LAY, Chief Judge.
Stephan Gerald Koonce (Koonce) was convicted on one count of unlawfully, knowingly, and intentionally distributing or causing to be distributed or attempting to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1982). He was sentenced to twenty years' imprisonment with five years' supervised release and fined $50,000. This appeal followed.
Koonce appeals on several grounds: (1) there was insufficient evidence to sustain the guilty verdict; (2) the jury instructions regarding attempt were in error; (3) evidence of prior bad acts was erroneously admitted; (4) the Federal Sentencing Guidelines (Guidelines), 18 U.S.C. § 3551,
In the late 1980's, the Minnesota Bureau of Criminal Apprehension conducted an investigation of methamphetamine trafficking in that state. As a result of this investigation, Darryl Petschen was prosecuted and pled guilty to charges of illegally distributing methamphetamine. In November of 1987, Petschen agreed to identify his methamphetamine supplier. Petschen named Stephan Gerald Koonce as the supplier and agreed to arrange a methamphetamine purchase from Koonce. As a part of the set-up, Petschen made a series of tape-recorded phone calls to Koonce at his residence in Monticello, Utah. During the calls, Petschen asked Koonce to mail methamphetamine to him. Petschen also sent a letter to Koonce requesting that two pounds of methamphetamine be mailed to a designated post office box address in Sioux Falls, South Dakota, and that it be addressed to a "D.P. Olsen." In reality, the box had been rented by Duane Dahl, an agent for the South Dakota Division of Criminal Investigation.
A package of methamphetamine arrived
Following the package's arrival, law enforcement officials obtained a search warrant for Koonce's Utah residence. On February 12, 1988, the search warrant was executed. An additional 963 grams of methamphetamine were found during the search. Petschen's letter to Koonce was also discovered in Koonce's briefcase and a large number of firearms was found.
We find no merit to the substantive challenges to Koonce's conviction. First, regarding the sufficiency of the evidence necessary to sustain Koonce's conviction, we must view the evidence in the light most favorable to the verdict, accepting all reasonable inferences that logically arise. See United States v. Matlock, 773 F.2d 227, 229 (8th Cir.1985) (citing United States v. Grego, 724 F.2d 701, 704 (8th Cir.1984)). Some of the evidence supporting the inferences of guilt includes: Koonce's fingerprint found on the Sioux Falls methamphetamine package, the multiple tape recordings referring to prior and pending drug deals between the two, Petschen's letter requesting Koonce to send methamphetamine to him under the name D.P. Olsen at the particular Sioux Falls post office box, and the fact that the package was sent to the name at that address. Further, the Government corroborated many of Petschen's statements, and thus, the jury was entitled to credit Petschen's testimony. We find that despite the fact that no one actually observed Koonce mailing the package, there was sufficient circumstantial evidence to sustain the conviction. Second, taking the jury instructions as a whole, we find that no prejudicial error resulted. See United States v. Varner, 748 F.2d 925, 927 (4th Cir.1984). Third, under Federal Rule of Evidence 404(b) evidence of other bad acts is "admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, [or] identity, * * *." As the challenged evidence (the 963 grams of methamphetamine seized at Koonce's Utah residence) arguably concerned knowledge, intent and identity, we thus cannot say that in admitting this evidence, the trial court abused its broad discretion. See United States v. Lanier, 838 F.2d 281, 285 (8th Cir.1988).
Koonce also raises two challenges to the Federal Sentencing Guidelines, 18
The Guidelines provide:
Guideline § 1B1.3(a)(1) (emphasis added). The Guidelines § 1B1.3(a)(2) also states that: "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction" shall be considered as conduct "relevant to determining the applicable guideline range[.]" In determining the base offense level, the district court found that the methamphetamine weight should include (1) that found in the package mailed to Sioux Falls (443 grams); (2) that seized in the search of Koonce's Utah home (963 grams); and (3) a portion of the total weight
Before the district court could calculate the base offense level, however, it was necessary to make a factual finding as to whether the methamphetamine was "Methamphetamine" (D- or Dextro-methamphetamine) or "L-Methamphetamine/Levo-methamphetamine."
On the basis of the total amount of [Dextro-] methamphetamine, the court calculated Koonce's base offense level as 36.
Koonce's final challenge to his sentence concerns the court's two-level enhancement for possession of a firearm. Guideline § 2D1.1(b)(1) states: "If a firearm or other dangerous weapon was possessed during commission of the offense, increase by 2 levels." The Application Notes provide further guidance:
Guidelines § 2D1.1 Application Note 3. We also reiterate that whether or not a gun was "present" (in the sense that it justified enhancement) is a factual determination. As such, we must affirm the district court if its finding is not clearly erroneous. Other courts have addressed this issue. In United States v. Otero, 868 F.2d 1412 (5th Cir.1989) enhancement for use or possession of a firearm was upheld. In that case, the defendant negotiated and completed a cocaine sale to an undercover agent. The sale occurred in the defendant's hotel room, where additional cocaine was found. Firearms were also found in the defendant's van. There, the court of appeals upheld "the court's factual conclusion that Otero constructively possessed a weapon during the commission of the offense [as it was] not clearly erroneous." Id. at 1415. Cf. United States v. Hewin, 877 F.2d 3 (5th Cir.1989); United States v. White, 875 F.2d 427
In the instant case, a large number of firearms was discovered during the search of Koonce's Utah residence. There were several loaded firearms found in Koonce's pickup truck in which was also found Koonce's briefcase. The court acknowledged that "[c]ertainly, there wasn't anyone present with Mr. Koonce at the time the drugs involved here were mailed and so there is certainly no way of knowing whether at that time he had in his possession a firearm." Sentencing Transcript at 57. The court continued: "It is the view of the Court in interpreting these Guidelines that it is the clear intention of the Guidelines to provide that any drug dealer who possesses firearms in connection with his drug affairs creates an additional hazard and that additional penalties should be proscribed therefor." Id. The district court thus allowed for a two-level enhancement of Koonce's sentence, to a 36. Id. at 58. We stress that the offense of conviction was the distribution (not merely the mailing of the package) of methamphetamine. Given that (1) tape similar to that found on the mailed parcel of methamphetamine was found in Koonce's bedroom; (2) Koonce's pickup truck had loaded firearms