The Honorable James M. Rosenbaum, United States District 1

Judges for the District of Minnesota.

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No. 95-3578

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * District of Minnesota.

Maria Delcarmen Kilgore, *

 * [UNPUBLISHED]

Appellant. *

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 Submitted: April 3, 1996

 Filed: April 8, 1996

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

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PER CURIAM.

Maria Delcarmen Kilgore appeals the 70-month sentence imposed by the

district court after she pleaded guilty to conspiring to possess cocaine 1

with intent to distribute, and aiding and abetting the possession of

cocaine with intent to 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) bought

cocaine from Gustavo Gutierrez, to whom Kilgore admits selling drugs on

those two days. On February 8, the CI, Gutierrez, David Medina, and

Kilgore met at Gutierrez's residence and discussed a drug transaction. The

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-Kilgore

apartment and 
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negotiated a deal involving a half-kilogram of cocaine; Kilgore indicated

that if the CI wanted more cocaine, she would arrange it. That evening,

the CI and Gutierrez returned to the apartment to consummate the deal.

Upon the CI's signal, law officers entered the apartment and located

Kilgore trying to flush a bag containing 440 grams of cocaine down the

toilet. Officers seized additional cocaine from a bedroom, and a gun from

a kitchen cabinet.

Kilgore advised the authorities that Medina obtained the cocaine;

that he retained most of the sale proceeds and paid her expenses in return

for her storing the cocaine and selling some of it; and that Gutierrez

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 presentence report (PSR) recommended a two-level increase for

possession of a firearm 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 clearly improbable the gun had a nexus with Kilgore's

criminal activity. See U.S.S.G. § 2D1.1, comment. (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, constructive possession will.

See United States v. Hiveley, 61 F.3d 1358, 1363 (8th Cir. 1995) (per

curiam). The record demonstrates Kilgore constructively possessed the gun

by
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exercising dominion and control over the apartment, which was used in the

storage and distribution of cocaine. See United States v. Williams, 10

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

where gun found in briefcase hidden behind television in bedroom and

defendant found in kitchen with drugs). The district court did not clearly

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 the

defendant was "a minimal participant," i.e., one who was "plainly among the

least culpable of those involved in the conduct of a group," and a twolevel reduction if the defendant was "a minor participant," i.e., one who

was "less culpable than most other participants, but whose role could not

be described as minimal." 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 and

structure 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 she

was less culpable than Medina, who procured the cocaine, and Gutierrez, who

marketed the cocaine, but "[p]articipants in the distribution of drugs

often have distinct and independently significant roles." See United

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 simply

because he was less culpable 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 quantity

of cocaine. See United States v. Garvey, 905 F.2d 1144, 1146 (8th Cir.

1990) (per curiam). The district court did not clearly err in denying

Kilgore a 
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reduction, because she failed to prove she was entitled to one. See United

States v. Thompson, 60 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.