Appeal from the United States District Court for the Southern District of California; D.C. No. CR-90-0036-01-K; Judith N. Keep, District Judge, Presiding.
Kilkenny, Sneed, and Ferguson, Circuit Judges.
Geno Morris Cockrum appeals his sentence of 110 months following a guilty plea to attempted possession of methamphetamine with intent to distribute and possession of an unregistered firearm. He alleges that his sentence is illegal because the district court judge incorrectly applied the Sentencing Guidelines. We have jurisdiction pursuant to 28 U.S.C. § 1294(1) and we affirm.
In December 1989 a confidential informant provided information to authorities regarding alleged drug trafficking by Cockrum. According to the informant, Cockrum manufactured 10 to 20 pounds of methamphetamine per month for associates to distribute. On December 15, the informant bought 13.9 grams of methamphetamine from a co-defendant at an apartment on Ball Avenue in Escondido. Two weeks later, agents executed a federal search warrant at the Ball Avenue apartment and arrested the occupants, appellant and Lorraine Greco, another co-defendant. The agents also seized a number of items, including 213 grams of suspected methamphetamine,*fn1 18 grams of marijuana, 0.126 grams of methamphetamine, scales, drug packaging material, approximately $13,000 in United States currency, alleged narcotics ledgers and receipts, four shotguns, two pistols, ammunition, alleged laboratory equipment and additional drug paraphernalia. Defendant acknowledged his residence in the apartment but denied any knowledge of the drugs found during the search.
Authorities charged Cockrum with five counts of various drug and weapons offenses. In July 1990 he pled guilty to attempted possession of methamphetamine with intent to distribute, a violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession of an unregistered firearm in violation of 26 U.S.C. §§ 5816(d) and 5871.
A probation officer prepared a presentence report. The base offense level was calculated to be 26. Four points were added based on the Specific Offense Characteristics: two for possession of a firearm and two for an aggravated role in the offense. The probation officer did not recommend subtracting two points for acceptance of responsibility. Thus, the recommended Total Offense Level was 30. The criminal history score was 8, with a criminal history category of IV. The applicable guideline range was 135 to 168 months. The judge accepted the recommendation except for the additional two points for an aggravated role. The final total offense level was therefore 28, with a range of 110 to 137 months. Following the plea agreement, the judge sentenced appellant to the low end of the guidelines, a 110-month prison term on each charge, with the two terms to run concurrently.*fn2
Cockrum alleges that the district court made three errors in calculating his sentence.
A. Upward Adjustment for Firearm Possession.
The district court's legal interpretation of the Guidelines is reviewed de novo. United States v. Foreman, 926 F.2d 792, 795 (9th Cir. 1991).
Appellant contends that the district court erred by increasing his base offense level for possession of a firearm in connection with a drug offense because he was convicted simultaneously for the separate offense of possessing an unregistered firearm. This contention lacks merit.
The probation officer recommended adding two levels pursuant to U.S.S.G. § 2D1.1(b)(2), the Specific Offense Characteristics category. Section 2D1.1(b)(1) provides that "if a dangerous weapon (including a firearm) was possessed during commission of the offense [involving drugs], increase by 2 levels." The application states, in part: "The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1, comment. (n.3).
Cockrum objected to the upward adjustment at the sentencing hearing, arguing first that additional guns found in the house were not functional, and second that following Conviction of a substantive weapons charge, an ...