Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-2543

UNITED STATES,

Appellee,

v.

MICHAEL WELLS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

 Torruella, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

Dana A. Curhan and Roger Witkin on brief for appellant.

Jennifer Hay Zacks, Assistant United States Attorney, and

Michael J. Sullivan, United States Attorney, on brief for appellee.

September 13, 2006
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Per Curiam. In June 2004, a jury convicted Michael Wells

of conspiracy and importation of a controlled substance. Wells had

orchestrated a scheme wherein he recruited women to fly from

Massachusetts to Jamaica, ingest pellets of cocaine, and then

return to the United States and expel the pellets for Wells to

sell. The district court sentenced Wells to a term of 169 months

in prison, to be followed by 96 months of supervised release. In

calculating this sentence, the court applied two enhancements to

Wells's offense level: a two-level enhancement under USSG §

2D1.1(b)(1) for possession of a dangerous weapon and a four-level

enhancement under § 3B1.1(a) for being the organizer or leader of

a criminal activity that involved at least five people or was

otherwise extensive. In this appeal, Wells argues that the

district court erred in applying these two enhancements.

The district court applied the dangerous-weapon

enhancement based on the testimony of two women whom Wells had sent

to Jamaica to procure cocaine. The women testified that, while in

Wells's apartment, they had seen Wells remove a handgun from his

pants and place it under a plant, near the refrigerator where Wells

stored cocaine. One of the women asked Wells why he had the gun,

and he responded that it was for his protection. At the sentencing

hearing, Wells protested that the gun could have been a replica,

but the court declared itself satisfied that the two women

correctly identified the gun as an actual weapon. It also
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concluded that Wells possessed the weapon in connection with the

offense conduct, that is, the cocaine conspiracy.

This court reviews factual findings supporting a district

court's imposition of a sentence under the Sentencing Guidelines

for clear error. United States v. Meada, 408 F.3d 14, 24 (1st Cir.

2005). We find no such error in the district court's conclusion

that Wells possessed a functioning firearm rather than a replica.

The court explicitly stated that it found the two women to be

generally credible witnesses. The mere factual possibility that

the gun Wells concealed in the plant was a replica does not render

the court's finding clearly erroneous, especially since that

finding need be supported by only a preponderance of the evidence.

See United States v. Holliday, 2006 U.S. App. LEXIS 19431 (1st Cir.

Aug. 2, 2006). Wells also contends that the firearm, even if real,

was not sufficiently connected with his criminal offense to warrant

application of the two-level enhancement. Application Note 3 to §

2D1.1 indicates that the dangerous-weapon enhancement should be

applied "if the weapon was present, unless it is clearly improbable

that the weapon was connected with the offense." § 2D1.1 cmt. n.3.

This means that the defendant must have "possessed the weapon

during the currency of the offense, not necessarily that he

actually used it in perpetrating the crime or that he intended to

do so." United States v. McDonald, 121 F.3d 7, 10 (1st Cir. 1997).

Here, Wells kept a handgun in his apartment, hidden in a plant pot
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very near to his stash of cocaine, and he told his co-conspirators

that the weapon was for his protection. The district court did not

clearly err in deeming the dangerous-weapon enhancement applicable.

Wells also challenges the district court's application of

a four-level enhancement under § 3B1.1(a), which calls for such an

increase "if the defendant was an organizer or leader of a criminal

activity that involved five or more participants or was otherwise

extensive." On appeal, Wells argues that the enhancement is

inappropriate because the relevant criminal activity involved only

four people. Before the district court, however, Wells did not

raise this argument. We therefore review the objection for plain

error. United States v. Connolly, 341 F.3d 16, 31 (1st Cir. 2003).

Our review of the facts leaves little doubt that the cocaine

importation scheme involved at least five people: Wells himself;

the two women who served as smugglers, Leeann Leanna and Jennifer

Chicklis; a woman named Pauletta who picked up Leanna and Chicklis

in Jamaica and provided them with cocaine; and an unnamed man who

drove Leanna to the airport in Boston so she could fly to Jamaica.

The district court also found the cocaine conspiracy "otherwise

extensive" since it involved the international smuggling of

contraband. We see no error, plain or otherwise, in these

conclusions.

The defendant's sentence is affirmed.