United States v. Byron W. Matthews, 942 F.2d 779 (10th Cir. 1991). · Go Syfert
United States v. Byron W. Matthews, 942 F.2d 779 (10th Cir. 1991). Cases Citing This Book View Copy Cite
“members of the conspiracy routinely took the weapons with them on drug-selling excursions in order to protect the drugs and cash they carried.”
82 citation events (15 in the last 25 years) across 17 distinct courts.
Strongest positive: DeCarlos Neshunn Holloway v. State of Mississippi (missctapp, 2019-06-25)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 43 distinct citers.
discussed Cited as authority (verbatim quote) DeCarlos Neshunn Holloway v. State of Mississippi
Miss. Ct. App. · 2019 · quote attribution · 1 verbatim quote · confidence high
t has become common knowledge that drug operators frequently acquire weapons for use in connection with drug activities.
examined Cited as authority (verbatim quote) United States v. Bobby Gene Richardson (3×) also: Cited as authority (rule), Cited "see, e.g."
10th Cir. · 1996 · quote attribution · 1 verbatim quote · confidence high
members of the conspiracy routinely took the weapons with them on drug-selling excursions in order to protect the drugs and cash they carried.
cited Cited as authority (rule) United States v. Tenorio
10th Cir. · 2009 · confidence medium
United States v. Matthews, 942 F.2d 779, 784 (10th Cir.1991).
discussed Cited as authority (rule) United States v. Brown
D. Ariz. · 2008 · confidence medium
Many circuits, including this one, have recognized “the close relationship between drugs and firearms in the narcotics trade[.]” United States v. Simpson, 10 F.3d 645, 647 (9th Cir.1993), vacated on other grounds by 513 U.S. 983 , 115 S.Ct. 477 , 130 L.Ed.2d 391 (1994); see United States v. Gamble, 388 F.3d 74, 77 (2d Cir.2004) (“ammunition is a recognized tool of the drug-dealing trade”); United States v. Cooper, 19 F.3d 1154, 1163 (7th Cir. 1994) (“weapons are ‘tools of the trade’ of drug dealers”); United States v. Smith, 918 F.2d 1501, 1509 (11th Cir.1990) (firearms are “…
cited Cited as authority (rule) United States v. Marquez-Madrid
10th Cir. · 2007 · confidence medium
Unlike in United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991), in this case there was evidence that Mr. Marquez-Madrid availed himself of the firearms.
cited Cited as authority (rule) United States v. Marquez-Madrid
10th Cir. · 2007 · confidence medium
Unlike in United States v. M atthews, 942 F.2d 779, 783 (10th Cir. 1991), in this case there was evidence that M r.
discussed Cited as authority (rule) United States v. Amores
10th Cir. · 2003 · confidence medium
To establish this nexus, the evidence must show “ ‘that the defendant intended the weapon to be available for use during the drug transaction.’ ” Nicholson, 983 F.2d at 990 (quoting United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991)).
discussed Cited as authority (rule) United States v. Radcliff
10th Cir. · 2003 · confidence medium
United States v. Shuler, 181 F.3d 1188, 1190 (10th Cir.1999) (citing United States v. Richardson, 86 F.3d 1537, 1548 (10th Cir.1996) (quoting United States v. Nicholson, 983 F.2d 983, 990 (10th Cir.1993))); United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991) (citing S.Rep.
discussed Cited as authority (rule) United States v. Shuler
D. Colo. · 1999 · confidence medium
The “during and in relation to” element requires evidence that the “defendant intended the weapon to be available for use during the drug transaction.” United States v. Miller, 84 F.3d at 1260 (emphasis added); United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991).
discussed Cited as authority (rule) United States v. Rowland (2×) also: Cited "see"
10th Cir. · 1998 · confidence medium
United States v. Matthews, 942 F.2d 779, 782 (10th Cir. 1991).
examined Cited as authority (rule) United States v. James Frederick Rowland (4×) also: Cited "see"
10th Cir. · 1998 · confidence medium
United States v. Matthews, 942 F.2d 779, 782 (10th Cir.1991).
discussed Cited as authority (rule) Gillis v. United States
D. Wyo. · 1996 · confidence medium
To establish this nexus, there must be evidence that defendant “intended the weapon to be available for use during [a] drug transaction.” [U.S. v.] Nicholson, 983 F.2d [983] at 990 [(10th Cir.1993)] (citing United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991)) (emphasis in original).
discussed Cited as authority (rule) United States v. Brian L. Miller, United States of America v. Michael Ray Hicks
