Stanley Starks and Latray MeMurtry 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. MeMurtry, however, went to trial, where he was found guilty on both counts. MeMurtry appeals his conviction claiming there was insufficient evidence for the jury to conclude that he possessed the drugs. Both Starks and MeMurtry appeal 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 MeMurtry was in possession of the drugs and that weapons were present and connected to the underlying offense, we affirm both McMurtrys conviction and the defendants’ sentences.
I. HISTORY
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 Mas-cari 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 MeMurtry getting up from the living-room couch, and Starks standing at a dining-room table littered with drugs and drug paraphernalia. Seeing the agents, *1020 both defendants broke and ran through the dining room to the back of the house. Agent Krueger pursued them and found the defendаnts 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 phоne. 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. 1 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 platеs, 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 packag *1021 ing 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 pockеts. The government, moreover, introduced no evidence McMur-try 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, McMur-try 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. § 2Dl.l(b)(l) 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 135-month sentence. Starks retained his right to appeal, and does so here, arguing that the district court clearly erred in applying the two-level enhancement.
The defendants’ cases were consolidated on appeal. We address first McMurtry’s sufficiency-of-evidence challenge before turning to analyze both of the defendants’ sentence enhancements.
II. ANALYSIS
A. Sufficiency of Evidence
We review sufficiency-of-evidence questions “in the light most favorable to the government and ask whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.”
United States v. Richardson,
To sustain a conviction under 21 U.S.C. § 841(a)(1) the government must show that the. defendant (1) knowingly or intentionally possessed cocaine (2) with the intent to distribute it (3) while knowing it was a controlled substance.
United States v. Windom,
A defendant need not be caught red-handed in order to satisfy the possession element.
United States v. Martinez,
When employing the constructive-possession doctrine, however, courts must be mindful not to sweep within the doctrine’s purview the innocent bystander who is merely present while others engage in illegal drug activity. To avoid a tendency towards guilt by association, courts must attempt to distinguish the true possessor from the ordinary bystander.
Windom,
McMurtry argues that the government failed to introduce any evidence that he possessed cocaine or cocaine base. All that the evidence establishes, he claims, was that he happened to be present at the house during the drug raid. He points out that the government did not prove either that he had any possessory interest in the premises or that he was in actual possession of the drugs at any time during the raid. Although the facts here present a close casе, ultimately we disagree.
We begin our analysis by examining the context of McMurtry’s presence. It is undisputed that McMurtry was present for at least forty-five minutes in a house where evidence of a significant crack-cocaine manufacturing operation was *1023 conspicuously strewn about. As much as $20,000 worth of cocaine and cocaine base — and the materials necessary to manufacture and process cocaine base — were sitting out on tables and chairs in plain view. There was evidence that at least some of this crack cocaine had been recently manufactured: agents discovered а pile of still “wet” crack cocaine drying out with the aid of the box fan when they entered the apartment. In short, McMur-try neither argues, nor could there be any credible claim that he was unaware of the fact that criminal conduct was occurring at the house.
And it would have been reasonable for the jury to infer that this crack-manufacturing operation was the only conduct occurring there. There were no beds; there was no food in the kitchen; there were no clothes in the closets. The back door was fortified with a 2x4 to prevent entry and was equipped with a makeshift peephole device. The front door appeared to have been fortified as well, since it took two blows of a battering ram to break it down. Three loaded handguns were found in strategic locations throughout the house.
See United States v. Alvarez,
Agent Mascari testified that based upon her experience it was uncommon for drug dealers to entertain sоcial callers at crack houses. In her opinion, entertaining would increase the drug dealer’s risk of being robbed. As such, presence was a privilege reserved only for those who were participating in illegal drug activity. Indeed, the record indicates that while McMurtry gained access to and remained in a fortified location replete with evidence of criminal drug activity, others were not invited. At least one woman during the course of the agents’ surveillance came to the front door of the house but did not gain access, even though she apparently knew that one “Romel” was known to occupy the prеmises. Other courts have found the mere-presence doctrine inapplicable in similar situations where defendants were granted access to and remained for extended periods of time in the presence of conspicuous criminal conduct:
In these circumstances we cannot accept the hypothesis that participants in a distribution scheme would permit a noncontributing interloper to remain for an extended period of time in a small apartment while ... conspicuous criminal conduct continued unabated. Such is not normally the conduct that one would expect of conspirators engaged in conduct which by its nature is kept secret from outsiders. Neither juries nor judges are required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in light of their experience as to the natural inclinations of human beings. As we frequently recognize, the factfinder may infer ... that it runs counter to human experience to suppose that criminal conspirators would welcome innocent nonparticipants as witnesses to their crimes.
