1

The Honorable Dean Whipple, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 04-2999

___________

United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the

* Western District of Missouri

Carl Amburn, Jr., * 

* 

Appellant. *

___________

Submitted: January 14, 2005 

Filed: June 17, 2005 

___________

Before MURPHY, McMILLIAN and BYE, Circuit Judges.

___________

McMILLIAN, Circuit Judge.

Carl Amburn, Jr. (defendant), appeals from a final judgment entered in the

United States District Court1

 for the Western District of Missouri following his

conditional guilty plea to one count of being a felon in possession of a firearm.

Defendant was sentenced to 57 months imprisonment followed by three years of

supervised release. United States v. Amburn, No. 03-03047-01 (W. D. Mo. June 21,

2004) (judgment). For reversal, defendant argues that the district court erred in
2

The Honorable James C. England, United States Magistrate Judge for the

Western District of Missouri.

-2-

denying his motion to suppress and in determining his sentence under the United

States Sentencing Guidelines. For the reasons discussed below, we affirm the

judgment of the district court.

Jurisdiction

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

Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

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

Background

On April 16, 2003, defendant was indicted on one count of possession of a

firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The charge in

the indictment was based upon evidence that law enforcement officers had obtained

in a search of defendant’s home in Texas County, Missouri, on November 20, 2002.

Defendant moved to suppress the evidence, which included, among other things, a

.22 caliber pistol that had been found in his bedroom next to a spoon containing

methamphetamine residue.

Defendant’s motion to suppress was submitted to a United States magistrate

judge.2

 The magistrate judge held an evidentiary hearing on the motion. The

government’s witnesses included: Fred Stenger, an investigator with the South

Central Drug Task Force; Jimmy Willis, a methamphetamine investigator for the

Texas County Sheriff’s Department; and Dean Belshe, the Texas County Sheriff.

Witnesses for the defense included: Cassandra Tharp, defendant’s girlfriend; Pandee

Johnson, defendant’s sister-in-law; Lee Johnson, defendant’s brother; Lloyd Amburn,

defendant’s uncle; and Gerald Clinton, defendant’s neighbor. In addition, Mark
3

On cross-examination, Stenger acknowledged that there was a large diesel

truck parked across the street, which also could have been the source of the ether

smell. 

-3-

Loge, an investigator with the Federal Public Defender’s Office, testified for the

defense to identify several photographs taken in the vicinity of defendant’s house.

Following the evidentiary hearing, the magistrate judge issued a report in which he

summarized the evidence presented by the parties. United States v. Amburn, No. 03-

03047-01, slip op. at 2-10 (W. D. Mo. Sept. 8, 2003) (hereinafter “R&R”). 

As described by the magistrate judge, the government’s evidence supported the

following facts. On the night of November 19-20, 2002, investigators with the South

Central Drug Task Force were conducting surveillance of defendant’s residence based

on tips and complaints received about unusual traffic patterns and suspected drugrelated activity on the premises. While driving past the residence, which is set back

approximately 100 yards from the road, Investigator Stenger noticed an odor of ether.

Stenger is trained to recognize the smell of ether, which is used in the production of

methamphetamine.3

 Later that night, Stenger observed a “burn pile” in defendant’s

yard, which he believed might be an indication that defendant was destroying

evidence of a methamphetamine laboratory.

Meanwhile, officers had also been conducting surveillance at the residence of

Melvin Courtney, approximately one and a half miles from defendant’s house, based

on information that drug-related activity might also be occurring there. At about 3:00

a.m., officers in a marked patrol car observed near defendant’s house a vehicle that

earlier had been seen at Courtney’s house. The occupants of the vehicle were

believed to be Mark Bryson and Rhonda Lee. As the marked patrol car approached

the vehicle, it sped away across a field and through some fences. The patrol car

pursued, and the officers observed items being thrown from the vehicle. The pursuit

ended when the vehicle hit a tree and the occupants fled on foot. The officers did not

pursue them. In the area around the abandoned vehicle, the officers recovered a
-4-

loaded rifle with a scope and some gas masks. There was a strong odor of ether in

and around the vehicle. Identification belonging to Mark Bryson was found inside

the vehicle. 

