well as Medina's and Gutierrez' s activities. See U.S.S.G. § 3B1.2, comment. (n.1). Kilgore argues that sh e
was less culpable than Medina, who procured the cocaine, and Gutierrez, wh o
mar keted the cocaine, but "[p]articipants in the distribution of drug s often have distinct and independently significant roles." See Unite d States v. Ellis , 890 F.2d 1040, 1041 (8th Cir. 1989) (per curiam); United States v. Logan , 49 F .3d 352, 360 (8th Cir. 1995) (defendant not entitled to minor-participant--much less minimal-participant--reduction simpl y because he was less c ulpable than co-defendant). It is of no consequence that Kilgore acted at Medina's request and may not have profited from her involvement in the conspiracy. See Ellis , 890 F .2d at 1041. Furthermore, Kilgore was directly involved in the distribution of a significant quantit y of coca ine. See United States v. Garvey , 905 F.2d 1144, 1146 (8th Cir

. 1990) (per curiam). The district court did not clearly err in denyin g Kilgore a

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reduction, because she failed to prove she was entitled to one. See Unite d States v. Thompson , 6 0 F.3d 514, 517 (8th Cir. 1995) (standard of review; discussing burden).
Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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