1

The Honorable Scott O. Wright, United States District Judge for the Western

District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-2384

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri 

Gary P. Jones, *

*

Appellant. *

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Submitted: November 6, 2002

Filed: May 1, 2003 

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Before McMILLIAN, MURPHY, and MELLOY, Circuit Judges.

___________

McMILLIAN, Circuit Judge.

Gary P. Jones (“defendant”) appeals from a final judgment entered in the

United States District Court for the Western District of Missouri1

 sentencing him to

92 months of imprisonment after pleading guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). United States v. Jones,

No. 01-5049-01-CR W.D. Mo. May 23, 2002) (judgment). For reversal, defendant

argues that the district court erred by applying the cross-referencing provision of
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U.S.S.G. § 2K2.1(c)(1) for possessing the firearms in connection with the commission

of a drug trafficking offense. For the reasons discussed below, we affirm the

judgment of the district court.

Jurisdiction in the district court was proper based on 18 U.S.C. § 3231.

Jurisdiction in this Court is proper based on 18 U.S.C. § 2742(a). The notice of

appeal was timely filed pursuant to Fed. R. App. P. 4(b).

BACKGROUND

The facts in this case are not in dispute. On June 21, 2001, the Joplin,

Missouri, Police Department received a Crimestoppers Hotline tip which advised

police that defendant was in possession of a large quantity of cocaine base and a

shotgun. The caller stated that defendant was staying at a Motel 6 and provided a

description of defendant’s car. Police officers were dispatched to the motel and found

the car described by the caller. One of the officers used a K-9 dog to conduct a

random search outside some of the ground floor rooms, and the dog alerted to

defendant’s room. Shortly thereafter, a woman, Evelyn Reeves (“Reeves”), and two

small children exited the room and entered the car. At the time, Reeves was carrying

several pieces of luggage, including a duffle bag, which she placed in the trunk of the

car. Defendant then left the room, entered the car, and drove away. 

Based on their knowledge that defendant’s licence had been revoked, the police

officers executed a traffic stop, arrested defendant, and searched his car. Reeves told

the officers that defendant tried to give her a “baggie” containing cocaine base prior

to stopping for police. Reeves refused, so defendant placed the “baggie” under the

drivers seat. The officers searched under the seat and found a “baggie” containing

30.5 grams of cocaine base. Inside the trunk of the car, the officers found the duffle

bag they had earlier seen Reeves bring out from the motel room. Inside the duffle

bag, the officers found another “baggie” with 46.5 grams of marijuana, mail
2

Under the plea agreement, the government agreed to dismiss the count against

defendant for possession of cocaine base with intent to distribute in violation of 21

U.S.C. § 841(a)(1) because defendant pled guilty to related state charges in the

Circuit Court of Jasper County, Missouri. 

3

The general provisions of 2K2.1 would have yielded an offense level of 24

prior to any acceptance of responsibility. 

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addressed to defendant, a loaded Rhom .38 caliber revolver, a .45 caliber Interarms

Star Pistol, and additional ammunition. 

On January 24, 2002, defendant pleaded guilty to being a felon in possession

of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924 (a)(2).2

 The district court

ordered a Presentence Investigation Report (“PSIR”), which concluded that the crossreferencing provision in U.S.S.G. § 2K2.1(c)(1) should apply because defendant

possessed the firearms in connection with his possession with intent to distribute

cocaine base. § 2K2.1(c)(1) provides in relevant part:

(1) If the defendant used or possessed any firearm or ammunition in

connection with the commission or attempted commission of

another offense, or possessed or transferred a firearm or

ammunition with knowledge or intent that it would be used or

possessed in connection with another offense, apply –

(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect

to that other offense, if the resulting offense level is greater

than that determined above [the base offense level as

determined under U.S.S.G. § 2K2.1(a) and (b)].[3

] 

U.S.S.G. § 2X1.1(a) states that the base offense level should be “[t]he base offense

level from the guideline for the substantive offense, plus any adjustments from such

guideline for any intended offense conduct that can be established with reasonable

certainty.” Therefore, the PSIR applied the provisions of U.S.S.G. § 2D1.1, covering
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drug trafficking offenses. Based on the quantities of cocaine base and marijuana

found in the car, plus a two-level enhancement for possession of a dangerous weapon,

the PSIR calculated the defendant’s base offense level at 30, but recommended a

three-level reduction for acceptance of responsibility, setting defendant’s total offense

level at 27. 

