United States v. Peroceski, 520 F.3d 886 (8th Cir. 2008). · Go Syfert
United States v. Peroceski, 520 F.3d 886 (8th Cir. 2008). Cases Citing This Book View Copy Cite
72 citation events (72 in the last 25 years) across 6 distinct courts.
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At page 889 Defining government's burden for firearm sentencing enhancement32 citing casesThe gun need not even be operable for it to be connected to the offense.1 citing court put it this way · 30 listed here
  • United States v. Tovis Richardson, 146 F.4th 394 (4th Cir. 2025).published
    (The gun need not even be operable for it to be connected to the offense.)
  • United States v. Thomas Ashburn, 865 F.3d 997 (8th Cir. 2017).published
    (The burden is always on the government to prove that a defendant is subject to a sentencing enhancement.)
  • United States v. Tyree Williams, No. 24-3390 (8th Cir. Nov. 20, 2025).unpublished
    “The government must simply show that it is not clearly improbable that the weapon was connected to the drug offense.” United States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008).
  • United States v. Bradley Ready, 87 F.4th 931 (8th Cir. 2023).published
    (noting that for this “particular enhancement . . . the guidelines reduce the quantum of proof necessary to make out a case for its application)
  • United States v. Remberto Rivera, 76 F.4th 1085 (8th Cir. 2023).published
    “Once a district court has found that a gun was possessed during commission of the offense, the court must impose the § 2D1.1(b)(1) enhancement unless it is clearly improbable that the weapon was connected to the offense.” Id. (citing Unit…
  • United States v. Michael Voelz, 66 F.4th 1155 (8th Cir. 2023).published
    “The government must simply show that it is not clearly improbable that the weapon was connected to the drug offense.” United States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008).
  • United States v. Michael LeBeau, No. 22-1091 (8th Cir. Aug. 9, 2022).unpublished
    Under these circumstances, it did not require much for the district court to “infer[]” that the guns and drugs were “somehow connected.” United States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008); see also Garcia, 703 F.3d at 477 .
  • Xeko v. United States, No. 1:19-cv-00053 (N.D. Iowa Aug. 1, 2022).
    The government further argues that: In order for the U.S.S.G. §2D1.1(b)(1) enhancement to be applied to a defendant in a drug case, “[t]he government must simply show that it is not clearly improbable that the weapon was connected to the d…
  • United States v. Marcus Broadway, 815 F. App'x 95 (8th Cir. 2020).unpublished
    The presence of these items allowed the district court to “infer[] that a gun near the vicinity of drug activity [was] somehow connected to it.” United States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008).
  • United States v. Julie Andrade, No. 18-2748 (8th Cir. Sept. 9, 2019).unpublished
    To prove a connection between the gun and the crime the government “must simply show that it is not clearly improbable that the weapon was connected to the drug offense.” United States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008).
Show 20 more citing cases
  • United States v. Raymond Napolitan, 762 F.3d 297 (3d Cir. 2014).published
    Only the Eighth Circuit has staked out a different path, declaring that “[t]he gov *310 ernment must ... show that it is not clearly improbable that the weapon was connected to the drug offense.” United States v. Peroceski, 520 F.3d 886, 8…
  • United States v. Bobby Roberts, 557 F. App'x 625 (8th Cir. 2014).unpublished 2 cites
    The factual stipulations in the plea agreement also support a finding that “it is not clearly improbable that the weapon was connected to the drug offense.” United States v. Peroceski, 520 F.3d 886, 889 (8th Cir.2008); see also USSG § 2D1.…
  • United States v. Shelby Young, Jr., 689 F.3d 941 (8th Cir. 2012).published 2 cites
    In order for the enhancement to apply, the government must establish two things: “(1) the gun was possessed and (2) it was not clearly improbable that the weapon was connected to the drug offense.” United States v. Anderson, 618 F.3d 873,…
  • United States v. Isaiah Mahone, 688 F.3d 907 (8th Cir. 2012).published
    Given the “well-known tendency of drug criminals to use firearms in connection with their drug activities,” United States v. Peroceski, 520 F.3d 886, 889 (8th Cir.2008), the district court did not clearly err in finding that the same cours…
  • United States v. Hull, 646 F.3d 583 (8th Cir. 2011).published
    United States v. Brewer, 624 F.3d 900, 907 (8th Cir.2010), cert. denied, — U.S. —, 131 S.Ct. 1805 , 179 L.Ed.2d 670 (2011). *587 To carry its burden of proving that the firearm enhancement should apply under section 2D1.1, “[t]he governmen…
  • United States v. Thomas Fisher, 420 F. App'x 641 (8th Cir. 2011).unpublished
    United States v. Peroceski, 520 F.3d 886, 889 (8th Cir.2008).
  • United States v. San-Miguel, 634 F.3d 471 (8th Cir. 2011).published 2 cites
    While San-Miguel argues that the enhancement should not apply because law enforcement agents did not observe her exhibit a firearm or “employ the use of any firearms or dangerous weapons during the drug offenses,” we have held that “[t]he…
  • United States v. Wael Abdel-Karem, 409 F. App'x 61 (8th Cir. 2011).unpublished
    To trigger a sentencing enhancement under U.S.S.G. § 2Dl.l(b)(l), “[t]he government must simply show that it is not clearly improbable that the weapon was connected to the drug offense.” United States v. Peroceski, 520 F.3d 886, 889 (8th C…
  • United States v. Brewer, 624 F.3d 900 (8th Cir. 2010).published 4 cites
