1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-2136

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa.

Thomas Michael Fisher, *

* [UNPUBLISHED]

Appellant. *

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Submitted: October 18, 2010

Filed: May 4, 2011

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Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Thomas Fisher pleaded guilty to one count of manufacturing and attempting to

manufacture methamphetamine after having two felony drug convictions, in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846, and 851. The district court1

 sentenced

him to 188 months' imprisonment. On appeal, Fisher argues that the district court

erred in applying a two-level sentencing enhancement for possessing a dangerous

weapon in connection with a drug offense, pursuant to U.S.S.G. § 2D1.1. For the

following reasons, we affirm.
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I. Background

On November 19, 2008, deputies from the Linn County Sheriff's Office stopped

Fisher's truck after receiving a report that individuals in that truck had been tampering

with an anhydrous ammonia tank in rural Linn County, Iowa. The deputies later

determined that Fisher, the driver of the truck, and his passengers had attempted to

steal anhydrous ammonia for use in manufacturing methamphetamine. After taking

Fisher and the passengers into custody, the deputies searched Fisher's truck and found,

among other items, two samurai swords (each one sheathed and measuring between

three and four feet in length) in the truck's backseat, along with several items

consistent with manufacturing methamphetamine.

On February 10, 2009, officers from the Cedar Rapids Police Department

executed a search warrant at Fisher's residence and found an "active

methamphetamine laboratory." Fisher admitted to manufacturing and selling

methamphetamine. On April 27, 2009, officers from the Cedar Rapids Police

Department executed a search warrant at an apartment that Fisher rented and found

another "active methamphetamine laboratory"; Fisher was not present during the

search.

As a result of these incidents, Fisher pleaded guilty to one count of

manufacturing and attempting to manufacture methamphetamine after having two

felony drug convictions. The presentence investigation report (PSR) calculated

Fisher's base offense level to be 36 based on the drug quantity attributable to him. The

PSR further recommended a two-level enhancement, pursuant to U.S.S.G.

§ 2D1.1(b)(1), for possessing a dangerous weapon—the two samurai swords—in the

backseat of his truck during the attempted theft of anhydrous ammonia. In addition,

the PSR recommended a three-level downward adjustment for acceptance of

responsibility. This adjusted offense level of 35, when combined with a criminal
2

At the sentencing hearing, Fisher's counsel stated that the Cedar Rapids police

found "over 70 knives" during a "raid on the defendant's house in February of 2009."

He referred to them as part of Fisher's "collection." The PSR did not mention these

knives among the items recovered during the February 10, 2009 search; they were not

introduced as evidence at the hearing; and they did not serve as a basis for any

enhancement.

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history category of IV, produced an advisory Guidelines sentencing range of 235 to

293 months.

At sentencing, Fisher agreed to the PSR's base offense level of 36 but objected

to the two-level dangerous weapon enhancement. He did not dispute that he possessed

the swords, but he asserted that he acquired them shortly before November 19, 2008,

only as a part of his knife collection.2

 Thus, he argued that the government had not

met its burden to show that it was not "clearly improbable that the weapon was

connected to the offense." The district court overruled his objection to the

enhancement, stating:

The Court makes the finding that it is not clearly improbable that

the defendant's samurai sword possession was connected with his

manufacturing and attempted manufacture of methamphetamine. It's very

unusual to drive around with a truck that has manufacturing

paraphernalia in it with samurai swords. None of the other knives that he

was collecting were in the truck. They were at the house. And clearly,

there's—I mean, you just—nobody drives with those in their truck,

unless they're going to a show or something like that. You don't keep

your collection in your truck, especially when the rest of your knives are

at your house.

And in terms of the timing, they were in the truck while Mr. Fisher

and his pals were attempting to steal anhydrous ammonia to make

methamphetamine. It's not uncommon for meth manufacturers to have

weapons to protect themselves and their product, and so I don't find that
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it's clearly improbable that the samurai sword possession was connected

with his offense and relevant conduct . . . .

