U.S. v. McClain, 98-2292

• Decision Date: 26 March 1999
• Docket Number: No. 98-2292,98-2292
• Citation: 171 F.3d 1168
• Parties: UNITED STATES of America, Appellee, v. Mark Steven McCLAIN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1168

171 F.3d 1168

UNITED STATES of America, Appellee, v. Mark Steven McCLAIN, Appellant.

No. 98-2292.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 14, 1998.

Decided March 26, 1999.

Alan G. Kimbrell, St. Louis, MO, argued (James M. Pree, St. Louis, MO, on the brief), for Appellant.

Teresa Bright-Pearson, AUSA, argued, for Appellee.

Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.

HEANEY, Circuit Judge.

Mark Steven McClain appeals his conviction and sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(e)(1) and possession of methamphetamine in violation of 21 U.S.C. § 844(a). McClain contends that since there was no probable cause for his arrest, the district court erred in failing to suppress the evidence of the gun and methamphetamine that resulted from it. With regard to his sentence, McClain asserts that the district court incorrectly sentenced him under U.S.S.G. § 2K2.1(b)(5) and § 4B1.4. We affirm McClain's conviction and affirm in part his sentence and remand in part for resentencing consistent with this opinion.

I.

On December 15, 1996, Stoddard County, Missouri Deputy Sheriff Dennis Fowler received information that Michael Jansen, who was the subject of an outstanding warrant for a drug crime, was at a certain shed. Upon arriving at the shed, Deputy Fowler learned that Jansen had been at the shed earlier in the day but had left. With the owner's permission, Deputy Fowler entered the shed and confiscated two guns and a duffel bag that the owners indicated belonged to Jansen. Later that day, upon receiving information that Jansen was there, Deputies Fowler and Haynes returned to the shed. Seeing Deputy Fowler approach the shed, Jansen, who was walking out, backed up into the shed and laid down when Deputy Fowler indicated he was under arrest.

As Deputy Fowler was handcuffing Jansen, he looked into the building and observed McClain and another individual inside the shed. He saw McClain toss something into the bed of a pickup truck parked in the shed and heard a heavy sound as the object hit the truck bed. When Deputy Fowler approached the bed of the pickup, he saw that the object McClain had thrown was a black semi-automatic pistol. He seized the weapon and ordered McClain to the ground. Deputy Haynes located a methamphetamine lab in an office closet approximately fifteen feet from McClain. The smell of ether was present in the shed. At this time, Deputy Fowler placed McClain under arrest for attempt to manufacture methamphetamine. He searched him and found a concealed buck knife, a leather pouch with a box of ammunition, and a leather pouch with packages of methamphetamine and pseudoephedrine. Officers later found a nylon holster on McClain's person when he was searched at the Stoddard County jail.

McClain was then convicted by a jury on February 3, 1998 of being a felon in possession of a firearm and possession of methamphetamine. At sentencing, the district court assigned the firearm-possession offense a base level of 24 under U.S.S.G. § 2K2.1(a)(2). The district court then gave McClain a four-level enhancement under § 2K2.1(b)(5) because he possessed the firearm "in connection with" another felony offense and a two-level enhancement for obstruction of justice. Thus, McClain's total offense level for the firearm charge was 30. The district court then determined that because of his prior offenses, McClain should be sentenced under the "Armed Career Criminal" provisions of U.S.S.G. § 4B1.4(b)(3)(A), which resulted in an adjusted offense level of 34.

II.

McClain first argues that the district court erred in overruling his motion to suppress the methamphetamine and ammunition seized from his person in that there was no probable cause for his arrest. Also, McClain contends that the court erred in failing to suppress McClain's statements as "fruits of the poisonous tree" of his illegal arrest. Finally, McClain claims that the district court committed plain error in admitting evidence of the methamphetamine lab discovered in the shed. We disagree with each of McClain's contentions.

We review de novo the district court's determination that probable cause supported McClain's arrest. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The existence of probable cause to make a warrantless arrest depends upon "whether, at the moment the arrest was made, ... the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." United States v. Morgan, 997 F.2d 433, 435 (8th Cir.1993) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)).

The circumstances of McClain's arrest support a finding of probable cause. Deputy Fowler had discovered guns in the earlier permissible search of the shed. Jansen was carrying a gun when arrested in the presence of McClain. When McClain first saw Deputy Fowler, he made a furtive move to discard an object which Deputy Fowler saw to be a gun before arresting him. Deputy Haynes discovered the methamphetamine lab approximately fifteen feet from McClain. There was also an odor of ether in the air, which is associated with the production of methamphetamine. All of these circumstances were sufficient to create probable cause that McClain was attempting to manufacture methamphetamine. Therefore, the district court correctly denied McClain's motion to suppress the evidence and statements resulting from the arrest.

With regard to McClain's contention that it was plain error to admit the evidence of the methamphetamine lab, we find that the district court was within its discretion in admitting the evidence as relevant to explain the circumstances surrounding McClain's arrest.

McClain next argues that he was improperly sentenced under U.S.S.G. § 2K2.1(b)(5) and § 4B1.4. The district court found that McClain qualified for an enhancement under both § 2K2.1(b)(5) and § 4B1.4 for possessing a firearm in connection with the attempted manufacture of methamphetamine. ¹ He asserts that the prosecution failed to show both that the underlying offense occurred and that the gun was used "in connection with" that offense. ² We disagree.

The government presented various evidence tending to show that McClain attempted to manufacture methamphetamine. He was arrested fifteen feet from an open bag containing an active lab. The lab had not been in the shed earlier in the day before McClain arrived with the other two men. McClain had both the finished product, methamphetamine, and an ingredient or precursor, pseudoephedrine, on his person when he was arrested. When Deputy Fowler asked him what the pseudoephedrine was for, McClain responded that it was for "making dope."

The Commentary to the "in connection with a felony offense" enhancement language of § 2K2.1(b)(5) defines felony offense as "any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or a criminal conviction obtained." U.S.S.G. § 2K2.1(b)(5), comment. (n. 7). Based on the evidence discussed above, the government established that McClain committed the underlying offense of attempt to manufacture methamphetamine for which he was charged in state court.

Furthermore, the evidence of the gun tossed into the bed of the truck and the ammunition found on McClain sufficiently established that McClain used the firearm "in connection with" the offense of attempt to manufacture methamphetamine. Section 2D1.1, Application Note 3 states that the firearm enhancement should be applied unless it is clearly improbable that the weapon was connected to the offense. See U.S.S.G. § 2D1.1, comment. (n. 3). In United States v. Regans, 125 F.3d 685, 686 (8th Cir.1997), we observed that a firearm is a "tool of the trade" for drug dealers and that a connection can be inferred where there is a firearm and distribution quantity. We then held that an enhancement may be given even where the drug offense only involves possession, since the guidelines target the increased risk of violence when a gun is...