    To carry its burden of proving that the firearm enhancement should apply under § 2D1.1, “[t]he government must simply show that it is not clearly improbable that the weapon was connected to the drug offense.” United States v. Peroceski, 52…
  • United States v. Anderson, 618 F.3d 873 (8th Cir. 2010).published 2 cites
    United States v. Peroceski, 520 F.3d 886, 889 (8th Cir.2008).
  • United States v. Muhammad Queadir Abdul-Ahad, 381 F. App'x 635 (8th Cir. 2010).unpublished
    For a § 2Dl.l(b)(l) enhancement to be warranted “the government must simply show that it is not clearly improbable that the weapon was connected to the drug offense.” United States v. Peroceski, 520 F.3d 886, 889 (8th Cir.2008).
  • United States v. Cosey, 602 F.3d 943 (8th Cir. 2010).published
    U.S.S.G. § 2Dl.l(b)(l) provides: “If a dangerous weapon (including a firearm) was possessed [in connection with the offense], increase by 2 levels.” The proof requirement for establishing possession of a dangerous weapon in connection with…
  • United States v. Charles Wells, 360 F. App'x 716 (8th Cir. 2010).unpublished
    In order for an enhancement under § 2Dl.l(b)(l) to apply, “[t]he government must simply show that it is not clearly improbable that the weapon was connected to the drug offense.” United States v. Peroceski, 520 F.3d 886, 889 (8th Cir.2008).
  • United States v. Ricardo Martinez-Salinas, No. 08-3356 (8th Cir. July 20, 2009).published
    We have previously held that, in order for the § 2D1.1(b)(1) enhancement to be applied to a defendant in a drug case, "[t]he government must simply show that it is not clearly improbable that the weapon was connected to the drug offense."…
  • United States v. Martinez-Salinas, 573 F.3d 595 (8th Cir. 2009).published
    We have previously held that, in order for the § 2Dl.l(b)(l) enhancement to be applied to a defendant in a drug case, “[t]he government must simply show that it is not clearly improbable that the weapon was connected to the drug offense.”…
  • United States v. Jenifer Wahl, No. 24-2089 (8th Cir. June 13, 2025).unpublished
    See United States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008).
  • United States v. Maricus Futrell, No. 22-2251 (8th Cir. Mar. 27, 2023).unpublished 3 cites
    See United States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008).
  • United States v. Jacinto Rivera-Mendoza, 682 F.3d 730 (8th Cir. 2012).published 2 cites
    See United States v. Peroceski 520 F.3d 886, 889 (8th Cir.2008).
  • United States v. Dorman Haire, 353 F. App'x 72 (8th Cir. 2009).unpublished
    ([The] well-known tendency of drug criminals to use firearms in connection with their drug activities supports an inference that a gun near the vicinity of drug activity is somehow connected to it.)
  • United States v. James Fithen, Jr., No. 23-1790 (8th Cir. Feb. 14, 2024).unpublished
    (the government must “show that it is not clearly improbable that the weapon was connected to the drug offense)
At page 888 Analyzing the standard for proving weapon connection to offense5 citing casesfor § 2D1.1(b)(1) to apply, government must simply show that it is not clearly improbable that weapon was connected to drug offense1 citing court put it this way
  • United States v. Aaron Sheets, No. 24-2281 (8th Cir. Jan. 10, 2025).unpublished
    (for § 2D1.1(b)(1) to apply, government must simply show that it is not clearly improbable that weapon was connected to drug offense)
  • In re World Mktg. Chicago, LLC, 564 B.R. 587 (Bankr. N.D. Ill. 2017).published
    Aug. 11, 2015) (analyzing “the plain language of the commentary” to reach its holding); see also, e.g., United States v. Evans, 782 F.3d 1115 , 1117 (10th Cir. 2015) (same), cert. denied, — U.S. -, 136 S.Ct. 171 , 193 L.Ed.2d 138 (2015); U…
  • United States v. Canania, 532 F.3d 764 (8th Cir. 2008).published 2 cites
    (clarifying that government bears burden of proving defendant is subject to sentencing enhancement by establishing it is not clearly improbable that firearm was connected to drug offense)
  • United States v. Faith Blake, 695 F. App'x 859 (6th Cir. 2017).unpublished
    Hough, 276 F.3d at 894 ; see also United States v. Peroceski, 520 F.3d 886, 888 (8th Cir. 2008).
  • United States v. Jesus Ordaz, 515 F. App'x 618 (8th Cir. 2013).unpublished
    United States v. Brown, 148 F.3d 1003 , 1008-09 (8th Cir.1998), cert. denied, 525 U.S. 1169 , 119 S.Ct. 1092 , 143 L.Ed.2d 92 (1999); see also United States v. Peroceski, 520 F.3d 886, 888-89 (8th Cir.2008), cert. denied, 555 U.S. 912 , 12…
At page 887 “the government must simply show that it is not clearly improbable that the weapon was connected to the drug offense.”2 citing cases10 citing courts quote it
  • United States v. Christopher Thomas, 387 F. App'x 671 (8th Cir. 2010).unpublished
    However, in United States v. Peroceski, 520 F.3d 886, 887 (8th Cir.), cert. denied, — U.S.-, 129 S.Ct. 259 , 172 L.Ed.2d 194 (2008), we noted “two competing lines of cases in our circuit” on this question.
  • United States v. Annette Canania, No. 07-1078 (8th Cir. July 14, 2008).published
    (clarifying that government bears burden of proving defendant is subject to sentencing enhancement by establishing it is not clearly improbable that firearm was connected to drug offense)
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Timothy Paul PEROCESKI, Also Known as Timothy P. Percoceski, Also Known as Stimmey, Appellant
07-1336.
Court of Appeals for the Eighth Circuit.
Mar 28, 2008.
Published opinion
520 F.3d 886
2008 U.S. App. LEXIS 6467
2008 WL 819082
Katherine M. Menendez, AFPD, argued, Gregory Scanlon, law clerk, on the brief, Minneapolis, MN, for appellant., Timothy Christopher Rank, AUSA, argued, Omar A. Syed, AUSA, on the brief, Minneapolis, MN, for appellee.
Bye, Arnold, Melloy.
Cited by 45 opinions  |  Published
ARNOLD, Circuit Judge.