10th Cir. · 1996 · confidence medium
To establish this nexus, there must be evidence that defendant “intended the weapon to be available for use during [a] drug transaction.” Nicholson, 983 F.2d at 990 (citing United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991)) (emphasis in original).
discussed Cited as authority (rule) United States v. Miller
10th Cir. · 1996 · confidence medium
To establish this nexus, there must be evidence that defendant "intended the weapon to be available for use during [a] drug transaction." Nicholson, 983 F.2d at 990 (citing United States v. Mathews, 942 F.2d 779, 783 (10th Cir. 1991)) (emphasis in original).
discussed Cited as authority (rule) United States v. Nicholson
D. Kan. · 1996 · confidence medium
“To prove this necessary relation, the Government’s evidence must support a finding that the defendant intended the weapon to be available for use during the drug transaction.” United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991).
discussed Cited as authority (rule) United States v. Smith
D. Kan. · 1994 · confidence medium
See United States v. Hall, 20 F.3d 1084, 1088-89 (10th Cir.1994) (citing United States v. Conner, 972 F.2d 1172, 1173-74 (10th Cir.1992); United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991); and United States v. McKinnell, 888 F.2d 669, 675 (10th Cir.1989)).
discussed Cited as authority (rule) United States v. Gregory R. Hall, A/K/A Don Cusick (2×) also: Cited "see"
10th Cir. · 1994 · confidence medium
United States v. Conner, 972 F.2d 1172, 1173-74 (10th Cir.1992); United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991); United States v. McKinnell, 888 F.2d 669, 675 (10th Cir.1989).
discussed Cited as authority (rule) United States v. Torres Maldonado (2×)
1st Cir. · 1994 · signal: cf. · confidence medium
Cf. United States v. Matthews, 942 F.2d 779, 783-84 (10th Cir.1991) (affirming drug conspiracy and possession convictions and reversing conviction under section 924(c)(1) where the sole explanation for the presence of the weapons was to provide conspirators with protection on drug-selling “excursions,” and where evidence showed that defendant had not participated in any such excursions); United States v. Bruce, 939 F.2d 1053, 1055-56 (D.C.Cir.1991) (reversing conviction under section 924(c)(1) despite gun’s presence in an apartment containing drugs, on grounds that gun’s intended use w…
cited Cited as authority (rule) United States v. Lewis Nathaniel Dixon
10th Cir. · 1993 · confidence medium
Horton v. California, 496 U.S. 128, 136-37 , 110 S.Ct. 2301, 2307-08 , 110 L.Ed.2d 112 (1990); United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991).
discussed Cited as authority (rule) United States v. Samuel E. Gunning and Angela D. Gunning
7th Cir. · 1993 · confidence medium
United States v. Matthews, 942 F.2d 779, 783-784 (10th Cir.1991) (firearms found in living room); United States v. Bruce, 939 F.2d 1053, 1054-1056 (D.C.Cir.1991) (“small derringer hidden in a belt buckle stored in a paper bag alongside drugs in the pocket of a raincoat hanging in a closet”); United States v. Lyman, 892 F.2d 751, 752 (8th Cir.1989), cert. denied, 498 U.S. 810 , 111 S.Ct. 45 , 112 L.Ed.2d 21 (1990) (pistol in bag in kitchen cabinet); United States v. Feliz-Cordero, 859 F.2d 250, 253-254 (2nd Cir.1988) (pistol found in dresser drawer).
discussed Cited as authority (rule) United States v. Wendall Nicholson
10th Cir. · 1993 · confidence medium
“To prove this necessary relation, the Government’s evidence must support a finding that the defendant intended the weapon to be available for use during the drug transaction.” United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991).
cited Cited as authority (rule) United States v. Anthony Duane Vaughn
9th Cir. · 1992 · confidence medium
United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991); United States v. Smith, 918 F.2d 1501, 1509 (11th Cir.1990), cert. denied sub nom.
cited Cited as authority (rule) United States v. Richard Andrew Conner
10th Cir. · 1992 · confidence medium
United States v. McKinnell, 888 F.2d 669, 675 (10th Cir. *1174 1989); United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991).
discussed Cited as authority (rule) ca8 1992
8th Cir. · 1992 · confidence medium
U.S.S.G. § 1B1.3 illustration e; see also United States v. Knapp, 955 F.2d 566, 570-71 (8th Cir.1992) (Bright, J., concurring); Edwards, 945 F.2d at 1392 ; United States v. Matthews, 942 F.2d 779, 785 (10th Cir.1991). 57 Hooks and Sanders received small quantities of crack from Roulette to sell and smoked much of that themselves.
