Submitted: May 8, 2017
from United States District Court for the District of
Nebraska - Omaha
RILEY, BEAM, and SHEPHERD, Circuit Judges.
Ashburn sold methamphetamine to a confidential informant.
About a week later, police searched the room where Ashburn
was staying-which was where the prior sale had taken
place-and found drugs, equipment for measuring and packaging
drugs, and ledgers recording drug transactions. Officers also
found three knives: a knife for filleting fish, a
"decorative knife, " and a "World War II U.S.
Navy knife." All three had blades about seven inches
pled guilty to conspiring to distribute methamphetamine.
See 21 U.S.C. §§ 841(a)(1), 846. In the
course of determining Ashburn's recommended sentence
under the advisory United States Sentencing Guidelines
(Guidelines or U.S.S.G.), the district court increased
Ashburn's offense level by two levels for possessing
dangerous weapons, namely the knives. See U.S.S.G.
§ 2D1.1(b)(1). The Guidelines recommended a sentence of
188 to 235 months in prison. Without the dangerous-weapon
enhancement, the range would have been 151 to 188 months.
See id. ch. 5, pt. A. As it was, the district court
granted "a modest variance from the low end of the
guideline range" and sentenced Ashburn to 172 months.
times during sentencing, the district court expressed a
"belie[f]" that to avoid application of the
enhancement, Ashburn "ha[d] the burden of demonstrating
that it is clearly improbable that the knives were used in
connection with the drug-dealing offense." That was
wrong. See United States v. Peroceski, 520 F.3d 886,
889 (8th Cir. 2008) ("The burden is always on the
government to prove that a defendant is subject to a
sentencing enhancement."). Although Ashburn resisted the
offense-level increase and argued the knives had nothing to
do with the drugs, he did not object to the district
court's allocation of the burden of proof. Generally, we
do not correct errors not raised in the district court, even
errors as "'plain'" as this, unless the
aggrieved party establishes that the error
"'affect[s] substantial rights.'"
United States v. Olano, 507 U.S. 725, 732 (1993)
(alteration in original) (quoting Fed. R. Crim. P. 52(b)).
The benefit of that principle can itself be forfeited through
a failure to invoke it, see, e.g.,
United States v. Albin, 297 F.App'x 551, 552
(8th Cir. 2008) (per curiam), and the government does not
raise and argue that principle here.
Instead, the government assumes an unnecessary burden and
argues the district court's error should be disregarded
because it was harmless. See Fed. R. Crim. P. 52(a);
see also United States v. Pirani, 406 F.3d 543, 550
(8th Cir. 2005) (en banc) ("The defendant has the burden
of proving plain error, whereas the government has the burden
of proving harmless error."). For an error to be
harmless, it must not have substantially influenced the
outcome of the proceeding. See, e.g.,
United States v. Haidley, 400 F.3d 642, 645 (8th
Cir. 2005). Our precedent makes clear that the harmlessness
of an error like the one in this case-a district court
mistakenly requiring a defendant to prove he was not subject
to a dangerous-weapon enhancement-can be demonstrated by the
weight of the evidence supporting the enhancement. See
United States v. Lucht, 18 F.3d 541, 555 (8th Cir.
emphasizes that the government did not present any evidence
affirmatively showing him using the knives in connection with
his drug-dealing or conspiring. Such evidence was
unnecessary. To justify the dangerous-weapon enhancement, the
government only needed to prove "it was not clearly
improbable that the weapon[s] w[ere] connected to the drug
offense." United States v. Anderson, 618
F.3d 873, 880 (8th Cir. 2010); see also U.S.S.G.
§ 2D1.1 cmt. n.11(A). That is "a very low bar,
" as we have repeatedly explained, and
"'[e]vidence that the weapon was found in the same
location as drugs or drug paraphernalia usually
suffices.'" Anderson, 618 F.3d at 881-82
(alteration in original) (quoting United States v.
Fladten, 230 F.3d 1083, 1086 (8th Cir. 2000) (per
curiam)); see also id. at 881 (collecting cases).
Here, not only were all three knives in the same room as the
drugs, two of them were found on top of the dresser under
which the drugs were hidden.
Ashburn's testimony at the sentencing hearing does not
make the district court's error any less harmless.
Ashburn did not dispute the knives were in the room when he
conspired and sold methamphetamine. He just claimed he only
used them for preparing fish and cutting pizza, not dealing
drugs. Even assuming that use was true, it would not
undermine the district court's finding that the
enhancement applied, because "the Government need not
show that a defendant used or even touched a weapon to prove
a connection between the weapon and the [drug] offense."
United States v. Savage, 414 F.3d 964, 967 (8th Cir.
2005). To the contrary, it is enough "that the [weapon]
was readily accessible . . . in [a] small apartment and would
be available . . . in the event of a dispute during the
course of a drug transaction." Id. The district
court recognized this minimal link was all the Guidelines and
our precedent required, and concluded "it's simply
not improbable that [the knives] were connected with the
[drug] activity, " notwithstanding Ashburn's
denials. Given the "reduce[d] . . . quantum of proof
necessary" for the enhancement to apply,
Peroceski, 520 F.3d at 889, and the undisputed
evidence of Ashburn having at least two large knives in the
open, within easy reach of his stash of drugs, in the room
where he conducted at least one sale, we have no doubt the
district court would have reached the same decision with a
proper application of the burden of proof.
district court's error was therefore harmless and is not
subject to correction on appeal. See Lucht, 18 F.3d
at 555. And for much the same reason-in short, the strength
of the evidence relative to the minimal showing required-the
district court's ultimate finding that the
dangerous-weapon enhancement applied was not clear error.
See, e.g., id. (standard of review
for factual determinations). We affirm Ashburn's
sentence. See 28 U.S.C. § 1291 (appellate
The Honorable Laurie Smith Camp, Chief
Judge, United States District Court for the District of