In addition to applying the two-level dangerous weapon enhancement, the

district court granted the recommended three-level reduction for acceptance of

responsibility. Finally, the district court granted the government's motion for a

two-level downward departure for providing substantial assistance to the government,

pursuant to U.S.S.G. § 5K1.1.

Finally, the district court noted that it would have sentenced Fisher to the same

term of imprisonment regardless of whether the two-level dangerous weapon

enhancement should apply. Not accounting for the two-level substantial assistance

departure, the court stated:

First of all, 235 [months] would have been the—the overlap

sentence for the offense. Had I not scored the swords, he would have

been a 33/4 [offense level/criminal history category]. And had—and

scoring of the swords, he was a 35/4. So the Court would have sentenced

him at 235 months in any event, which is the high end of 33/4 and the

low end of 35/4—the high end of 33/4 and the low end of 35/4.

Consistent with this statement and after accounting for the two-level substantial

assistance departure, the district court sentenced Fisher to 188 months, which was the

point where the two Guidelines ranges—with and without the dangerous weapons

enhancement—overlapped.

II. Discussion

On appeal, Fisher argues that the district court clearly erred in finding that it

was not clearly improbable that the samurai swords were connected to his drug

offense, and, thus, he contends that the court erroneously applied the sentencing

enhancement under U.S.S.G. § 2D1.1(b)(1). Fisher agrees that he possessed the
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swords and does not dispute that these samurai swords can be considered "dangerous

weapons." Instead, he argues that the government failed to produce evidence that they

were connected to his methamphetamine manufacturing activities (e.g., by

"brandish[ing]" the swords or having them "in [his] hands during any

methamphetamine-related activity"). Further, he argues that he was merely a knife

collector and had obtained the swords shortly before November 19, 2008, for his

collection.

We review the district court's interpretation of the Guidelines de novo and its

factual findings for clear error. United States v. Vickers, 528 F.3d 1116, 1120 (8th Cir.

2008). A factual finding that a weapon was connected to the drug offense will only be

reversed "if the entire record definitely and firmly establishes that a mistake has been

made." United States v. Anderson, 618 F.3d 873, 879 (8th Cir. 2010).

The advisory Sentencing Guidelines provide for a two-level enhancement for

drug offenses when "a dangerous weapon (including a firearm) was possessed."

U.S.S.G. § 2D1.1(b)(1). Application Note 3 to this enhancement states that "[t]he

adjustment should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense." The government bears

the burden of proving that an enhancement should apply to the defendant's sentence.

United States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008). Thus, in the case of

§ 2D1.1(b)(1), "the government must prove two things—(1) the [weapon] was

possessed and (2) it was not clearly improbable that the weapon was connected to the

drug offense." Anderson, 618 F.3d at 880. Here, Fisher does not dispute that he

possessed the samurai swords. He argues only that the district court clearly erred in

finding that "it was not clearly improbable that the weapon was connected" to his

methamphetamine manufacturing offense.

Although the government must prove that it was not clearly improbable that the

weapon was connected to the drug activity, we have recognized that "[t]his Guidelines
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Fisher did not object to the facts contained in the PSR describing the

November 19, 2008 incident when the samurai swords were found, and thus, these

facts can be accepted as true for sentencing purposes. See United States v. Davis, 583

F.3d 1081, 1095 (8th Cir. 2009).

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enhancement creates a very low bar for the government to hurdle." Id. at 882. For

example, we have long held that the government can satisfy its burden by

"establish[ing] that 'a temporal and spacial relation existed between the weapon, the

drug trafficking activity, and the defendant.'" United States v. Burling, 420 F.3d 745,

750 (8th Cir. 2005) (quoting United States v. Atkins, 250 F.3d 1203, 1214 (8th Cir.

2001)); see also United States v. Payne, 81 F.3d 759, 763 (8th Cir. 1996) (applying

the same test). The government does not have to produce evidence showing that the

defendant "used or even touched a weapon." United States v. Fladten, 230 F.3d 1083,

1086 (8th Cir. 2000) (per curiam). Instead, "[e]vidence that the weapon was in the

same location as drugs or drug paraphernalia usually suffices." Id.