In the early morning hours of November 20, 2002, officers went to Courtney’s

residence. Upon obtaining consent, the officers searched the premises and discovered

evidence of a methamphetamine laboratory. Courtney told the officers that Bryson

and Lee had been at his house during the afternoon of November 19th and had left at

approximately 5:00 p.m. after talking about going to defendant’s house to “cook a

batch.” Courtney confirmed that Bryson and Lee had left in the same vehicle that was

the subject of the earlier pursuit.

Stenger returned to defendant’s residence, where he encountered Sheriff

Belshe, who reported seeing a second fire on defendant’s property. In addition, the

officers received information that an individual arrested on November 19, 2002,

Grant Gabel, had admitted going to Courtney’s house earlier that day to buy drugs.

Gabel reportedly had told one of the officers that, while he was at Courtney’s house,

he was told to wait there and not to go to defendant’s house, where he assumed

methamphetamine was being produced.

The officers decided seek a warrant to search defendant’s residence. Officer

Stenger left to prepare the warrant application at the Texas County Sheriff’s Office.

In his supporting affidavit, he mentioned, among other things, the vehicle pursuit, the

fires observed on defendant’s property, and information received from Courtney,

Gabel, and other unnamed sources about defendant’s alleged involvement in

methamphetamine production. The application and supporting documents were

submitted to a judge, who issued a search warrant. Stenger received the warrant at

approximately 2:00 p.m. and executed it at defendant’s residence at approximately

2:30 p.m. on November 20, 2002.
-5-

Meanwhile, during the morning of November 20, 2002, officers learned that

Rhonda Lee, who had fled with Mark Bryson after the car chase, had gotten a ride to

defendant’s house. They also received a report that an individual holding a gun had

been seen on defendant’s porch. Belshe was concerned about possible violence or

destruction of evidence so he decided to secure the interior of defendant’s residence.

Belshe, accompanied by other officers, knocked on defendant’s door. Pandee

Johnson, defendant’s sister-in-law, answered the door. Defendant’s girlfriend,

Cassandra Tharp, was also there. Pandee Johnson asked the officers if they had a

search warrant. Although they did not have one, she let them in. Upon entering,

Belshe heard defendant’s voice from down the hall. Belshe found defendant in a

bathroom, holding some syringes and a black bag. Belshe ordered defendant out of

the bathroom but defendant refused, stating that he needed to use the bathroom.

Belshe responded that defendant could do so after he (Belshe) had searched the

bathroom. Belshe found in the tank of the toilet another black bag containing

syringes, plastic bags, and containers of a white powdery substance. Defendant was

placed under arrest for possession of methamphetamine and taken away. 

The officers conducted a protective sweep of the house. They remained with

Pandee Johnson and Cassandra Tharp while awaiting the arrival of the search

warrant. Due to the cold weather, they decided to wait inside the house. When the

officers asked the two women where defendant’s brother, Lee Johnson, was, the

women stated that he had left. 

Once Stenger arrived with the warrant, the home was searched. During the

search, officers found, among other things, evidence of methamphetamine use and

manufacturing, a firearm in defendant’s bedroom, and Lee Johnson hiding under a

bed in another room.

The witnesses for the defense gave a different account of the events of

November 19 and 20, 2002. According to the testimony of Pandee Johnson, when the

officers knocked on the door and she answered, she asked the officers four times to
-6-

see a search warrant. They told her that they did not need one. She then tried to close

the door, but the officers pushed it open. They entered the home, handcuffed her, and

placed her on the sofa, after which she wore the handcuffs for several minutes. They

began yelling for defendant and, upon finding him, arrested him and took him out of

the house. The officers then extensively searched the house for several hours before

Stenger arrived with the search warrant. Pandee Johnson, Cassandra Tharp, and Lee

Johnson each testified that the officers opened, rummaged through, and emptied

cabinets and drawers, and moved items around the house, prior to Stenger’s arrival

with the search warrant. Lee Johnson testified that he was hiding under a bed

throughout most of the search and that three officers looked under the bed where he

was hiding without actually seeing him; a fourth officer finally spotted him several

hours into their search. Defendant’s uncle, Lloyd Amburn, who lived near defendant,

testified that he went to see what was going on at defendant’s house after noticing

police cars there. Sheriff Belshe told him that they had arrested defendant and were

going to search the house. In addition, defendant’s neighbor, Gerald Clinton, testified

that, on the evening of November 19, 2002, he wanted to see if his truck would start

because it had not been driven for several days and it was a cold night. At

approximately 7:30 p.m., he sprayed starter fluid in his truck and let the engine run

for a period of time. Later that night, at around 9:00 or 10:00 p.m., he went over to

defendant’s house to talk with Lee Johnson, who was in the back yard burning leaves.