discussed Cited as authority (rule) United States v. Jones
8th Cir. · 1992 · confidence medium
U.S.S.G. § 1B1.3 illustration e; see also United States v. Knapp, 955 F.2d 566, 570-71 (8th Cir.1992) (Bright, J., concurring); Edwards, 945 F.2d at 1392 ; United States v. Matthews, 942 F.2d 779, 785 (10th Cir.1991).
discussed Cited as authority (rule) United States v. Donald Madrid
10th Cir. · 1992 · confidence medium
Thus, while Mr. Madrid is correct that "section 924(c) requires more than mere access to a firearm," United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991), the evidence presented by the government is sufficient to support the jury's verdict. 10 Accordingly, the judgment of the district court is AFFIRMED. * This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3 1 Mr. Madrid thus cannot argue that…
discussed Cited as authority (rule) United States v. Kyle Edmond Franks
10th Cir. · 1992 · confidence medium
"To prove this necessary relation, the Government's evidence must support a finding that the defendant intended the weapon to be available for use during the drug transaction." United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991).
discussed Cited as authority (rule) United States v. Hatheway
E.D. La. · 1992 · confidence medium
At this juncture, it is important to note that the defendant concedes that “if these firearms had been discovered pursuant to the execution of the search for drugs, that they might have been lawfully seized.” 16 Considering that the subject application requested authority to search for the purpose of seizing “controlled dangerous substances” and the warrant issued for seizure of same, there is no question but that the subject search was for the purpose of seizing drugs, and thus, the firearms seized pursuant to the execution of that search were lawfully seized. 17 In United States v. M…
discussed Cited as authority (rule) United States v. Troy T. Coleman
10th Cir. · 1991 · confidence medium
For our decisions in the appeals of the related prosecutions, see United States v. Matthews, 942 F.2d 779, 785 (10th Cir.1991) (affirming convictions for conspiracy and possession with intent to distribute cocaine base, reversing conviction for use of firearms in drug trafficking as well as sentence); United States v. Brooks, 940 F.2d 598, 601-02 (10th Cir.1991) (remanding for resen-tencing for possession of cocaine base as misde-meanant); United States v. Puryear, 940 F.2d 602, 604 (10th Cir.1991) (remanding for resen-tencing for possession of cocaine base as misde-meanant). 2 .
discussed Cited "see" State v. Jonathan Folds
N.H. · 2019 · signal: see · confidence high
See United States v. Matthews, 942 F.2d 779, 783 (10th Cir. 1991) (upholding seizure of weapons discovered while executing search warrant for drugs under plain view exception, given “the weapons’ accessibility and proximity to illegal drugs”).
cited Cited "see" United States v. Torres
10th Cir. · 1999 · signal: see · confidence high
See United States v. Matthews, 942 F.2d 779, 784 (10th Cir.1991) (“The government bears the burden of proving uncharged conduct by a preponderance of the evidence.”).
discussed Cited "see" McCarty v. State (2×)
Okla. Crim. App. · 1995 · signal: see · confidence high
See U.S. v. Matthews, 942 F.2d 779, 782 (10th Cir.1991); United States v. Garot, 801 F.2d 1241, 1244-45 (10th Cir.1986). [4] The record indicates that Appellant was additionally booked on charges stemming from outstanding traffic warrants.
discussed Cited "see" United States v. Donald Lake Simpson, United States of America v. Rodolfo Molina, Jr. (2×)
9th Cir. · 1993 · signal: see · confidence high
See United States v. Matthews, 942 F.2d 779 (10th Cir.1991); United States v. Smith, 918 F.2d 1501 (11th Cir.1990), cert. denied sub nom.; Hicks v. United States, — U.S. -, 112 S.Ct. 151 , 116 L.Ed.2d 117 (1991); United States v. Caggiano, 899 F.2d 99 (1st Cir.1990).
cited Cited "see" United States v. Bedina Coleman
10th Cir. · 1993 · signal: see · confidence high
See United States v. Matthews, 942 F.2d 779, 784 (10th Cir.1991). 4 .
cited Cited "see" United States v. Wall
E.D. Mich. · 1992 · signal: see · confidence high
See, United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991).
cited Cited "see" United States v. Robert Lee Hager
10th Cir. · 1992 · signal: see · confidence high
