* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 4 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JASON HALEY, Defendant-Appellant. No. 96-1109 No. 96-1111 (D.C. No. 95-CR-34-S) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and KELLY , Circuit Judges.

Defendant-Appellant Jason Haley (“Haley”) was convi cted in federal district court of aiding and abetting the distribut ion of methamphetamine, in violation of 18 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; using and carrying a firearm in relation to a drug traffickin g offense, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a c onvicted felon, in violation of 18 U.S.C. § 922(g)(1). Haley’s base offense level for the aiding and abetting1 Haley received a concurrent sentence for possessio n of a firearm by a

convicted felon. - 2 - conviction was calculated at 18. Based on this off ense level and his criminal history category the district court sentenced Haleyto 71 months imprisonment. 1 In addition, for his § 924(c) conviction Haley rece ived an additional consecutive 60-month sentence. In this appeal Haley challenges the sufficiency of the evidence before the jury that he used and carried a firearm during and in relation to the drug trafficking offense for which he was convicted. H aley also challenges the district court’s calculation of the quantity of dru gs involved in its sentencing determination. We affirm both Haley’s conviction a nd sentence.
Background Haley’s arrest, indictment and conviction stem froma single encounter involving Haley, cooperating co-defendant Russell C oleman (“Coleman”), with whom Haley lived at the times in question, and unde rcover ATF agent Scot Thomasson (“Thomasson”). On November 30, 1994, as part of his ongoing investigation of a suspected methamphetamine / ille gal weapons ring operating out of Colorado Springs, Colorado, Thomasson visite d Coleman’s apartment to purchase some methamphetamine. Thomasson purchased methamphetamine from- 3 -

Coleman but was told by Coleman that he would have to come back if he wanted to buy more, as Coleman was expecting to receive ad ditional supplies later that day. Thomasson returned to Coleman’s apartment later that evening. This time, because Coleman’s room was being used by co-defendant James Maass to sell methamphetamine, Coleman directed Thomasson into Ha ley’s room. Upon entering Haley’s room, Thomasson noticed two handgu ns sitting on a coffee table, along with a small scale and some plastic bags. Co leman told Thomasson that the weapons belonged to Haley, and Coleman introduced H aley to Thomasson as Coleman’s “partner.” Haley volunteered to assist t he transaction by measuring out the drugs on a scale, and Coleman accepted his assistance. Thomasson, concerned for his safety, picked up both guns and u nloaded them, placing the ammunition well away from the guns on a separate ta ble. Haley then retrieved the guns. He reloaded one of the guns and placed it on a shelf in his closet. Haley loaded and “racked” the other gun, a semi-automatic firearm, put it on his person, and kept it there throughout the remainder of the t ransaction. When law enforcement officials began arresting ring members early in 1995, Haley was arrested and indicted with conspira cy to distribute and possession with intent to distribute 100 grams or m ore of methamphetamine; aiding and abetting the distribution of methampheta mine; using and carrying a- 4 -

firearm in relation to a drug trafficking offense; and possession of a firearm by a felon. A jury trial was held. Coleman and one oth er co-defendant pled guilty and testified against the remaining co-defendants at tr ial. Haley was found innocent of the conspiracy charge but guilty of all remainin g charges.

Discussion 1. Sufficiency of “used and carried” evidence Haley claims that there was insufficient evidence t o support his conviction under 18 U.S.C. § 924(c) of using or carrying a fir earm during and in relation to a drug trafficking crime. A claim of insufficiency of the evidence presents a “high hurdle” to the criminal defendant; “in reviewing th e sufficiency of the evidence to support a jury verdict, this court must review the record de novo and ask only whether, taking the evidence -- both direct and cir cumstantial -- in the light most favorable to the government, a reasonable jury coul d find the defendant guilty beyond a reasonable doubt.” United States v. Voss , 82 F.3d 1521, 1524-25 (10th Cir. 1996). Under 18 U.S.C. § 924(c) it is a crime for any pers on to use or carry a firearm “during and in relation to” any drug traffi cking crime. This court has held that when reviewing § 924(c) convictions for the use or carrying of a firearm, we may affirm if the evidence is sufficien t to support conviction under- 5 -

either the “use” or the “carry” prongs of the statu te. See United States v. Richardson , 86 F.3d 1537, 1546-47 (10th Cir. 1996). A firearm is “used” in a drug transaction if the defendant “actively employe d” it, for example by “brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire, a firearm.” Bailey v. United St ates , 116 S. Ct. 501, 508 (1995); see also Richardson , 86 F.3d at 1547. A firearm is “carried” by a def endant during a drug transaction if the defendant exercise s “dominion and control” over the weapon and transports or moves it. See Richardson , 86 F.3d at 1548. Finally, in order to use or carry a firearm “during and in r elation to” a drug trafficking offense, the defendant must have intended that the firearm be available for use during the transaction, and it must be shown that the weapon played an “integral role in the drug offense.” Id. ; see also United States v. Lampley , _F.3d_, 1997 WL 644459, *7 (10th Cir. Oct. 20, 1997) (noting that the government must establish a “nexus” between the weapon and the unde rlying offense). The evidence that Haley both used and carried the w eapon during and in relation to the transaction for which he was convic ted is overwhelming. According to the record, not only did Haley pick up a semi-automatic weapon, reload it, and carry it on his person, he also “rac ked” the semi-automatic weapon, that is, drew back the spring-loading mechanism on top of the barrel, which had the effect of chambering a bullet. Taking the evid ence in the light most favorable- 6 -

