Dennis D. Brown v. United States of America, David Lawrence Hay v. United States (1999)

Brown v. United States, 169 F.3d 531, 532 (8th Cir.1999).

Brown v. United States, 169 F.3d 531, 532 (8th Cir.1999).

See United States v. Anderson, 618 F.3d 873, 880-81 (8th Cir. 2010) (finding a nexus between a handgun and drug-trafficking activity where the handgun was locked in a safe that was locked inside of a storage unit); Brown v. United States, 169 F.3d 531, 533-34 (8th Cir. 1999) (finding a nexus between firearms and drug-trafficking activity where the drug-trafficking activities occurred in the basement and the firearms were locked in a safe on the first floor with drug money).

Indeed, we have recognized that ‘the term ‘willfully’ should be reserved for the more serious case, where misconduct occurs with knowledge of an investigation, or at least with a correct belief that an investigation is probably underway.’ ” Id. (quoting Brown v. United States, 169 F.3d 531, 536 (8th Cir.1999) (quoting United States v. Oppedahl, 998 F.2d 584, 586 (8th Cir.1993))).

Brown v. United States, 169 F.3d 531, 533 (8th Cir.1999).

Compare United States v. Hazut, 140 F.3d 187, 192 (2d Cir.1998) (the defendant bears only a burden of production) with United States v. Barnes, 244 F.3d 172 , 177 & n. 6 (1st Cir.2001) (defendant bears a burden of persuasion); United States v. Munoz, 233 F.3d 410, 415 (6th Cir.2000) (same); United States v. Wash, 231 F.3d 366, 373 (7th Cir.2000) (same); United States v. Maldonado, No. 99-3334, 2000 WL 825717 at *3 (10th Cir. June 26, 2000) (same); Brown v. United States, 169…

See, e.g., United States v. Cave, 293 F.3d 1077, 1079 (8th Cir.2002) (“[Ejvidence that the weapon was found in the same location as drugs or drug paraphernalia usually suffices.”); Brown v. United States, 169 F.3d 531, 533 (8th Cir.1999) (“Based on the number, type, and the state of readiness of the weapons found ... we can not agree ... that the district court ‘clearly erred’ and that it was ‘clearly improbable’ that the firearms were related to the drug trafficking activit…

Under U.S.S.G. § 3C1.1, the defendant must have “willfully” obstructed justice, which requires that he knew that he was under investigation or had “ ‘a correct belief that an investigation [was] probably underway.’ ” Brown v. United States, 169 F.3d 531, 536 (8th Cir.1999) (quoting United States v. Oppedahl, 998 F.2d 584, 586 (8th Cir.1993)).

Under U.S.S.G. § 3C1.1, the defendant must have "willfully" obstructed justice, which requires that he knew that he was under investigation or had "'a correct belief that an investigation [was] probably underway.'" Brown v. United States, 169 F.3d 531, 536 (8th Cir. 1999) (quoting United States v. Oppedahl, 998 F.2d 584, 586 (8th Cir. 1993)).

Indeed, we have recognized that “the term ‘willfully’ should be reserved for the more serious case, where misconduct occurs with knowledge of an investigation, or at least with a correct belief that an investigation is probably underway.” Brown v. United States, 169 F.3d 531, 536 (8th Cir.1999) (quoting Oppedahl, 998 F.2d at 586 ).

Indeed, we have recognized that “the term ‘willfully’ should be reserved for the more serious case, where misconduct occurs with -22- knowledge of an investigation, or at least with a correct belief that an investigation is probably underway.” Brown v. United States, 169 F.3d 531, 536 (8th Cir. 1999) (quoting Oppedahl, 998 F.2d at 586 ).

We review the district court's factual findings relating to the adjustment for clear error, Brown v. United States, 169 F.3d 531, 532 (8th Cir. 1999), but we review the district court's legal determination that the relevant conduct is within the scope of § 3C.1.1 de novo, United States v. Hankins, 931 F.2d 1256, 1263 (8th Cir. 1991), cert. denied, 502 U.S. 886 (1991).

We review the district court’s factual findings relating to the adjustment for clear error, Brown v. United States, 169 F.3d 531, 532 (8th Cir.1999), but we review the district court’s legal determination that the relevant conduct is within the scope of § 3C.1.1 de novo, United States v. Hankins, 931 F.2d 1256, 1263 (8th Cir.1991), cert. denied, 502 U.S. 886 , 112 S.Ct. 243 , 116 L.Ed.2d 198 (1991).

See United States v. Sample, 213 F.3d 1029, 1034 (8th Cir.2000) (credibility determinations are left to sentencing court); Brown v. United States, 169 F.3d 531, 533 (8th Cir.1999) (lawful use or intended use of firearm for one purpose does not preclude use of firearm for prohibited purpose of facilitating drug trade, and therefore does not automatically remove firearm from purview of § 2D1.1(b)(1)).

In Brown v. United States, 169 F.3d 531, 536 (8th Cir.1999), the sentencing evidence established the defendant opened a confidential informant’s shirt as if looking for a wire and told the informant there would be “hell to pay” from his “brothers” if anything were to happen to him.