See United States v. Matthews, 942 F.2d 779 , 783 n. 3 (10th Cir.1991).
discussed Cited "see" ca10 1992
10th Cir. · 1992 · signal: see · confidence high
See United States v. Matthews, 942 F.2d 779, 784-85 (10th Cir.1991) (person who undertakes one-time drug deal in concert with others does not thereby assume responsibility for past misdeeds of coconspirators for sentencing purposes); United States v. Edwards, 945 F.2d 1387, 1396 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1590 , 118 L.Ed.2d 308 (1992) (defendants were convicted of a large heroin distribution conspiracy but held accountable only for reasonably foreseeable conduct for sentencing purposes; "the Government must do more than allege that a particular defendant has entered…
discussed Cited "see" United States v. Evans
10th Cir. · 1992 · signal: see · confidence high
See United States v. Matthews, 942 F.2d 779, 784-85 (10th Cir.1991) (person who undertakes one-time drug deal in concert with others does not thereby assume responsibility for past misdeeds of coconspirators for sentencing purposes); United States v. Edwards, 945 F.2d 1387, 1396 (7th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1590 , 118 L.Ed.2d 308 (1992) (defendants were convicted of a large heroin distribution conspiracy but held accountable only for reasonably foreseeable conduct for sentencing purposes; “the Government must do more than allege that- a particular defendant has enter…
discussed Cited "see, e.g." United States v. McFadden (2×)
1st Cir. · 1994 · signal: see also · confidence medium
See also, e.g., United States v. Matthews, 942 F.2d 779, 783-84 (10th Cir.1991) (reversing § 924(c) conviction where, despite presence of weapons in plain view in an apartment containing drugs, evidence did not suggest that defendant “intended to avail himself of the firearms”); United States v. Bruce, 939 F.2d 1053, 1055-56 (D.C.Cir.1991) (reversing § 924(c) conviction because presence of loaded gun in one pocket and drugs in other pockets of defendant’s raincoat indicated intent to use the gun in connection with future distribution, not protection of present possession).
discussed Cited "see, e.g." United States v. McFadden
1st Cir. · 1994 · signal: see also · confidence medium
See also, e.g., ________ ____ United States v. Matthews, 942 F.2d 779, 783-84 (10th Cir. _____________ ________ 1991) (reversing 924(c) conviction where, despite presence of weapons in plain view in an apartment containing drugs, evidence did not suggest that defendant "intended to avail himself of the firearms"); United States v. Bruce, 939 F.2d _____________ _____ 1053, 1055-56 (D.C.
cited Cited "see, e.g." United States v. Collado
unknown court · 1992 · signal: see also · confidence medium
See also United States v. Matthews, 942 F.2d 779, 784 (10th Cir.1991); United States v. Miranda-Ortiz, 926 F.2d 172, 178 (2d Cir.), cert. denied, — U.S. -, 112 S.Ct. 347 , 116 L.Ed.2d 287 (1991).
discussed Cited "see, e.g." United States v. Alexander Scott Williams
10th Cir. · 1992 · signal: see, e.g. · confidence medium
See, e.g., United States v. Matthews, 942 F.2d 779, 784 (10th Cir.1991); United States v. Williams, 897 F.2d 1034, 1041 (10th Cir.1990), cert. denied, 111 S.Ct. 2064 (1991) ("As a member of the ongoing conspiracy, Williams is subject to a sentence calculated on a base offense level determined by reference to the actual quantity of drugs involved in the conspiracy provided that she knew or should have known that at least such amount was involved.").
discussed Cited "see, e.g." United States v. Gail Knapp (2×)
8th Cir. · 1992 · signal: see also · confidence medium
See also United States v. Matthews, 942 F.2d 779, 784-85 (10th Cir.1991) (conspiracy sentence may only be based upon quantities of drug that late-entering conspirator knew or should have known the conspiracy distributed within scope of late-entrant’s agreement); United States v. North, 900 F.2d 131, 133-34 (8th Cir.1990) (defendant only responsible for activities within scope of limited conspiracy); U.S.S.G. § 1B1.3, comment, (n. 1(e)).
UNITED STATES of America, Plaintiff-Appellee,
v.
Byron W. MATTHEWS, Defendant-Appellant
90-5157.
Court of Appeals for the Tenth Circuit.
Aug 21, 1991.
942 F.2d 779
James L. Swartz, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him on the brief), Tulsa, Okl., for plaintiff-appellee., Randal D. Morley, Tulsa, Okl., for defendant-appellant.
Holloway, Bright, Seymour.
Cited by 55 opinions  |  Published
BRIGHT, Senior Circuit Judge.