In a factually similar case, we upheld the district court's decision to apply an

enhancement under § 2D1.1(b)(1) when the defendant had a machete in the vehicle

that he used to transport materials for manufacturing methamphetamine. Burling, 420

F.3d at 750. The weapon was "partially hidden between the seat" and "within reaching

distance from the driver's seat." Id. Although the defendant only disputed whether his

machete was a "dangerous weapon," we found no clear error because "the machete

serves a dual purpose—a weapon, or a harvesting tool." Id. Under those

circumstances, we noted that "it is not clearly improbable that the machete was

connected to [the defendant's] attempt to manufacture methamphetamine." Id.

The district court did not clearly err by finding that it was not clearly

improbable that the samurai swords were connected to Fisher's methamphetamine

manufacturing activity. The PSR3

 and the government's exhibits at the sentencing

hearing showed that Fisher had the samurai swords in the backseat of his truck on

November 19, 2008, when Fisher attempted to steal anhydrous ammonia in order to
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manufacture methamphetamine. As in Burling, Fisher could have easily accessed the

swords. Moreover, several other items used to manufacture methamphetamine were

located in Fisher's truck along with the swords. Thus, Fisher, the swords, and the

drug-related items and activities were very closely related in space and time to one

another. The court did not have to find that Fisher ever "brandished" or otherwise used

the swords. In addition, as in Burling, the district court discounted Fisher's alternative

explanation for the swords' presence, stating that, although Fisher collected knives,

he did not carry his knife collection in his truck, especially while attempting to steal

materials to make methamphetamine. Accordingly, we conclude that the district court

correctly found that it was not clearly improbable that the swords were connected to

Fisher's methamphetamine manufacturing activity. 

Even if Fisher could show that the district court clearly erred, this error would

be harmless. Errors in the application of the Guidelines do not require a remand for

resentencing when the error is harmless. United States v. Johnston, 533 F.3d 972, 978

(8th Cir. 2008). "Incorrect application of the Guidelines is harmless error where the

district court specifies the resolution of a particular issue did not affect the ultimate

determination of a sentence." United States v. Straw, 616 F.3d 737, 742 (8th Cir.

2010). For example, an error might be harmless "where the resulting sentence lies in

the overlap between the correct and incorrect guidelines range." Johnston, 533 F.3d

at 978 (quotation and citation omitted). Under those circumstances, however, "to

support a finding of harmless error, the record clearly must show not only that the

district court intended to provide an alternative sentence, but also that the alternative

sentence is based on an identifiable, correctly calculated guidelines range." Id.

(quotation and citation omitted).

In the present case, the district court sentenced Fisher to 188 months'

imprisonment, the point at which the Guidelines ranges with and without the

dangerous weapon enhancement overlapped. The transcript from the sentencing
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hearing shows that the district court would have given Fisher the same sentence

whether it applied the enhancement. The court stated:

First of all, 235 [months] would have been the—the overlap

sentence for the offense. Had I not scored the swords, he would have

been a 33/4 [offense level/criminal history category]. And had—and

scoring of the swords, he was a 35/4. So the Court would have sentenced

him at 235 months in any event, which is the high end of 33/4 and the

low end of 35/4—the high end of 33/4 and the low end of 35/4.

Although the ranges described in this statement did not account for the two-level

downward departure for providing substantial assistance, the district court correctly

calculated both Guidelines ranges. Before applying the § 5K1.1departure, the range

would have been 188 to 235 months without the dangerous weapon enhancement and

235 to 293 months with the enhancement. After applying the departure, the range

would have been 151 to 188 months without the dangerous weapon enhancement and

188 to 235 months with the enhancement. The district court sentenced Fisher to 188

months, and the record indicates that the court would have given this sentence with

or without the dangerous weapon enhancement. Thus, even if Fisher could show error

in applying the enhancement, such error would be harmless.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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