The magistrate judge found the government’s witnesses to be more credible

than defendant’s. Based upon the totality of the evidence and his credibility

assessments, the magistrate judge concluded that, prior to entering defendant’s home,

the officers had a reasonable belief that evidence therein might be destroyed. R&R

at 12. Regarding the extensiveness of the officers’ search of the premises, the

magistrate judge found that, except for the search of the bathroom, the officers did no

more than a protective sweep of the house prior to the issuance of the warrant.

Regarding the bathroom, the magistrate judge reasoned that Belshe’s search was

justified by exigent circumstances or search incident to arrest. Id. at 13. Finally, with

respect to Stenger’s affidavit in support of the search warrant application, the
4

Hereinafter the magistrate judge’s findings of fact and conclusions of law will

be attributed to the district court. 

-7-

magistrate judge concluded that Stenger did not make any deliberately or recklessly

false or misleading statements in the affidavit, and that the affidavit established

probable cause to search defendant’s residence for evidence of methamphetamine

production and drug trafficking. Id. at 14. Accordingly, the magistrate judge

recommended that defendant’s motion to suppress be denied. Id.

Upon independent review, the district court entered an order adopting the

magistrate judge’s findings of fact and conclusions of law and denying defendant’s

motion to suppress. Id. (Oct. 30, 2003) (district court order).4

 

Pursuant to a written plea agreement, defendant pled guilty to the one count in

the indictment, reserving his right to appeal the denial of his motion to suppress. In

addition, the plea agreement provided in part:

The defendant agrees not to appeal or otherwise challenge the

constitutionality or legality of the [United States] Sentencing

Guidelines. The defendant understands and acknowledges that his

sentence will be determined and imposed pursuant to those Sentencing

Guidelines. Defendant is aware that a sentence imposed under the

Sentencing Guidelines does not provide for parole. The defendant

agrees that this Court has jurisdiction and authority to impose any

sentence up to the statutory maximum established for the offense. The

parties expressly waive the right to appeal or collaterally attack by postconviction motion any sentencing issue, including the applicability of

certain U.S. Sentencing Guidelines provisions, which have been

addressed and agreed upon in this Plea Agreement, and which are set

forth in this plea agreement. Each party retains the right to appeal only
-8-

sentencing issues which have not been agreed upon or which have not

been specifically addressed in the Plea Agreement.

Upon receiving defendant’s guilty plea, the district court ordered the

preparation of a presentence investigation report (PSR). The PSR recommended a

total offense level of 21, which included a four-level increase under U.S.S.G.

§ 2K2.1(b)(5) (“If the defendant used or possessed any firearm . . . in connection with

another felony offense . . . increase by 4 levels.”). Defendant specifically objected

to the four-level increase on grounds that there was no evidence or legal basis to

establish that the firearm he possessed was possessed in connection with another

felony offense. At the sentencing hearing, the district court found that defendant had

possessed the pistol in connection with another felony offense, overruled defendant’s

objection, and applied the four-level increase under § 2K2.1(b)(5). See Sentencing

Transcript at 16-17. The district court calculated defendant’s total offense level as

21, and criminal history category IV, resulting in a sentencing range of 57 to 71

months. The district court sentenced defendant to 57 months in prison and three

years of supervised release.

Three days after defendant’s sentencing hearing, the Supreme Court issued its

decision in Blakely v. Washington, 124 S. Ct. 2531 (2004) (Blakely), holding the

State of Washington’s sentencing guidelines unconstitutional under the Sixth

Amendment. Defendant promptly filed a motion for reconsideration of his sentence

in light of Blakely. The district court denied the motion, and defendant appealed.

Discussion

Motion to suppress

In appealing the denial of his motion to suppress, defendant argues that the

district court erred in holding that (1) exigent circumstances justified the officers’

initial entry into his home, (2) the officers did not exceed the scope of a
-9-

constitutionally-permissible protective sweep prior to the issuance of the search

warrant, (3) the affidavit submitted in support of the search warrant application was

not deliberately or recklessly false or misleading, and (4) the search warrant was

supported by probable cause.