Byron Matthews appeals his convictions and Guidelines sentence for conspiracy, possession with intent to distribute cocaine base, and use of a firearm in a drug trafficking offense. See 21 U.S.C. §§ 846, 841(a)(1) (1988); 18 U.S.C. § 924(c)(1) (1988) (amended 1990). Matthews disputes the voluntariness of his confession, the validity of the Government’s search warrant and the sufficiency of the evidence for the firearms count. Matthews further contends that the court erroneously enhanced his sentence based on a kilogram of cocaine base that his co-conspirators acquired before he entered the conspiracy. We affirm Matthews’ convictions for conspiracy and drug distribution, but reverse his conviction on the firearms count. We also reverse Matthews’ sentence insofar as it includes the additional kilogram of cocaine base.

I.

The indictment charged that on March 10-11, 1989, Matthews conspired with members of an ongoing cocaine conspiracy to sell three ounces of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846. The indictment further charged Matthews individually with planning to sell the above cocaine amount and with using firearms in connection with this offense in violation of 18 U.S.C. § 924(c).

At trial, the Government relied heavily on the testimony of Bernard Saunders, an unindicted cooperating witness. In December 1988, a California drug distributor asked Saunders to help him set up operations in Tulsa, Oklahoma. Thereafter, Saunders rented a Tulsa apartment, which eventually became a “safe house” for an ongoing drug conspiracy.

According to Saunders, Matthews and another party, Troy Coleman, arrived from California late in the evening on March 10, 1989. Saunders expected Coleman, but had never seen Matthews in Tulsa before. The two men had two to three ounces of crack cocaine with them. They met with members of the conspiracy and agreed to help sell the cocaine the next morning. However, Saunders, who worked both sides, tipped off the police.

