*2 JONES, Before MARTIN and Circuit Judges, ENGEL, Senior Circuit Judge. MARTIN, Jr.,
BOYCE F. Circuit Judge. III, Eugene
Herman appeals sentence imposed following guilty plea his possession of cocaine intent distribute in violation of 21 U.S.C. 841(a)(1). Specifically, Garner contests district two-level enhancement offense for base reasons, firearm. following For the vacate Garner’s sentence remand this the evidence. United States derance of for resentenc- court district to the matter Cir.1991) Feinman, opinion. ing consistent Silverman, 889 (citing States v. United enforcement law January On (6th Cir.1989)). We review *3 1535 F.2d Drug County Mahoning from the officers un findings which court’s factual district a pursu- home Garner’s searched Task Force provi guideline of a application derlie the officers The warrant. a valid search ant to Per v. clear error. United States sion for in the base- located safes two uncovered (6th Cir.), 45, de cert. ez, F.2d 47-48 871 safe, In the home. of Garner’s ment 3227, 910, 106 nied, 109 S.Ct. 492 U.S. cocaine, kilograms of found three officers However, (1989). whether 576 L.Ed.2d In the jewelry. cash, some $19,348 in by the district as determined those facts safe, approximately twelve located another particu application of a the court warrant .22 cali- an unloaded they found away, feet legal purely a provision is guideline lar Derringer. No ammunition single-shot ber by this novo question and is reviewed de in present Garner’s weapon was for this Sanchez, 928 F.2d v. court. United States 1989, 10, was August Garner home. On Cir.1991) (6th (quoting United 1458 Jury for Federal Grand by the indicted (2d Stroud, 507 893 F.2d States kilograms cocaine of of three possession Cir.1990)). not dis appeal, Garner does On 21 in of it violation with intent distribute by findings made of fact pute specific the 30, 1990, 841(a)(1). March On U.S.C. § court, challenges rather he but the district this offense. plead guilty Garner facts; thus significance of these legal the 28, 1989, consent- Garner September On See, plenary. e.g., Braxton our is review re- presentence aof preparation the ed to — U.S. -, -, 111 States, v. United placed his report presentence port. The (1991) 1854, 1859, 385 114 L.Ed.2d S.Ct. twenty-eight. Pursu- level base offense finding a of between the distinction (noting the Federal Sentenc- 2D1.1(b)(1)of ant to § law). of fact and a conclusion Guidelines, level base offense ing a firearm points because increased two was 2Dl.l(b)(l) the Federal of Section of during the commission possessed was a de provides that Sentencing Guidelines trafficking offense. drug the be increased offense level fendant’s base chal- dur sentencing hearing, possession Garner of a firearm his levels for At two points drug to his of the two offense. lenged ing the addition commission of the presence for the of the argues offense base level the Garner 2D1.1(b)(1) argued that handgun Garner in the locked safe firearm. § unloaded no “pos there were bul- inapplicable because the level of was does not rise to basement found, gun gun the lets for the of the of sesspon] during commission it was readily to Garner because by accessible of contemplated fense” as § safe, not the gun found was main Specifically, Garner the Guidelines. drug The type by carried dealers. usual 3 to section application note tains that arguments. rejected these district court enhance 2D1.1(b)(1)precludes a two-level acceptance two-point reduction After pro Application note 3 case. ment his level responsibility, Garner’s offense of vides, part: in relevant twenty-eight, which be determined weapon posses- enhancement for imprison- guideline range of provides for a danger of vio- reflects increased sion months. Garner ment between 78 and 97 drug possess traffickers lence when im- was sentenced to a 78-month term ap- adjustment should be weapons. The supervised prisonment years four weapon present, unless plied if the Thereafter, timely appeal- release. improbable that clearly ed. For offense. was connected not be would example, the enhancement applicability cases where defendant, his arrested at contested, if the applied provision is an enhancement hunting residence, rifle had an unloaded government the burden establish bears closet. ing prepon factors the enhancement Sentencing Commission, McLaughlin States, v. United 476 U.S. Manual, 2D1.1, Guidelines comment. 17-18, 106 S.Ct. (1986)). L.Ed.2d 15 (n.3) (Nov.1990). argues Gamer also Luster, See United States v. handgun unloaded found in the safe is Cir.1990)(reaching the same con analogous hypothetical to the used in the clusion as the court). Burke Notwith application therefore, note and it was standing decisions, we feel that the “clearly improbable” that the handgun dis- cumulative effect of these factors compels covered the safe was connected to his the conclusion that it is clearly improbable drug agree. offense. We found Garner’s home was There are number of present factors in connected with his offense.