“We review the district court’s findings of historical facts for clear error, but

the ultimate determination of whether the facts as found constitute exigent

circumstances is reviewed de novo.” United States v. Kuenstler, 325 F.3d 1015, 1021

(8th Cir. 2003) (Kuenstler), cert. denied, 540 U.S. 1112 (2004). “The [exigent

circumstances] exception justifies immediate police action without obtaining a

warrant if lives are threatened, a suspect’s escape is imminent, or evidence is about

to be destroyed.” United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996). “The

analysis of whether this exception to the warrant requirement has been made out is

an objective one ‘focusing on what a reasonable, experienced police officer would

believe.’” Kuenstler, 325 F.3d at 1021 (quoting In re Sealed Case 96-3167, 153 F.3d

759, 766 (D.C. Cir. 1998)).

Defendant disputes the district court’s conclusion that the “officers reasonably

believed that there was a legitimate concern regarding the destruction of evidence that

justified their entry into defendant’s residence to secure it.” R&R at 12. Defendant

argues that, by the time the officers decided to enter defendant’s house without a

warrant on the morning of November 20, 2002, at least an hour or two had passed

since the second burn pile had been observed and, therefore, the officers could not

reasonably have believed that evidence was about to be destroyed. We disagree.

 The circumstances known to the officers at the time they decided to enter and

secure the residence included the following. At least two sources had indicated that

methamphetamine production would likely occur at defendant’s house on or about the

night of November 19-20, 2002. Two burn piles had been observed in defendant’s

yard within the previous twelve hours or so. An individual holding a firearm had

reportedly been seen on the porch of defendant’s house. Rhonda Lee, who had been
-10-

at Courtney’s house on November 19th, had gotten a ride to defendant’s house after

evading the police during a night-time car chase. 

We hold that, under the totality of the circumstances, it was reasonable for the

officers to believe that destruction of evidence was likely to occur and could be

prevented by entering and securing the premises. The district court did not err in

concluding that exigent circumstances justified the officers’ warrantless entry into

defendant’s home.

Defendant next argues that, even if the officers were justified in entering and

securing the premises, and in searching the bathroom, they exceeded the scope of

what was constitutionally permissible by conducting an extensive search of the entire

house prior to obtaining the search warrant. On this issue, the district court made the

following findings.

There was no credible evidence presented at the hearing to

support the theory that the officers’ actions exceeded the boundaries of

a protective sweep once they entered defendant’s residence. . . . Other

than the bare assertions of Pandee Johnson, Lee Johnson, and Cassie

Tharp, there was nothing introduced to support their allegations of a

widespread, extensive search of the entire residence. The officers in the

house denied that they searched, and there was testimony that they

would have been outside waiting on the warrant, but for the chilly

weather. They testified that the weapon and Mr. [Lee] Johnson were

found after the search warrant arrived. There was no testimony to

dispute this. Rather, the three occupants of the house testified about an

extensive, intrusive search of the entire residence. It is hard to find the

two women’s statements credible regarding what they claimed was

going on in the bathrooms, when they admitted to being in the living

room or on the porch the majority of the time. It is even more difficult

to believe that Mr. Johnson could have seen a widespread search from
-11-

under the bed. Additionally, the fact that he wasn’t even found for

several hours, by his own admission, would certainly belie the claims

that the officers searched extensively through the entire house.

R&R at 13. 

The district court’s determination of witness credibility is “virtually

unreviewable on appeal because it is ‘preeminently the job of the finder of fact.’”

United States v. Rayl, 270 F.3d 709, 713 (8th Cir. 2001) (quoting United States v.

E.R.B., 86 F.3d 129, 130 (8th Cir. 1996)). In light of the district court’s credibility

findings and the undisputed facts highlighted by the district court – for example, the

fact that Lee Johnson, who was hiding under a bed, was not found for several hours

– we hold that the district court did not clearly err in finding that the search was not

conducted until after the search warrant was issued.

Defendant challenges the validity of the search warrant on grounds that

Stenger’s affidavit contained deliberately or recklessly false or misleading statements

and omissions and that, absent these misstatements and omissions, there would not

have been probable cause to support the search warrant.

 

An affidavit in support of a search warrant violates the Fourth Amendment if

it contains “allegations of deliberate falsehood or of reckless disregard for the truth.”

Franks v. Delaware, 438 U.S. 154, 171 (1978) (Franks). There is, however, “a

presumption of validity with respect to the affidavit supporting the search warrant.”