Within hours, the police obtained a warrant and raided the apartment. During the raid, the police found Matthews in a bathroom attempting to flush fourteen grams of cocaine base down the toilet. The police recovered roughly two more ounces of cocaine base from other locations in the apartment. The police also confiscated two[*782] pistols from beside a TV stand in the living room. The pistols could be seen by a person sitting on the floor watching television. According to Saunders, members of the conspiracy routinely took the weapons with them on drug-selling excursions in order to protect the drugs and cash they carried.

After receiving Miranda warnings, Matthews agreed to make a statement. Matthews told the officers that he had been in California the previous night when Coleman approached him and asked to be driven to Tulsa. Coleman promised Matthews an easy $1,500. Once in Tulsa, Matthews met the other conspirators and agreed to help distribute the cocaine base in question.

The jury convicted Matthews on all counts. At sentencing, the district court determined that the conspiracy Matthews joined had previously distributed a kilogram of cocaine base. The court attributed this amount to Matthews under the Sentencing Guidelines’ relevant conduct provisions, U.S.S.G. § lB1.3(a)(2), and imposed a 360-month sentence.

This appeal followed.

II.

A. Confession

Matthews contends that the statements he made to police on the day of arrest should have been suppressed as involuntary. [1] He argues that, among other things, the officers used trickery and false promises to induce his statements. We disagree.

The fifth amendment’s privilege against self-incrimination prohibits the admission of incriminating statements where governmental acts, threats or promises cause the defendant’s will to become overborne. United States v. Fountain, 776 F.2d 878, 885 (10th Cir.1985). We must look at the totality of the circumstances to determine whether this happened. Arizona v. Fulminante, — U.S. -, 111 S.Ct. 1246, 1251-52, 113 L.Ed.2d 302 (1991). The issue presents a legal question, requiring de novo review. See id. 111 S.Ct. at 1252.

After reviewing the record, we conclude that Matthews made the statements voluntarily. The officers testified that Matthews received Miranda warnings but nevertheless offered to cooperate. The officers also testified that they agreed to release Matthews pending further investigation if he accompanied them to the Tulsa airport and identified certain drug operators believed to be arriving from California later that day. The officers subsequently released Matthews even though he remained unable to make the requisite identification at the airport. Finally, the officers testified that they assured Matthews that no state charges would be filed against him and that federal charges probably would not ensue if Matthews continued to cooperate with authorities. After his release, however, Matthews called the officers only twice in a three-month span and provided no further information. As Matthews failed to keep his end of the bargain, he cannot now claim entitlement to its benefits. See Fountain, 776 F.2d at 884.

B. Search Warrant

Matthews next argues that the firearms seized from the living room of the apartment must be suppressed as exceeding the scope of the warrant. [2] He points out that the police had reason to suspect that firearms would be present, yet made no request to include them in the warrant. The Government concedes that the warrant, which authorized seizure of “cocaine, fruits, instrumentalities, monies, notations relating to the offense thereof, [and] evidence that establishes occupancy or control[*783] of the residence," failed to describe the firearms with particularity. The Government nevertheless contends that the officers justifiably seized the weapons after discovering them in plain view. Based on the Supreme Court's recent analysis in Horton v. California, - U.S. -, 110 S.Ct. 2301, 2305-11, 110 L.Ed.2d 112 (1990), we agree.

In Horton, the Supreme Court revisited the plain-view doctrine. It dismissed as dicta a previous statement in Coolidge v. New Hampshire, 403 U.S. 443, 469, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 564 (1971) (Stewart, J.) (plurality opinion), requiring the discovery of evidence in plain view to be inadvertent. Horton, 110 S.Ct. at 2308. The Court nonetheless embraced Coolidge insofar as it held that plain view alone can never justify a warrantless seizure and went on to impose two conditions. Id. at 2307-08. First, the object's incriminating character must be immediately apparent. Id. at 2308. Second, the officer must have lawful access to the object itself. Id.

We think the seizure in this case satisfied both conditions. Here, the officers came across the weapons during the course of a lawful search for illegal drugs. Moreover, it has become common knowledge that drug operators frequently acquire weapons for use in connection with drug activities. Hence, we think that the weapons' accessibility and proximity to illegal drugs satisfy the condition that their incriminating character be immediately apparent to the officers.

