The HONORABLE DANIEL M. FRIEDMAN, United States Circuit Judge for *

the Federal Circuit, sitting by designation.

The HONORABLE E. RICHARD WEBBER, United States District Judge for 1

the Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3712

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United States of America, *

*

Plaintiff - Appellee, *

*

v. * Appeal from the United States

* District Court for the

Darrell Regans, also known as * Eastern District of Missouri.

Kevin Price, *

*

Defendant - Appellant. *

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Submitted: May 20, 1997

Filed: October 17, 1997

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Before BEAM, FRIEDMAN, and LOKEN, Circuit Judges. *

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LOKEN, Circuit Judge.

Darrell Regans appeals the 110-month sentence imposed after he pleaded guilty

to being a felon in possession of a firearm. Regans argues that the district court erred 1

in applying the four-level enhancement prescribed in U.S.S.G. § 2K2.1(b)(5) for
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possessing a firearm "in connection with another felony offense" solely because Regans

was in possession of a small quantity of heroin at the time of his arrest. We affirm.

The following facts are undisputed. Regans was a passenger in a car stopped for

a traffic violation. When Regans appeared to be concealing a weapon, the officers

conducted a pat-down search and discovered a .22 caliber pistol in his waistband.

They arrested Regans and brought him to the police station, where a further search

uncovered .29 grams of heroin. Regans said he possessed the heroin for personal use.

Regans pleaded guilty in state court to possession of heroin, a felony charge, and

was sentenced to two years probation. He then pleaded guilty to this federal charge of

being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). His Presentence

Investigation Report recommended a four-level enhancement under § 2K2.1(b)(5)

because carrying the firearm along with the heroin warranted a finding that the firearm

was possessed "in connection with" the drug felony. Regans objected to that

recommendation, arguing that he possessed only a small amount of heroin consistent

with personal use, and there was no evidence "that the possession of the weapon and

the possession of heroin are in connection with each other." The district court

disagreed, finding that Regans "did possess a firearm in connection with another felony

offense," and applied the four-level § 2K2.1(b)(5) enhancement. 

Regans's state court conviction was "another felony offense" for purposes of

§ 2K2.1(b)(5). See U.S.S.G. § 2K2.1, comment. (n.7). Thus, the only question is

whether he possessed the firearm "in connection with" that felony. The district court’s

finding regarding Regans’s purpose in possessing the firearm is reviewed for clear

error. See United States v. Kissinger, 986 F.2d 1244, 1246 (8th Cir. 1993). 

The Guidelines do not attempt to define the term "in connection with." Adopting

an ordinary meaning approach, most circuits have concluded that the phrase "should be

construed as equivalent to the 'in relation to' language of 18 U.S.C. § 924(c)(1)." 
Smith also construed the term "use" in § 924(c)(1), and its construction was

2

overruled in Bailey v. United States, 116 S. Ct. 501 (1995). The "use" issue decided

in Bailey is not present here because U.S.S.G. § 2K2.1(b)(5), like § 2D1.1(b)(1),

applies if the weapon was possessed with the requisite connection to another offense,

without regard to use. See United States v. Imes, 80 F.3d 1309, 1313-14 (9th Cir.),

vacated on other grounds, 91 F.3d 1210 (9th Cir. 1996).

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United States v. Spurgeon, 117 F.3d 641, 643-44 (2d Cir. 1997), and cases cited.

Equating the two is convenient because the Supreme Court has clarified the meaning of

"in relation to" in § 924(c)(1):

The phrase "in relation to" thus, at a minimum, clarifies that the firearm

must have some purpose or effect with respect to the drug trafficking

crime; its presence or involvement cannot be the result of accident or

coincidence. . . . Instead, the gun at least must "facilitat[e], or ha[ve] the

potential of facilitating," the drug trafficking offense.

Smith v. United States, 508 U.S. 223, 238 (1993).2

Regans argues the district court erred in finding the requisite connection between

the firearm and his drug felony because the firearm was merely "coincidental" to his

possession of heroin. We have frequently observed 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. For example, in United States v.

White, 81 F.3d 80, 82-83 (8th Cir. 1996), we affirmed an 18 U.S.C. § 924(c) conviction

because defendant carried a firearm while distributing crack cocaine. Similarly, we

affirmed a § 2K2.1(b)(5) enhancement in United States v. Johnson, 60 F.3d 422 (8th

Cir. 1995), a case in which a drug dealer was arrested with a firearm, crack cocaine, and

drug paraphernalia in his home. We commented that a "weapon's physical proximity

to narcotics may be sufficient to provide the nexus required between the weapon and

the drug charges." Id. at 423, quoting United States v. Gomez-
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Arrellano, 5 F.3d 464, 466-67 (10th Cir. 1993). Accord United States v. Burke, 91 F.3d

1052 (8th Cir. 1996), applying U.S.S.G. § 5C1.2. 

Regans notes that the defendants in Johnson and these other cases were drug

dealers and argues it is wrong to infer a connection between the firearm and the drug

felony when defendant carried a firearm along with only a small amount of drugs for

personal use. We disagree. This enhancement and other Guidelines provisions such as

§ 2D1.1(b)(1) are based in part on the increased risk of violence whenever guns are in

the possession of persons engaged in committing drug felonies. See United States v.

Condren, 18 F.3d 1190, 1195-98 (5th Cir. 1994), cert. denied, 513 U.S. 856 (1994).

When a firearm is carried during a drug offense, including a possession-for-use offense,

the drug felon has the ability to use the weapon in connection with his drug offense. Or,

as the Fifth Circuit put it in explaining Condren, “Theft is a close and ever present

partner of illegal drugs.” United States v. Fadipe, 43 F.3d 993, 994 (5th Cir. 1995).

The firearm may not be a "tool of the trade," because possession for use is not a "trade"

like drug trafficking. But when a drug user chooses to carry his illegal drugs out into

public with a firearm, there are many ways in which the weapon can facilitate the drug

offense and dangerously embolden the offender. Thus, a finding of the requisite

connection in this situation is consistent with the purpose of § 2K2.1(b)(5) and cannot

be clearly erroneous except, perhaps, in the exceptional circumstance recognized in

Application Note 3 to § 2D1.1 -- if "it is clearly improbable that the weapon was

connected with the offense." No such improbability is apparent from this record.

Accordingly, the judgment of the district court must be affirmed.

A true copy.

Attest:

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