Timothy Peroceski pleaded guilty to possessing 50 or more grams of methamphetamine with intent to distribute it. See 21 U.S.C. § 841(a)(1), (b)(1). In calculating Mr. Peroceski’s sentence, the district court [1] applied a two-level enhancement under U.S.S.G. § 2Dl.l(b)(l) for possessing a dangerous weapon in connection with a drug crime. Mr. Peroceski appeals his sentence and we affirm.

Mr. Peroceski did not dispute any of the facts in the pre-sentence report (PSR) that[*887] was prepared for his case, leading the district court to adopt them in their entirety. The PSR recounts that the police found thirteen guns inside the house of Mr. Peroeeski’s girlfriend, where Mr. Per-oeeski sometimes stayed. The police found the relevant methamphetamine in his girlfriend’s garage and two guns in a camper-trailer on her property. Inside the camper-trailer along with the two guns were court papers belonging to Mr. Per-oeeski, two checks issued to him, a scale, a light bulb altered into a smoking device, and a quantity of marijuana. As the PSR recommended, the district court found Mr. Peroceski responsible for “at least” the two firearms in the camper-trailer. Mr. Peroceski did not deny possessing the two guns, but he denied that they had any connection with his drugs: He maintained that he took the guns from his suicidal brother at the request of his parents to ensure his brother’s safety.