C. Sufficiency of the Evidence

For his third point, Matthews argues a failure of proof on the firearms count. See 18 U.S.C. § 924(c)(1). Matthews contends that no rational jury could find beyond a reasonable doubt that he used the firearms found in the living room during and in relation to the charged drug trafficking offense. Although this case presents a close issue, we agree.

Count III of the indictment charges that Matthews "did, during and in relation to a drug trafficking crime, to wit: Possession with Intent to Distribute a Controlled Substance, use or carry firearms." (Citation omitted). In United States v. McKinnell, 888 F.2d 669, 675 (10th Cir.1989), we held that a defendant "uses" a firearm under section 924(c)(1) where the firearm (1) is readily accessible, (2) forms an integral part of the defendant's criminal undertaking, and (3) increases the likelihood of success for that undertaking. [3]

To be sure, the officers' discovery of the firearms in plain view suggests they were readily accessible. However, section 924(c) requires more than mere access to a firearm. United States v. Sullivan, 919 F.2d 1403, 1432 & n. 45 (10th Cir.1990) (2-1 decision). The firearm also must be used "during and in relation to" the charged drug trafficking offense. Id. To prove this necessary relation, the Government's evidence must support a finding that the defendant intended the weapon to be available for use during the drug transaction. United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir.1988); cf. S.Rep. No. 225, 98th Cong., 1st Sess. 1, 314 n. 10 (1983) ("Evidence that the defendant had a gun in his pocket but did not display it, or refer to it, could nevertheless support a conviction for `carrying' a firearm in relation to the crime if from the circumstances or otherwise it could be found that the defendant intended to use the gun if a contingency arose or to make his escape."), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3492 n. 10.

We see no evidence here that Matthews intended to avail himself of the firearms in question. The record is devoid of evidence that Matthews ever handled the weapons or saw another conspirator do so in connection with cocaine activities. When the police raided the apartment, the weapons lay next to the TV-not in the hands of Matthews or any other conspirator. Moreover, the sole explanation for the presence of the weapons comes from Saunders' testimony that the firearms provided conspira[*784] tors with protection on drug-selling excursions. Yet, Matthews never went on a conspiracy drug-selling excursion.

Moreover, as to the second factor, we remain unable to locate any proof that the firearms formed an integral part of the criminal activity Matthews agreed to undertake. By Saunders’ admission, Matthews had never been in town until his unexpected arrival the night before the raid. The record contains no indication that the conspirators ever discussed the weapons in Matthews’ presence, or that Matthews knew their practice of carrying weapons during drug excursions. Furthermore, Saunders freely admitted that the firearms had been brought in at least two weeks prior to Matthews’ arrival.

Under these circumstances, we think the Government failed to prove that Matthews intended or approved the use of firearms in connection with the criminal activity he undertook. The facts of Matthews’ case are even more compelling than in Sullivan, supra, where we held that Mary Sullivan’s mere constructive possession could not support a conviction for use of a firearm in drug trafficking. 919 F.2d at 1432. In that case, the evidence showed that Sullivan participated in a drug manufacturing conspiracy operating, in part, out of her home. The evidence further showed that Sullivan had seen her husband, also a conspirator, handling ammunition for the weapon in question, and that the weapon was stored in a cabinet in their master bedroom. On this evidence, we concluded that Mary Sullivan had constructive possession of the firearm, but held that this factor, without more, could not sustain a conviction for use of a firearm for a drug trafficking offense.

Like Sullivan, Matthews played no role in securing the weapons in question, and nothing suggests that he handled them. Additionally, Matthews joined the conspiracy only hours earlier and was a mere visitor to the residence where the police found the weapons and contraband. Accordingly, we conclude that the evidence cannot sustain Matthews’ conviction on the firearms count.