this case to make the district appli- It is important emphasize to 2D1.1(b)(1) cation of that problematic. First, § this is not a gun government
the
case where the
which was found in the safe is not
has failed to
the normal
meet its
type of firearm
burden of proof
of
associated
establishing
drug activity.
gun
The
the
antique
applicability
was an
of
2D1.1(b)(1).
style single-shot Derringer.
fact,
As
In
this court
§
Gar-
noted in San
chez,
ner
sentencing
indicated at the
“once
hearing
government
that
the
proves a defen
gun
the
was purchased at a flea
in possession
market as dant was
of weapon,
a
its
a
Furthermore,
collector’s piece.
gun
the
burden is satisfied.” 928 F.2d
at
was not
any
loaded nor was
ammunition See also United
Duncan,
States v.
918
—
gun
for the
found Garner’s home. Addi-
(6th
F.2d
Cir.1990),
647
denied,
cert.
tionally,
gun
the
was locked in a safe which U.S. -,
111 S.Ct.
114
461
L.Ed.2d
neither
any
contained
drug
indicia
para-
of
(1991); United
Snyder,
States v.
phernalia nor was located
—
within sufficient
(6th Cir.1990),
300
denied,
cert.
U.S.
proximity to raise an inference of related-
-,
111 S.Ct.
(1991).
weapon weapon itself been for- the then come Had offense, can to the offense. defendant or had the to demon- evidence defendant additional more accessible ward not connected substitution capable of found been that bullets strate applica- offense, precluding the Derrin- thus ammunition for the normal 2D1.1(b)(1). I however, quite I am certain tion ger, judge in the trial agreed with have would in this case to circumstances find the We the enhancement. applying hypothetical in to those analogous be First of commentary to the Guidelines. Secondly, unloaded. all, safe, similar kept in a locked gun hypothetical; the closet principle likely one would being place where legal purpose. for a gun possessed store *5 hypo- hunting rifle in the Thirdly, like type nor-
thetical, gun is America, activity. Plaintiff- Under STATES mally associated with UNITED (90-3421), circumstances, Appellant dis- find that the Cross Plaintiff-Appellee, application of trict we remand Accordingly, improper. for resentenc- district court this case to the WILLIAMS, A. Robert this opinion. ing consistent Defendant-Appellant (90-3239), Judge, ENGEL, Circuit Senior concurring. Anderson, Defendant-Appellant Althea in this unique circumstances Given the Appellee. (90-3305), Defendant-Cross concur, I that nor- although I believe case 90-3239, 90-3421. 90-3305 and Nos. I leave the trial a case would mally in such A judge’s undisturbed. determinations Appeals, Court pistol and the defen- Derringer is a small Sixth Circuit. it, construc- possess fact albeit dant did in Argued March Derringer with equate I tively. cannot very I that there are rifle and doubt July deer Decided sen- many hunters who would. deer Application Note
tencing commission relatively innocent to exclude a trying from enhancement
class of owners as guidelines and so far I
provision
know, Derringer always designed for Fur- human confrontation. potential
use in evi- much
thermore was disturbed I time of his showed
dence which
arrest, possessed two 9mm defendant suggests pocket. alone
bullets This firearms on predisposition
a certain toward At the same part the defendant. virtually it is certain I
time understand believe that a possibly
that no could Der- fit into .22 caliber could
9mm bullet
ringer. the evidence Thus antique collector’s item and its loca-
was an