There are two competing lines of cases in our circuit on the question of when it is appropriate to apply an enhancement for possessing a dangerous weapon in connection with a drug crime under U.S.S.G. § 2Dl.l(b)(l). One line emphasizes the commentary to the federal sentencing guidelines that says that the enhancement “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 cmt. n.3. The second line of cases evidently originates in the general requirement that the government prove the factual premises of a sentence enhancement by a preponderance of the evidence, see United States v. Malbrough, 922 F.2d 458, 464 (8th Cir.1990), cert. denied, 501 U.S. 1258, 111 S.Ct. 2907, 115 L.Ed.2d 1071 (1991). These cases hold that “the government must show that the weapon was present and that it is at least probable that the weapon was connected with the offense.” United States v. Hayes, 15 F.3d 125, 127 (8th Cir.1994), cert. denied, 512 U.S. 1225, 114 S.Ct. 2718, 129 L.Ed.2d 843 (1994).

This second approach can be traced to an apparent origin in United States v. Khang, 904 F.2d 1219, 1223-24 (8th Cir.1990), and United States v. Bost, 968 F.2d 729, 732 (8th Cir.1992). These were important early cases that implied, though they did not state outright, that the government must prove a probable connection between the weapon and the drugs. This line of cases grew out of Bost, although the first case to rely on Bost cited it for the proposition that the government need prove only that a connection is not clearly improbable. See United States v. Matthews, 5 F.3d 1161, 1166 (8th Cir.1993). Shortly afterward, however, we cited Bost to support our first unambiguous statement that the government must prove that the weapon was probably connected to the offense. Hayes, 15 F.3d at 127. Our opinions on § 2D1.1(b)(1) beginning in 2005 illustrate our inconsistency on this matter. Of the twenty-five published cases that address the relevant guideline, eighteen say that the government must prove that it is not clearly improbable that the weapon was connected to the drug crime, [2] four do[*888] not address the matter, [3] two are equivocal, [4] and one says that “not clearly improbable” means “probable.” [5] Even within these categories there is some inconsistency in the language employed.

Aguilar provides an apt illustration of the uncertainty that our cases have sometimes exhibited on this issue. In determining whether the enhancement applied, we first quoted our holding in United States v. Dillard, 370 F.3d 800, 804 (8th Cir.2004), that the government must “show by a preponderance of the evidence that a [dangerous weapon] ... was probably connected to the drug offense,” but we then concluded based on the guideline commentary that the government had met its burden because it was not “clearly improbable” that the weapon was connected with the offense, see U.S.S.G. § 2D1.1 cmt. n. 3. Aguilar, 512 F.3d at 487.

When faced with “competing lines of cases ... [w]e are ... free to choose which line of cases to follow.” Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1228 n. 8 (8th Cir.1995). In considering which line of cases is correct, it is important to note at the beginning that there are actually two separate things that the government must show before the enhancement applies: that the weapon was present and that it was connected to the offense. Matthews, 5 F.3d at 1166. Even the cases that rely on the “not clearly improbable” language of the commentary generally recognize that the government must prove that it was probable that the weapon was present. See, e.g., id. The plain language of the commentary shows that the matter of dear improbability relates only to the connection of the weapon with the offense.