D. Sentencing Consideration

The Government seeks to hold Matthews accountable for approximately one kilogram of crack cocaine that the conspiracy distributed before Matthews joined it. [4] The Government contends that the Guidelines’ relevant conduct provisions, U.S.S.G. § 1B1.3(a)(2), make Matthews responsible for all prior conduct of the conspiracy. We must agree with Matthews, however, that the relevant conduct provisions do not reach this far.

The Government bears the burden of proving uncharged conduct by a preponderance of the evidence. United States v. Russell, 905 F.2d 1439, 1441 (10th Cir.1990). As a late-entering co-conspirator, Matthews can be sentenced only for past quantities that he knew or should have known the conspiracy distributed. United States v. Miranda-Ortiz, 926 F.2d 172, 178 (2d Cir.1991); see also United States v. Sanders, 929 F.2d 1466, 1475 (10th Cir.) (drug quantity limited to time of marriage for wife who joined husband’s heroin conspiracy), cert. denied, — U.S. -, 112 S.Ct. 143, — L.Ed.2d - (1991); United States v. Willard, 909 F.2d 780, 781 (4th Cir.1990) (defendant responsible only for known or reasonably foreseeable criminal conduct in furtherance of conspiracy); cf . United States v. Wood, 924 F.2d 399, 404-05 (1st Cir.1991) (conspiracy defendant’s status as after-the-fact beneficiary does not turn wife’s independent drug transaction into relevant conduct). In addition, the foreseeability of past misconduct must be evaluated in connection with the criminal activity Matthews agreed to un-

[*785] dertake. See U.S.S.G. § 1B1.3(a)(2), comment. (n. 1).

After a thorough review, we see no indication that Matthews received information on the conspiracy’s prior drug dealings. Moreover, the evidence strongly suggests that the scope of Matthews’ agreement was narrow. He came into town to make a fast buck by selling two to three ounces of crack cocaine. Nothing in the record shows that the parties contemplated any more extensive relationship than this. We think it implausible that a person who undertakes a one-time drug deal in concert with others thereby assumes responsibility for the entire past misdeeds of his or her co-conspirators. Accord United States v. North, 900 F.2d 131, 133-34 (8th Cir.1990) (where conspiracy has limited objective, defendant not responsible for co-conspirator’s independent drug activities); U.S.S.G. § 1B1.3, comment, (n. 1(e)).

Accordingly, Matthews may be sentenced only for the two or three ounces he agreed to distribute and not the amounts sold without Matthews’ knowledge or agreement prior to his entry into the conspiracy. In view of our holding on this point, we need not address Matthews’ remaining points of contention with the district court’s drug quantity calculation.

III.

We affirm Matthews’ convictions for conspiracy and for possession with intent to distribute cocaine base. However, we reverse Matthews’ conviction for use of firearms during and in relation to drug trafficking. We also reverse Matthews’ sentence insofar as it includes a kilogram of cocaine base distributed prior to his joining the conspiracy and remand for resentenc-ing based only on the two to three ounces supported by the record.

IT IS SO ORDERED.

1

. Matthews also argues that his statements should be suppressed as the product of an unlawful search, arrest and detention. These arguments cannot be supported on the facts of this case.

2

. Matthews also attacks a police search of his automobile, parked in the apartment complex parking lot. The Government admits that the warrant contained no grant of authority to search Matthews’ vehicle. Nevertheless, Matthews suffered no prejudice because the Government did not introduce any items seized from Matthews' vehicle into evidence at trial.

3

. No one contends that Matthews actually carried a firearm~ Thus, we will confine our discussion to whether the Government has proved "use" under the statute.

4

. Additionally, the pre-sentence report (PSR) stated: "Investigators also learned that the co-conspirators were awaiting a one kilogram delivery of crack cocaine from Alonzo Smith." However, the district court did not rely on this statement in making its findings at sentencing. Moreover, the Government made no serious attempt to prove the statement’s accuracy, or to urge this quantity as an alternate basis for af-firmance on appeal. Consequently, we need not address the issue of potential incoming cocaine in our discussion.