Appeals from the United States District Court for the Eastern District of Wisconsin. No. 01 CR 149-Charles N. Clevert, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge
SUBMITTED AND ARGUED SEPTEMBER 4, 2002 *fn1
Stanley Starks and Latray McMurtry were indicted by a federal grand jury on (1) possession with intent to distribute more than 50 grams of cocaine base and (2) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Starks pleaded guilty to the cocaine-base charge. McMurtry, however, went to trial, where he was found guilty on both counts. McMurtry appeals his conviction claiming there was insufficient evidence for the jury to conclude that he possessed the drugs. Both Starks and McMurtry ap-peal the district court's two-level sentence enhancement under the U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) for possessing a firearm during the commission of a drug-related offense. Because the evidence was sufficient to establish that McMurtry was in possession of the drugs and that weapons were present and connected to the underlying offense, we affirm both McMurtry's conviction and the defendants' sentences.
For at least forty-five minutes on July 17, 2001, DEA agents Carol Mascari and Janene Spitaletto conducted surveillance before executing a search warrant at a suspected crack house at 3724 North 27th Street in Milwaukee, Wisconsin. In the course of their surveillance, agents Mascari and Spitaletto saw no one enter or leave the house. They did, however, watch as one woman came to the front door and waited a few seconds before she turned and left.
Additional DEA agents arrived on the scene in order to execute the no-knock warrant. With two hits of a concrete-reinforced steel battering ram, the agents broke down the front door, announced their presence, and gained entry to the house.
Once inside, DEA agent James Krueger saw McMurtry getting up from the living-room couch, and Starks standing at a dining-room table littered with drugs and drug paraphernalia. Seeing the agents, both defendants broke and ran through the dining room to the back of the house. Agent Krueger pursued them and found the defendants hiding in a back-bedroom closet. On that closet's top shelf, agents later discovered a single shoebox containing a loaded semi-automatic handgun. Scattered about the floor of the bedroom was approximately $200 to $300 in small bills.
After subduing the defendants, agents conducted a search of the entire house, which revealed more drugs and guns. Underneath the couch where McMurtry had been sitting, agents recovered a loaded revolver and a cellular phone. Within arm's reach of the couch on a television stand, agents recovered seventeen additional rounds of ammunition and another cellular phone. And about eight feet from the couch, between it and the dining-room table where Starks had been standing, was a paper plate full of "wet" crack cocaine sitting on a chair, drying with the aid of a box fan. On or near the dining-room table, agents recovered powder cocaine, more crack cocaine, and drug-manufacturing materials including a gram scale, a razor blade, knotted sandwich bags, and gem packs.*fn2 From the drawer of a nearby dining-room cabinet, agents removed another loaded handgun and a box of ammunition. In the kitchen, agents found another gram scale, a couple of hot plates, a glass beaker, and a box of baking soda. All told, agents recovered three loaded handguns, 116 grams of crack cocaine, 210 grams of powder cocaine, and the assorted drug-manufacturing paraphernalia from the house.
Apart from the drugs, guns, and paraphernalia, agents found little else. They found no bedroom furniture, no food in the kitchen, and no clothes in the closets. The kitchen door was fortified with a 2x4 and its window rigged with a sliding cardboard peephole device so that the occupants could see who was at the door without being identified themselves. The only personal effects recovered from the house were Starks's driver's license, which was found next to a pile of crack cocaine on the dining-room table, and a cardboard box containing a pair of Wisconsin license plates registered to McMurtry.
At McMurtry's trial, DEA agents testified that the drugs, guns, and paraphernalia coupled with the house's condition at the time of the search indicated that there was an active narcotics-manufacturing operation in progress at 3724 North 27th Street. Agent Mascari testified that the beaker, hot plate, and baking soda found in the kitchen were being used to "cook up" the cocaine powder in order to make crack cocaine. The plate of "wet" crack cocaine sitting on a chair was being dried by the nearby box fan so that it could later be weighed, divided, and bagged for sale. She testified that the gram scales were being used to weigh out tenth-of-a-gram packages of crack cocaine, which were to be packaged for sale in the gem packs for about ten to twenty dollars each. Agents testified that the fortified back door and the placement of weapons throughout the house were a common feature of drug houses, and in this case were meant to protect the house-and, more specifically, the approximately $15,000 to $20,000 worth of drugs present there -- from robbery. In short, the uncontested testimony given at trial established that this was a crack house with an active narcotics manufacturing operation in progress at the time of search.
On cross-examination, however, the DEA agents admitted that no one saw McMurtry cooking up, cutting, or packaging crack cocaine. They admitted that McMurtry's fingerprints were not recovered from any of the items found in the house. And although they estimated that the drugs found on the premises were worth as much as $20,000, they admitted McMurtry when searched had only two dollars in his pockets. The government, moreover, introduced no evidence McMurtry occupied, leased, or owned the property. In fact, the search warrant identified only "Romel LNU" (Last Name Unknown) as the occupant of the premises -- there was some testimony that the Romel alias referred to Starks.
Citing these evidentiary issues, McMurtry argued that the government had failed in its burden of proof and, thus, put on no affirmative defense. At the conclusion of the evidence, the district-court judge announced that he was inclined to rule that the evidence was insufficient to go to the jury on the element of possession, but after taking briefs and hearing from both parties the following morning, he ruled otherwise and submitted the case to the jury, who returned guilty verdicts on both counts. At sentencing, McMurtry received concurrent 210-month sentences. He raised no objections at his sentencing hearing.
McMurtry appeals his conviction arguing that the government's proof merely established his presence at the house and was insufficient for the jury to conclude beyond a reasonable doubt that he possessed any of the drugs recovered there. For much the same reason, he also appeals his two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of weapons during a drug-related offense.
Starks, meanwhile, pleaded guilty at the outset to one count of possession with intent to distribute fifty grams of cocaine base. At sentencing, however, he objected to his being assessed a two-level increase under § 2D1.1(b)(1) of the sentencing guidelines for possession of a firearm or other dangerous weapon. The district court disagreed, finding that Starks failed to show that it was clearly improbable that the guns were connected with the offense. Since the government's proof that the defendants constructively possessed weapons remained unrebutted, the court applied the enhancement and imposed a ...