United States v. Batista-Polanco,
In Batistar-Polaneo, the defendant was present for at least forty-five minutes and *1024 more likely as long as two hours in an apartment where a large-scale heroin-packaging operation was occurring in open view. Upon entering the apartment, police immediately discovered 1500 heroin-filled packets, an assortment of heroin milling and packaging paraphernalia, and bulk heroin sitting in plain view on the kitchen table. About this table, police noted there were six chairs, and police arrested six individuals from the apartment. Elsewhere in the apartment, police recovered an additional 4700 packets of heroin. The court concluded that, although wholly circumstantial, the totality of circumstances surrounding the defendant’s arrest — including, most prominently, the openness and sheer scale of the criminal activity that occurred for at least forty-five minutes in his presence — was sufficient to refute his mere-presence argument. Id. at 18-19.
But as McMurtry correctly points out in his brief, the Batistar-Polcmco court in so finding also relied upon the reflexive inference that the six chairs at the heroin-strewn kitchen table were occupied by the six individuals, including the defendant, arrested that dаy in the apartment. Id. Additionally, the First Circuit was quick to discredit the defendant’s exculpatory testimony in light of the district court’s finding that the defendant had lied when he claimed he was only present at the house for forty-five minutes since a police sur-veillant had testified that the defendant must have been there for two hours. Id. Take these factors away, McMurtry argues, and the court could not have affirmed the jury’s guilty verdict.
Indeed, in a similar case distinguishing the constructive-possession and mere-presence doctrines, the D.C. Circuit relied not only upon the observation that the defendant’s presence in a one-room apartment “reeking with tell-tаle indicia of an ongoing drug-distributing enterprise” was a privilege reserved only for complicit coac-tors and, thus, “potently indicative of his involvement in the [drug] operation,” but also cited (1) the defendant’s actual possession of a key to the apartment, (2) the recovery of his identification card from a closet, and (3) an inference that he had participated in a last-ditch drug disposal effort as police attempted to enter the apartment, evidenced by the finding on his person of a small amount of heroin and money likely destined for a running garbage disposal.
Staten,
Correct as he may be in arguing that the length of presence coupled with the openness of the illicit conduct may not, in and of itself, be sufficient to defeat the mere-presence doctrine, what McMurtry ignores is that here, as in
Batistar-Polanco
and
Staten,
there are at least two additional factors that — when viewed in the total context of his presence and in the light most favorable to the government — further support the jury’s verdict. First, McMurtry fled from police. Upon the DEA agents’ announced entry, he and his codefendant Starks retreated to a back bedroom and hid in a closet (notably, that closet contained one of the three loaded handguns found in the house). “From the very infancy of criminal litigation, juries have been permitted to consider flight as evidence of consciousness of guilt and thus of guilt itself.”
United States v. Harley,
Thus, the totаlity of the circumstantial evidence surrounding McMurtry’s arrest was sufficient to refute his claims of mere presence and provided a rational basis upon which a jury could find guilt beyond a reasonable doubt. No case cited by McMurtry requires us to find otherwise. For instance, he relies on our application of the mere-presence doctrine in
United States v. DiNovo,
in which we reversed the conviction of a wife whose husband distributed heroin from a trailer where, at best, the two of them lived.
Much to the same effect is
United States v. Windom,
also cited by McMurtry, in which we held that the defendant’s possession of a marked bill previously used in a controlled drug purchase was insufficient evidence to establish his constructive possеssion of a heroin-filled backpack recovered during a subsequent search of a house in which we was present.