Defendant filed a written objection to the PSIR’s proposed application of the

cross-referencing provision in § 2K2.1(c)(1) on the basis that there was no evidence

to show that he possessed the firearms in connection with the commission of another

offense. The district court held a sentencing hearing on May 2, 2002. Overruling

defendant’s objection, the district court held that the cross-referencing provision of

§ 2K2.1(c)(1) applied and that defendant’s base offense level was 30, but granted the

three-level reduction for acceptance of responsibility, reducing defendant’s total

offense level to 27. Based on defendant’s Criminal History Category of III, the

district court found that the applicable guideline sentencing range was 87 to 100

months. The district court sentenced defendant to 92 months imprisonment, three

years of supervised release, and a $100 special assessment. This appeal followed.

DISCUSSION

We review the district court’s findings regarding the purpose underlying

defendant’s possession of the firearms for clear error. United States v. Rohwedder,

243 F.3d 423, 428 (8th Cir. 2001) (citing United States v. Regans, 125 F.3d 685, 686

(8th Cir. 1997)). 

The only issue on appeal is whether the district court erred in applying the

cross-reference provision of § 2K2.1(c)(1). Defendant argues that the district court

erred in finding that the firearms found in the trunk of his car were possessed in

connection with the possession with the intent to distribute cocaine base. He

maintains that, in response to his objections, the government was required to present
4

Defendant argued for the first time during oral argument that he is a double

amputee missing both of his legs near the knee and could not therefore quickly or

easily access the firearms in the trunk. Nothing in the record, however, indicates how

severely defendant’s disability limits his mobility.

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Defendant claims Rohwedder is distinguishable because, in that case, both the

firearms and a majority of the drugs, methamphetamine, were locked together in a

cabinet, which the court found negated Rohwedder’s claims of spatial isolation. See

United States v. Rohwedder, 243 F.3d 423, 428 (8th Cir. 2001). We note, however,

that defendant’s firearms were found in his car along with a distributable quantity of

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evidence at the sentencing hearing and the district court was required to make specific

factual findings as to whether the firearm had “some purpose or effect with respect

to the drug trafficking crime.” United States v. Martinez, 258 F.3d 760, 762 (8th Cir.

2001) (citing Regans, 125 F.3d at 686). Defendant notes that the cocaine that was the

subject of the enhancement was found under the driver’s seat of the car, isolated from

the firearms, which were inside the duffel bag in the locked trunk.4

 Because the

firearms were spatially isolated from the cocaine at the time of his arrest and not

easily accessible, defendant maintains there was insufficient evidence to prove that

the firearms were meant to be used “in connection with” the drug possession offense.

See United States v. Stapleton, 268 F.3d 597, 597 (8th Cir. 2001) (holding that “[a]

specific objection to a statement in a [presentencing investigation report] triggers a

district court’s obligation to make a finding as to the factual dispute”). We disagree.

This court has previously determined that the “in connection with” phrase in

§ 2K2.1 means that “the firearm must have some purpose or effect with respect to the

drug trafficking crime [and] must ‘facilitate or have the potential of facilitating,’ the

drug trafficking offense.’” Martinez, 258 F.3d at 762 (quoting Regans, 125 F.3d at

686). This court has also held that “a firearm is a ‘tool of the trade’ for drug dealers;

therefore, a factfinder may infer a connection when defendant carried a firearm and

a distribution quantity of illegal drugs.” Regans, 125 F.3d at 686. Thus, a firearm’s

“close physical proximity to [a] significant quantity of drugs provides sufficient

nexus between the two to support an enhancement pursuant to [§ 2K2.1].”5

 United
cocaine base, which is sufficient to support a conclusion that the firearms had at least

the potential of facilitating the sale or distribution of drugs. See United States v.

Regans, 125 F.3d 685, 687 (8th Cir. 1997) (noting “when a drug user chooses to carry

his illegal drugs out into public with a firearm, there are many ways the weapon can

facilitate the drug offense and dangerously embolden the offender”).

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Defendant also filed a pro se motion under Fed. R. Crim. P. 11(e) arguing that

the relevant conduct enhancement for drug possession applied to his sentence

violated his plea agreement and that his sentence should be reduced accordingly. We

decline to address this motion at this time because it is not properly before this court.

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States v. Rohwedder, 243 F.3d 423, 428 (8th Cir. 2001). Based on defendant’s guilty

plea, it is undisputed that he possessed the firearms at the same time he was in

possession of a substantial quantity of cocaine base. The police found the firearms

and ammunition in the trunk of the same car where they found the cocaine base.

Thus, it was not “clearly improbable” that the firearms possessed by defendant

facilitated, or had the potential to facilitate, the drug trafficking offense. Regans, 125

F.3d at 686 (quoting U.S.S.G. § 2D1.1, cmt. n.3). We therefore affirm the district

court’s application of the cross-referencing provision of § 2K2.1(c)(1) to defendant’s

sentence. 

CONCLUSION

Accordingly, the judgment of the district court is affirmed.6

A true copy.

Attest:

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