The question is thus whether the government must prove that it was probable, or that it was not clearly improbable, that the weapon was connected to the offense. We think that the plain language of the commentary answers the question in favor of the latter principle, and we note that the commentary to the guidelines is binding “unless it is plainly erroneous or inconsistent with” the guideline itself, Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Reducing the proof required on the question of connection, moreover, supports the goals of the enhancement. It discourages drug criminals from bringing weapons anywhere near their drugs. It also recognizes that the mere availability of a weapon during a drug crime makes further inquiry into the relation between the two virtually pointless[*889] because of the increased risk' of violence that the presence of a gun gives rise to.

This logic is sufficiently compelling that it appears that no other circuits have held that the government need prove that the weapon was probably connected to the offense. See United States v. Hursh, No. 01-5141, 65 Fed.Appx. 198, 200 (10th Cir. April 14, 2003) (unpublished). The Second and D.C. Circuits avoid discussion of the burden and rely on the commentary to the guidelines without further elaboration. See United States v. Ortega, 94 F.3d 764, 767 (2d Cir.1996); United States v. Weedon, No. 02-3027, 71 Fed.Appx. 70 (D.C.Cir. Aug. 15, 2003) (unpublished). All the other circuits have taken the language of clear improbability to reduce what the government must prove to such an extent that the defendant has the burden of disproving the connection once the government has shown that the weapon was present. See United States v. Anderson, 452 F.3d 87, 90 (1st Cir.2006); United States v. Thornton, 306 F.3d 1355, 1357 (3d Cir.2002); United States v. Davis, No. 01-4889, 63 Fed.Appx. 76, 81 (4th Cir. April 14, 2003) (unpublished per curiam), cert. denied, 540 U.S. 895, 124 S.Ct. 240, 157 L.Ed.2d 171 (2003); United States v. Cooper, 274 F.3d 230, 246 n. 8 (5th Cir.2001); United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.1996), cert. denied, 519 U.S. 858, 117 S.Ct. 158, 136 L.Ed.2d 102 (1996); United States v. Berkey, 161 F.3d 1099, 1102-03 (7th Cir.1998); United States v. Restrepo, 884 F.2d 1294, 1296 (9th Cir.1989); United States v. Alexander, 292 F.3d 1226, 1231 (10th Cir.2002); United States v. Hall, 46 F.3d 62, 63-64 (11th Cir.1995) (per curiam).

We respectfully disagree with the circuits that hold that the commentary shifts the burden of proof to the defendant. The burden is always on the government to prove that a defendant is subject to a sentencing enhancement. But in the case of the particular enhancement involved in this case, the guidelines reduce the quantum of proof necessary to make out a case for its application: The government must simply show that it is not clearly improbable that the weapon was connected to the drug offense.

Regarding the character of this connection, “[t]he government need not show that the defendant used or even touched a weapon to prove a connection between the weapon and the offense.” United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir.2000) (per curiam). This means that “[e]vidence that the weapon was found in the same location as drugs or drug paraphernalia usually suffices.” Id. We have also recognized that a well-known tendency of drug criminals to use firearms in connection with their drug activities supports an inference that a gun near the vicinity of drug activity is somehow connected to it. See United States v. Jones, 327 F.3d 654, 657-58 (8th Cir.2003). The gun need not even be operable for it to be connected to the offense. See United States v. Luster, 896 F.2d 1122, 1128-29 (8th Cir.1990).