Id. To prove a Franks violation, defendant must show: “(1) that a ‘false statement

knowingly and intentionally, or with reckless disregard for the truth, was included by

the affiant in the warrant affidavit,’ and (2) that ‘with the affidavit’s false material set

to one side, the affidavit’s remaining content is insufficient to establish probable

cause.’” United States v. Searcy, 181 F.3d 975, 980 (8th Cir. 1999) (Searcy) (quoting

Franks, 438 U.S. at 155-56). On the question of probable cause, we again review the

district court’s factual findings for clear error, and review conclusions of law de novo.
-12-

United States v. Newton, 259 F.3d 964, 966 (8th Cir. 2001). “We give substantial

deference to a magistrate[ judge]’s determination of probable cause and will not set

aside that determination ‘unless the issuing judge lacked a substantial basis for

concluding that probable cause existed.’” Searcy, 181 F.3d at 981 (quoting United

States v. Edmiston, 46 F.3d 786, 788 (8th Cir. 1995)). We consider the “totality of the

circumstances . . . in determining whether probable cause exists to support a search

warrant.” United States v. Hernandez Leon, 379 F.3d 1024, 1027 (8th Cir. 2004). 

Defendant asserts that Stenger’s affidavit was deliberately or recklessly false

or misleading because: (1) he alleged smelling ether coming from defendant’s house

without acknowledging that, at the time he smelled the odor, he was standing

approximately 100 yards from defendant’s house and there was also a diesel truck

nearby – a “more obvious” source of the ether smell; (2) he asserted that “several

sources” had indicated that methamphetamine production would be taking place at

defendant’s house, without acknowledging that there were only two such “sources”

and that these “sources” had no track record for reliability; (3) he failed to mention

that there were several other houses on Amburn Road; and (4) he failed to

acknowledge that there was no link between defendant’s residence and the physical

evidence recovered from the abandoned vehicle previously occupied by Mark Bryson

and Rhonda Lee. Brief for Appellant at 34-35. Defendant concludes: “Simply put,

the affidavit is based on nothing more than burning garbage, an easily explained

source of ether, the testimony of two persons with no track record of believability,

and an irrelevant vehicle chase. This does not meet the requirements of probable

cause.” Id. at 35. 

In addressing these issues, the district court rendered the following findings of

fact and conclusions of law.

Officer Stenger stated repeatedly that he mainly relied on

statements made by persons with whom he had spoken, with whom he

had past experience, and who had been truthful regarding their own
5

Defendant’s briefs on appeal were filed before the Supreme Court’s decision

in United States v. Booker, 125 S. Ct. 738 (2005). 

-13-

culpability. Therefore, he believed them to be reliable regarding

information they provided about defendant. The Court is satisfied that

the statements referred to were not false or recklessly made. . . .

[Stenger’s] statement that he could smell ether, based on his experience

with methamphetamine production, was convincing. The Court finds,

based on the credible testimony of Officer Stenger, that he did not make

a false statement regarding having smelled ether emanating from

defendant’s residence. Accordingly, defendant has failed to establish

that the affidavit contained deliberately false or reckless statements.

Further, the Court is satisfied that the affidavit established probable

cause to search defendant’s residence for evidence of methamphetamine

production and drug trafficking.

R&R at 14.

Upon review, we agree with the district court that Stenger did not make any

knowingly or intentionally false statements in his affidavit, nor did he demonstrate

a reckless disregard for the truth. We further conclude that the district court did not

clearly err in its determination of Stenger’s credibility or in its findings of fact related

to probable cause. The district court had a substantial basis for concluding that

probable cause to search existed under the totality of the circumstances. The district

court’s denial of the motion to suppress is affirmed.

Sentencing issues

In appealing his sentence, defendant argues that the federal sentencing

guidelines as a whole are unconstitutional,5

 the application of U.S.S.G. § 2K2.1(b)(5)
-14-

violated his Sixth Amendment rights, and the district court erred in applying §

2K2.1(b)(5) where “there was no temporal or proximal connection” between the

firearm he possessed and another felony offense such as “possession of

methamphetamine or possession of materials used in the production of

methamphetamine.” Brief for Appellant at 5, 40.