*1026 The mere-presence doctrine means just what it says' — presence and nothing more. That is not the case here: McMurtr/s presence wаs extended; the criminal conduct was conspicuous, ongoing, and occurring in a location exclusively devoted to that criminal enterprise; testimony indicated it was unreasonable in those circumstances to expect individuals engaged in that criminal enterprise to accept social visits; McMurtry fled from police; and his license plates were recovered from the premises. Although each of these factors when viewed individually may be insufficient to refute the mere-presence doctrine, when considered in their totality and in the light most favorable to the government we find they provided sufficient basis for the jury to conclude that McMurtry possessed the “recognized authority in his criminal milieu” to exert dominion and control over the drugs and distinguish him from the “ordinary bystander” caught in the wrong place at the wrong time.
B. Firearm Enhancements
Both McMurtry and Starks appeal the district court’s application of a two-level sentence enhancement for possession of a firearm during the commission of a drug-related offense arguing that neither had knowledge of the guns found in the apartment. Starks objected to the enhancement at sentencing, preserving the issue for appeal. Thus, in Starks’s case, we review the district court’s factual determination in applying thе enhancement under the clearly erroneous standard and will overturn that determination only if “after considering all the evidence, [we are] left with the definite and firm conviction that a mistake has been committed.”
United States v. Messino,
The U.S. Sentencing Guidelines Manual § 2Dl.l(b)(l) provides, “[i]f a dangerous weapon (including a firearm) was possessed, increase by 2 levels.” U.S.S.G. § 2Dl.l(b)(l) (2002). The commentary to this section states that “[t]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.”
Id.
§ 2D1.1(b)(1) cmt. n: 3. The enhancement accounts for the increased danger to law enforcement presented when drug dealers and traffickers arm themselves.
United States v. Cashman,
Under § 2Dl.l(b)(l), the government must first establish by a preponderance of the evidence that the defendant possessed a weapon in a place where drugs were present, before the burden of persuasion shifts to the defendant to demonstrate that it was clearly improbable that the weapon was connected with the drug offense.
United States v. Grimm,
Reviewing the evidence in this case, we are not convinced that the district court erred in finding that Starks and McMurtry possessed a firearm at the time of their arrest. First, we find there was sufficient circumstantial evidence to refute Starks’s claim that he didn’t know there were guns in the house. As discussed above, this was an active crack house with a significant amount of crack cocaine present. Agent Maseari testified that it was common for drug dealers to fortify crack houses with weapons in order to protect the drugs and drug proceeds from robbery. Indeed, Starks admitted at his sentencing hearing that he feared being robbed while working at the house that day. And even if all three guns found at the house were concealed, agents recovered multiple boxes of ammunition sitting in plain view of anyone in the house. It was reasonable for the district court to conclude from these facts that the defendants were aware of the presence of guns in thе house:
[W]e know that he was aware of the bullets. They were clearly visible. And anybody who sees bullets in several places in an apartment that is not really a place where anyone lives or has personal effects[,] and anyone who is in that apartment with the drugs that Mr. McMurtry and Mr. Starks had[,] certainly had to be aware that guns were in or about the premises.
(R. 47 at 15:7-13.)
Second, both Starks and McMurtry ran to and were found hiding in a closet that housed a loaded firearm. That gun was recovered from a lone shoebox on the closet’s top shelf — an area within reach of the defendants. As in
Wetwattana■,
the fact that the weapon was found inside the shоebox is immaterial since there was “no evidence ... that [the defendants were] unable to open the box and thereby immediately access the gun.”
Wetwattana,
*1028
Once the government established that the defendants were in possession of weapons, the burden shiftеd to Starks to show that the weapons were not clearly connected to the offense. This he failed to do. The district court correctly inferred from the close proximity of the guns to the drugs recovered from the house that they were connected to the offense.
United States v. Zehm,
III. CONCLUSION
For the foregoing reasons, we affirm McMurtry’s conviction and both the defendants’ sentences.
Notes
. Gem packs are small plastic bags originally designed to package small amounts of gems but ai'e commonly employed by drug dealers to package small amounts of drugs.
. We pause for a moment to distinguish our recent decision in
United States v. Harris,
in which we held that the defendant’s proximity to firearms during the course of a drug conspiracy was insufficient to support a § 2D 1.1 (b)(1) sentence enhancement absent evidence that the defendant had demonstrated ownership, authority, dominion, or control over at least one of the caches of weapons.