In the present case there was sufficient evidence to support the district court’s application of the enhancement. Mr. Peroceski admitted that the guns were his but denied that they were connected to the crime. He points out that the methamphetamine he pleaded guilty to possessing was found in a safe in his girlfriend’s garage, whereas the two firearms for which he was held responsible were found in a camper-trailer on the property. But, as we have already said, the guns were found in the camper-trailer with a light bulb altered into a smoking device, a scale, and a quantity of marijuana; the methamphetamine was found in the safe with a scale and a quantity of marijuana. These facts allowed the district court to infer that Mr. Peroceski’s drug activities were suffi[*890] ciently interrelated that it was not clearly improbable that the guns were connected to his possession of methamphetamine. We thus detect no error in the district court’s holding that the guns were connected to Mr. Peroceski’s crime or in its application of § 2Dl.l(b)(l).

Affirmed.

1

. The Honorable David S. Doty, United States District Judge for the District of Minnesota.

2

. United States v. Gordon, 510 F.3d 811, 818 (8th Cir.2007); United States v. Delgado-Paz, 506 F.3d 652, 654 (8th Cir.2007); United States v. Harris, 493 F.3d 928, 931-32 (8th Cir.2007), cert. denied, 76 U.S.L.W. 3441, - U.S. -, 128 S.Ct. 1263, 170 L.Ed.2d 111 (2008); United States v. Minnis, 489 F.3d 325, 332-33 (8th Cir.2007), cert. denied, - U.S. -, 128 S.Ct. 1097, 169 L.Ed.2d 831 (2008); United States v. Gillispie, 487 F.3d 1158, 1162 (8th Cir.2007); United States v. Rodriguez, 484 F.3d 1006, 1015-16 (8th Cir.2007), cert. denied, - U.S. -, 128 S.Ct. 316, 169 L.Ed.2d 152 (2007); United States v. Bell, 477 F.3d 607, 614 (8th Cir.2007); United States v. Davis, 471 F.3d 938, 949 (8th Cir.2006); United States v. Willie, 462 F.3d 892, 898 (8th Cir.2006), cert. denied, - U.S. -, 127 S.Ct. 1847, 167 L.Ed.2d 341 (2007); United [*888] States v. Villareal-Amarillas, 454 F.3d 925, 931-32 (8th Cir.2006), cert. denied, - U.S. -, 127 S.Ct. 989, 166 L.Ed.2d 747 (2007); United States v. Ault, 446 F.3d 821, 824 (8th Cir.2006); United States v. Morin, 437 F.3d 777, 781 (8th Cir.2006); United States v. Wattree, 431 F.3d 618, 623 (8th Cir.2005); United States v. Pizano, 421 F.3d 707, 732 (8th Cir.2005), ce rt. denied, 546 U.S. 1204, 126 S.Ct. 1409, 164 L.Ed.2d 108 (2006); United States v. Burling, 420 F.3d 745, 749-50 (8th Cir.2005); United States v. Savage, 414 F.3d 964, 966-67 (8th Cir.2005); United States v. Noe, 411 F.3d 878, 889 (8th Cir.2005), cert. denied, 546 U.S. 892, 126 S.Ct. 184, 163 L.Ed.2d 205 (2005) & 546 U.S. 1201, 126 S.Ct. 1403, 164 L.Ed.2d 103 (2006); United States v. Ingles, 408 F.3d 405, 409 (8th Cir.2005).

3

. United States v. Annis, 446 F.3d 852, 856-57 (8th Cir.2006), cert. denied, - U.S. -, 127 S.Ct. 3044, 168 L.Ed.2d 759 (2007); United States v. Denton, 434 F.3d 1104, 1114 (8th Cir.2006); United States v. Funchess, 422 F.3d 698, 703-04 (8th Cir.2005), cert. denied, 546 U.S. 1223, 126 S.Ct. 1452, 164 L.Ed.2d 148 (2006); United States v. Adams, 401 F.3d 886, 896 (8th Cir.2005), cert. denied, 546 U.S. 966, 126 S.Ct. 492, 163 L.Ed.2d 373 (2005).

4

. United States v. Aguilar, 512 F.3d 485, 487-88 (8th cir.2008); United States v. Torres, 409 F.3d 1000, 1003 (8th Cir.2005).

5

. United States v. Lopez, 416 F.3d 713, 716 (8th Cir.2005).