In Brown v. United States, 169 F.3d 531, 536 (8th Cir. 1999), the sentencing evidence established the defendant opened a confidential informant's shirt as if looking for a wire and told the informant there would be “hell to pay” from his “brothers” if anything were to happen to him.

Under U.S.S.G. § 3C1.1, the defendant must have “willfully” obstructed justice, which requires that he knew that he was under investigation or had “ ‘a correct belief that an investigation [was] probably underway.’ ” Brown v. United States, 169 F.3d 531, 536 (8th Cir.1999) (quoting United States v. Oppedahl, 998 F.2d 584, 586 (8th Cir.1993)).

Under U.S.S.G. § 3C1.1, the defendant must have “willfully” obstructed justice, which requires that he knew that he was under investigation or had “‘a correct belief that an investigation [was] probably underway.’” Brown v. United -3- States, 169 F.3d 531, 536 (8th Cir. 1999) (quoting United States v. Oppedahl, 998 F.2d 584, 586 (8th Cir. 1993)).

Brown v. United States, 169 F.3d 531, 532 (8th Cir.1999). 42 Based on the trial testimony of Andre Jones, the presentence investigation report recommended the weapons enhancement.

Brown v. United States, 169 F.3d 531, 532 (8th Cir. 1999). 42 Based on the trial testimony of Andre Jones, the presentence investigation report recommended the weapons enhancement.

Put another way, “the use or intended use of firearms for one purpose, even if lawful, does not preclude the use of the firearm for the prohibited purpose of facilitating drug trade, and therefore does not automatically remove the firearm from the purview of U.S.S.G. § 2D1.1(b)(1).” Brown v. United States , 169 F.3d 531, 533 (8th Cir. 1999).

See U.S. Sentencing Guidelines Manual § 2D1.1, comment. (n.12) (1996); Brown v. United States, 169 F.3d 531, 534-35 (8th Cir. 1999).

Thus, we will sustain an enhancement pursuant to this specific offense characteristic if the government shows first “that the weapon was present and second, that it was not clearly improbable that the weapon had a nexus with the criminal activity.” Brown v. United States, 169 F.3d 531, 532 (8th Cir.1999) (internal quotations omitted).

For the § 2D1.1(b)(1) enhancement to apply, the Government need only show by a preponderance of the evidence that "'the weapon was present, and . . . that it was not clearly improbable that the weapon had a nexus with the criminal activity.'" Brown v. United States, 169 F.3d 531, 532 (8th Cir. 1999) (quoting United States v. Bost, 968 F.2d 729, 732 (8th Cir. 1992)).

Thus, we will sustain an enhancement pursuant to this specific offense characteristic if the government shows first "that the weapon was present and second, that it was not clearly improbable that the weapon had a nexus with the criminal activity." Brown v. United States, 169 F.3d 531, 532 (8th Cir. 1999) (internal quotations omitted).

See Brown v. United States, 169 F.3d 531, 532 (8th Cir. 1999) (government must show weapon was present and it was not clearly improbable that weapon had nexus with criminal activity); United States v. Payne, 81 F.3d 759, 762 (8th Cir. 1996) (ownership of weapon or premises is not required under § 2D1.1(b); individual need not be observed using weapon because actual or constructive possession is sufficient, and sufficient nexus is established if weapon was found in location w…

See 999 F.2d at 340 (noting that defendant had “cooperated with federal officials” prior to escape attempt); see also United States v. Martin, 369 F.3d 1046, 1061 (8th Cir.2004) (explaining that willful conduct “occurs with knowledge of an investigation, or at least with a correct belief that an investigation is probably underway” (emphasis omitted) (quoting Brown v. United States, 169 F.3d 531, 536 (8th Cir.1999))).

See Brown v. United States, 169 F.3d 531, 533 (8th Cir.1999) (“close proximity of firearms and ‘drug money’ can give rise to an inference that the firearms are present to protect the money and drugs, which is a nexus sufficient to support an enhancement under 2D1.1(b)(1)”); U.S.S.G. § 2D1.1(b)(1), comment. (n.3) (clearly improbable standard).

See Brown v. United States, 169 F.3d 531, 532 (8th Cir.1999) (standard of review; government must show weapon was present and it was not clearly improbable that weapon had nexus with criminal activity).

See Brown v. United States, 169 F.3d 531, 532 (8th Cir.1998).

See Brown v. United States, 169 F.3d 531, 532 (8th Cir. 1998).

See Brown v. United States, 169 F.3d 531, 532-33 (8th Cir.1999).

See Brown v. United States, 169 F.3d 531, 532-33 (8th Cir.1999).

See Brown v. United States, 169 F.3d 531, 532 (8th Cir.1999) (standard of review).

See Brown v. United States, 169 F.3d 531, 532 (8th Cir. 1999).

See Brown v. United States, 169 F.3d 531, 532 (8th Cir. 1999) (government must show weapon was present and it was not clearly improbable that weapon had nexus with criminal activity); United States v. Payne, 81 F.3d 759, 762 (8th Cir. 1996) (ownership of weapon or premises is not required under § 2D1.1(b); individual need not be observed using weapon because actual or constructive possession is sufficient, and sufficient nexus is established if weapon was found in location w…