Defendant’s first two arguments are challenges to the constitutionality of the

federal sentencing guidelines. As noted above, the plea agreement included, among

other things, an express agreement by defendant “not to appeal or otherwise challenge

the constitutionality or legality of the Sentencing Guidelines.” In view of that

language, we hold that defendant waived his first two sentencing arguments on

appeal. Moreover, “[t]he fact that [defendant] did not anticipate the Blakely or

Booker rulings at the time he entered the plea agreement does not place the issue

outside the scope of the waiver.” United States v. Killgo, 397 F.3d 628, 629 n.2 (8th

Cir. 2005).

By contrast, defendant expressly preserved in the plea agreement his right to

appeal “sentencing issues which have not been agreed upon or which have not been

specifically addressed in the Plea Agreement.” Based upon that language, we

consider defendant’s argument challenging the application of § 2K2.1(b)(5), which

was based upon the district court’s conclusion that he possessed the gun in

connection with another felony offense. That conclusion is a finding of fact which

we review for clear error. United States v. Regans, 125 F.3d 685, 686 (8th Cir. 1997)

(Regans) (standard of review), cert. denied, 523 U.S. 1065 (1998). The phrase “in

connection with” in this context “means that the firearm must have some purpose or

effect with respect to, and must facilitate, or have the potential of facilitating, another

felony offense; its presence or involvement cannot be the result of accident or

coincidence.” United States v. Fredrickson, 195 F.3d 438, 439 (8th Cir. 1999) (per

curiam) (internal quotation marks omitted) (quoting Regans, 125 F.3d at 686). 
-15-

In the present case, defendant maintains that the only evidence available to the

district court on which it could make the relevant finding included statements in the

PSR, to which he admits he did not object, and testimony which he characterizes as

“largely irrelevant.” Brief for Appellant at 43. The evidence, he suggests, failed to

connect him to the drug-related equipment and paraphernalia found at the scene and,

moreover, established that there were three other people living in the house.

Consequently, he argues, the district court could not reasonably conclude that he

possessed the firearm in connection with another felony offense. See id.

We have previously held that a § 2K2.1(b)(5) enhancement may be assessed

“where the defendant possessed a firearm at the same time he was in possession of

a small amount of heroin for personal use.” United States v. Martinez, 258 F.3d 760,

762 (8th Cir. 2001) (Martinez) (citing Regans, 125 F.3d at 686); see also United States

v. Bell, 310 F.3d 604, 605-06 (8th Cir. 2002) (per curiam) (affirming § 2K2.1(b)(5)

enhancement where the “unobjected-to facts” in the presentence report showed that

there was a loaded revolver under the mattress of the defendant’s bed and two grams

of cocaine were found in a pair of shorts on the bedroom floor). In Martinez, 258

F.3d at 762, we reasoned that, whether a defendant is manufacturing drugs or merely

possessing them for personal consumption, there is an “increased risk of violence

whenever guns are in the possession of persons engaged in committing drug

felonies.” 

In the present case, defendant did not object to any of the facts stated in the

PSR. Rather, he objected to the four-level enhancement itself on the ground that the

offense conduct as stated in the PSR did not sufficiently establish a connection

between the firearm and the drug-related evidence found at the scene. 

The PSR’s statement of the offense conduct notes that the officers found, under

defendant’s bed, a fully-loaded .22 caliber semiautomatic pistol along with a spoon

which field-tested positive for methamphetamine. The PSR also notes that items

commonly associated with the production of methamphetamine were found at the
-16-

residence and that defendant himself admitted he (1) had been using

methamphetamine on and off for eleven years, (2) had manufactured it five or six

times within the past year, and (3) had sold it in the past. In view of these

“unobjected-to facts” establishing a likelihood that defendant had been engaging in

drug violations at the residence, it was reasonable for the district court to conclude

that defendant possessed the gun found in his bedroom “in connection with” another

felony offense. Cf. United States v. Agee, 333 F.3d 864, 866 (8th Cir. 2003) (“We

agree with the district court that, although police took [the defendant’s] firearm from

him outside of his residence, it is reasonable to infer that he had possessed the gun

during prior drug activities inside the residence. Regardless of whether those

activities were manufacturing or simple possession and consumption, the

enhancement was proper.”). In the present case, the district court did not clearly err

in its factual findings and was warranted in imposing upon defendant the

§ 2K2.1(b)(5) four-level enhancement. See id. (“The enhancement must be imposed

unless it is clearly improbable that he possessed the firearm in connection with

another felony offense.”). 

Conclusion

For the reasons stated, the judgment of the district court is affirmed.