to the government, Haley’s actions easily qualify as “brandishing” or “displaying” the weapon. Furthermore, Haley did no t shelve the semi-automatic or otherwise put it away, but rather he placed it o n his person and kept it there for the duration of the deal. This action clearly fits the legal definition of “carrying” a firearm. As for the “during and in relation to” prong of § 9 24(c), this court has held that “‘the evident purpose of section 924(c) was to impose more severe sanctions where firearms facilitated, or had the potential of facilitating, the commission of’ a drug transaction.” Richardson , 86 F.3d at 1548 (quoting United States v. Sullivan , 919 F.2d 1403, 1432 (10th Cir. 1990) (further cit ation omitted). On appellate review, we may “presume a nexus between afirearm and a drug trafficking offense when an individual with ready a ccess to a firearm is involved in such offense . . . . However, a defendant can o vercome this presumption by presenting evidence that the weapon was present forreasons other than facilitating the drug transaction.” Id. (citations and internal quotations omitted). Haley argues that he did not use a firearm during a nd in relation to the transaction between Coleman and Thomasson, because that transaction just happened to occur in his room, due to the temporaryunavailability of Coleman’s room. Haley contends that he did not place the gun s in the room in anticipation of the deal, and indeed had no knowledge that a dea l was to occur in his room- 7 -

until Coleman called him in. He had no stake in th e outcome of the deal, and merely made himself part of the transaction by volu nteering to help weigh the drugs. Because he had no intent to use the weapons and because of his peripheral involvement in the deal, Haley claims that the evid ence shows that the weapons were present “for a reason other than facilitating a drug transaction.” Here, Haley took one of the guns that Thomasson hadunloaded, reloaded it, racked it, placed it on his person, and stayed in t he room for the remainder of the transaction. Haley offers no evidence that there wa s any reason for him to reload, rack and carry the semi-automatic for any purpose o ther than to facilitate the transaction between Coleman and Thomasson. Thus, H aley fails to overcome the presumed nexus between the firearm and the crime.
2. Calculation of the quantity of methamphetamine In applying the Sentencing Guidelines, the districtcourt's factual determinations of drug quantities are reviewed unde r the clearly erroneous standard. See United States v. Richards , 27 F.3d 465, 468 (10th Cir.1994). “In determining the quantity of drugs involved, the gov ernment is not limited to the amount ... for which a defendant was convicted, and a defendant is responsible for ‘all quantities ... with which he was directly invo lved.’” United States v. Sloan , 65 F.3d 861, 865 (10th Cir.1995) (quoting U.S.S.G. § 1B1.3, cmt., note 2)) The Government has the burden of proving the quantity b y a preponderance of the- 8 -

evidence. See United States v. Cody , 7 F.3d 1523, 1527 (10th Cir.1993). In making its calculation “[a] sentencing court may co nsider any reliable source of information that has some minimum indicia of reliab ility." Id. The district court calculated Haley’s base offense level to be 18, as established under U.S.S.G. § 2D1.1(c)(11) (traffick ing involving 20 to 40 grams of methamphetamine). Haley admits that the 6.9 gra ms purchased by Thomasson during the transaction that Haley assisted were pro perly used to calculate his sentence, but argues that it was error for the dist rict court to consider as relevant an additional 21 uncharged grams of methamphetamine that co-defendant Coleman testified he fronted to Haley to sell over a two-week period prior to the November 30 transaction with Thomasson for which Ha ley was convicted. Haley does not dispute that he received the 21 grams of m ethamphetamine, but insists that the Government failed to prove that he ever in tended to sell, or that he did in fact sell, the 21 grams of methamphetamine in quest ion. Haley claims that because he could only have been charged for possess ion, not aiding and abetting distribution, of those 21 grams, that quantity of m ethamphetamine cannot be considered relevant conduct under the Guidelines. See U.S.S.G. § 1B1.3(a)(2); § 3D1.2(d); United States v. Taylor , 97 F.3d 1360, 1363 (10th Cir. 1996). Haley does not assert that he in fact used all 21 g rams personally, nor does he offer any corroborating evidence of what became of the 21 grams of- 9 -

methamphetamine at issue. Instead, Haley claims t hat the Government failed to meet its burden of proof that he obtained the 21 gr ams during the two-week period prior to November 30 for the purpose of distributing it. However, the Government presented a plethora of evidence that he did. Coleman testified that during that period he repeatedly entrusted Haley wi th quantities of methamphetamine in small retail-sized packages to s ell for Coleman. Coleman’s drug ledgers substantiate the amounts fronted to Ha ley during that period, as well as showing that Haley made partial payments on the drugs fronted by Coleman. Haley told others that was able and willing to sell methamphetamine. Brenda Baker, Coleman’s girlfriend and fellow methamphetam ine addict, testified that Haley might use between one-quarter to one-half a g ram of methamphetamine per day. Thus, he might have consumed somewhere betwee n four and seven grams within a two-week period. Given that Haley offered no proof of what happened to the 21 grams of methamphetamine he was fronted, the Government more than met its burden of providing the court with a prepon derance of evidence that Haley obtained the additional 21 grams of methamphe tamine from Coleman for the purpose of selling it. The district court foun d that Haley generally received methamphetamine from Coleman for the purpose of res elling it. The court did not err in considering this amount of methamphetamine t o be relevant in determining Haley’s base offense level.- 10 -

Conclusion For the reasons stated above Haley’s conviction und er 18 U.S.C. § 924(c) and the district court’s calculation of Haley’s bas e offense level are AFFIRMED.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge