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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________________________
No. 92-8162
_________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

VERSUS
TOM WILKINSON EASTLAND,
and CULLEN REED HARRIS,
Defendants-Appellants.

_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas

_________________________________________________________________
(April 14, 1993)
Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.
BARKSDALE, Circuit Judge:
In considering appellants' contention that evidence of
methamphetamine manufacture should have been suppressed, we must
determine, inter alia, whether violation of a state trespass law by
its law enforcement officers compels, under principles of
federalism, suppression of evidence obtained as a result and
offered to prove violation of federal law. Appellants also contend
that the district court erred in sentencing, by its assessment of
drug quantity and enhancement for possession of a firearm and
leadership roles. Finding no error, we AFFIRM.

I.
In April 1990, state narcotics officers in Arkansas received
information that appellant Cullen Reed Harris was involved in drugs
and may have been concealing them on his property in Glenwood,
Arkansas. And that July, a confidential informant (CI) reported
that appellant Tom Wilkinson Eastland was using a portable lab to
manufacture and distribute methamphetamine in Texas, Arkansas, and
Oklahoma. The CI further advised that Ronnie Dale Gearhart was
involved in the manufacture and distribution of methamphetamine,
and reported that he (the CI) had been dealing with Gearhart and
Eastland for approximately five years. The CI believed that the
base of the operation was run by a one-armed man, subsequently
identified as Harris; and the CI informed that Harris would contact
Eastland at least twice a month for the profits from the sale of
methamphetamine. That same month, the police received additional
information linking Eastland and Harris, and identifying Gearhart
as one of Eastland's main distributors.
State investigators in Arkansas and Texas compiled numerous
reports detailing the activities of Eastland, Harris, and Gearhart
from September 1990 to March 1991; they believed that Harris and
Eastland were conducting a multi-state operation to manufacture,
distribute, and possess methamphetamine. Harris was described as
the "financier" of the Eastland methamphetamine manufacturing
organization.
In an unrelated incident, Deputies Tom Hall and Jeff Duck
received information from a CI on March 16, 1991, of suspicious
- 2 -

activity in a wooded area of Leon County, Texas. Among other
things, there had been several burglaries in the area during the
past few months. The deputies approached the property and observed
tire tracks on a trail, which was covered by plum bushes (two to
three feet in height), leading to the heavily wooded area. The
property was surrounded by a barbed wire fence; the entrance gate
was chained and locked; and "no trespassing" signs were posted.
Suspecting that the wooded property contained hidden stolen goods,
the deputies climbed over the gate and entered the property to
investigate. They discovered two wood frame buildings, and
detected a faint odor associated with a methamphetamine laboratory.
On March 20, Sheriff Wilson notified Department of Public
Safety (DPS) narcotics Lieutenant Stewart of the deputies'
findings. Stewart dispatched Sergeants Brakefield and Von Allen to
investigate; they entered the property and observed a motor home,
but did not detect an odor of a chemical laboratory or otherwise
see suspicious activity.
On March 21, Sheriff Wilson learned that the property was
owned by Harris, who had an associate named Eastland; that both had
criminal records involving contraband substance violations1; and
that both were the object of a lengthy investigation in the Houston
area. Sergeant Hammonds, with the Houston DPS office, who had been
actively investigating the activities of Eastland and Harris since
1
In 1984, Eastland pleaded guilty to conspiracy to manufacture
phenyl-2-propanone, and received a one year sentence. Harris
pleaded guilty in 1982 to conspiracy to manufacture phenylacetone,
methamphetamine, and amphetamine; he received a four year sentence.
- 3 -

September 1990, supplied additional intelligence information on
Eastland and Harris's involvement with methamphetamine production
and distribution.
That day, Sergeants Brakefield and Rhynsburger returned to the
property in search of evidence of a clandestine laboratory. As
they approached a wood frame building, they detected a strong odor
associated with a methamphetamine laboratory. Accordingly, they
obtained a search warrant that night, and arrested Harris,
Eastland, and Gearhart as they exited the motor home. A subsequent
search of the property uncovered an operating methamphetamine
laboratory. The officers recovered 47.68 pounds of
methamphetamine, and 111.62 pounds of phenylacetone.
The next day, March 22, the officers executed a search warrant
at Eastland's residence in Spring, Texas, and discovered twelve
firearms2; however, they were missing when federal ATF agents
returned with a warrant to seize them. On March 22, the state
officers also executed a search warrant at Harris's residence in
Glenwood, Arkansas. Among items seized were four firearms,3 a
triple beam scale, cash totalling approximately $212,000,
2
The agents identified the weapons as follows: a Blackhawk .22
caliber; a Colt 45 automatic; a pistol of unknown brand being .32
or .38 caliber; two Remington model 700; a Weatherby brand .22; a
Remington of unknown caliber; a Winchester 30-30 rifle; a Remington
.22; an unknown model firearm; a Browning 12-gauge shotgun; and a
Smith and Wesson revolver.
3
The firearms were described as follows: (1) a .32 caliber
Winchester special level action with one expended case and six
rounds in the magazine; (2) a Winchester model 75 semi-automatic
.22 caliber long rifle; (3) A.M.T. Automag II semi-automatic
stainless steel .22 caliber magnum, fully loaded with eight rounds;
and (4) a pistola model .27 KAL 7.65 semi-automatic pistol.
- 4 -

marijuana, a jar containing methamphetamine/ephedrine residue, and
a film canister containing methamphetamine residue.
Eastland and Harris were charged with conspiracy to
manufacture more than 1000 grams of methamphetamine in violation of
21 U.S.C. �� 846 and 841(a)(1) (count one), and the manufacture of
1000 grams or more of a mixture or substance containing a
detectable amount of methamphetamine, in violation of 21 U.S.C. �
841(a)(1) (count two). The indictment stated that the conspiracy
began on or about March 18, 1991, and continued until on or about
March 21, 1991.
Prior to trial, Gearhart provided DPS with information on
Eastland and Harris. He reported that Eastland had asked him to
help manufacture methamphetamine; had offered to pay him after the
manufacture and sale of same; and was present at the laboratory,
and gave instructions regarding the manufacturing process. He also
stated that Harris assisted in setting up the laboratory and in
processing the methamphetamine.
Gearhart subsequently testified at trial that he became
involved with Eastland's methamphetamine business in 1988, first as
a purchaser of precursor chemicals and then as a methamphetamine
distributor; that he received one quarter pound on approximately
two occasions, and then a half a pound for approximately one and a
half months; that he paid approximately $750 per ounce; and that he
received methamphetamine from Eastland at his house in Spring,
Texas on two occasions.
- 5 -

A jury found Harris and Eastland guilty as charged. At
sentencing, over objection, the district court applied a three-
level increase, pursuant to Sentencing Guideline � 3B1.1(b) for
their respective roles in the offense, and a two-level increase for
possession of a firearm during commission of the offense, pursuant
to U.S.S.G. � 2D1.1(b)(1). Eastland and Harris were sentenced,
inter alia, to life imprisonment as to each count, to be served
concurrently.
II.
Appellants contest the denial of their suppression motion;
and, for their sentences, contest the rulings on drug quantity,
leadership roles, and weapons possession.
A.
On two grounds, Eastland and Harris challenge the district
court's refusal to suppress evidence of methamphetamine manu-
facturing, obtained through execution of the search warrant on
March 21. First, they contend that information used in the
affidavit to obtain the warrant, such as the faint chemical odor
detected on March 16, stemmed from an unreasonable search of
Harris's property on March 16, violative of the Fourth Amendment.
According to appellants, law enforcement officers may not enter
"open fields" on private property without some degree of
justification.4 Second, they maintain that, because, prior to
execution of the warrant, Texas law enforcement officers trespassed
4
Appellants concede that all observations were made from "open
fields", and not from protected curtilage.
- 6 -

onto Harris's property in violation of state law, the court should
have suppressed the evidence. We reject both contentions.
1.
Appellants assert that some level of justification -- whether
it be probable cause or, at least, reasonable suspicion -- is a
prerequisite for warrantless police intrusions onto open fields.
They contend that otherwise, the open fields exception will swallow
the rule -- the Fourth Amendment -- and destroy a person's limited
expectation of privacy engendered by, inter alia, state laws
prohibiting non-consensual entry.
In Hester v. United States, 265 U.S. 57, 59 (1924), the
Supreme Court held that "the special protection accorded by the
Fourth Amendment to the people in their `persons, houses, papers,
and effects,' is not extended to the open fields". This bright
line rule was called into question by Katz v. United States, 389
U.S. 347 (1967), which focused Fourth Amendment analysis on the
individual's "constitutionally protected reasonable expectation of
privacy". Id. at 360 (Harlan, J., concurring). However, in Oliver
v. United States, 466 U.S. 170 (1984), the Court reconciled Hester
with Katz, by holding that "no expectation of privacy legitimately
attaches to open fields". Id. at 180.
It is well-established that the Fourth Amendment does not
apply to observations while standing on open fields. See United
States v. Pace, 955 F.2d 270, 274 (5th Cir. 1992) (open fields do
not warrant Fourth Amendment protection); Dow Chemical Co. v.
United States, 476 U.S. 227, 239 (1986) (Fourth Amendment does not
- 7 -

apply to an aerial surveillance of a 2000 acre industrial complex
because it is an open field); United States v. Dunn, 480 U.S. 294,
302-05 (1987) (officer may stand in field and flash light in
defendant's barn because "there is no constitutional difference
between police observations conducted while in a public place and
while standing in the open fields").
Justification for a search or seizure under the Fourth
Amendment is required because it demands reasonableness.5 See
Terry v. Ohio, 392 U.S. 1, 20-21 (1968). But, where, as here, the
governmental intrusion does not implicate the Fourth Amendment, the
reasonableness
requirement
is
likewise not implicated.6
Appellants' contention is without merit.7
5
"The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated." U.S. Const. amend. IV (emphasis
added).
6
Therefore, we need not reach whether the officers had probable
cause, or at least reasonable suspicion, to justify entry.
7
At oral argument in March 1993, appellants asserted for the
first time that the intrusion implicated the Fourth Amendment
because it interfered with possessory interests in property,
relying on the recent opinion in Soldal v. Cook County, ___ U.S.
___, 113 S. Ct. 538 (1992). Needless to say, we generally do not
address issues raised for the first time at oral argument.
Appellants did not brief this issue (at the very least, they could
have done so by obtaining permission to file a supplemental brief
or by a Fed. R. App. P. 28(j) letter); nor did they raise it in
district court. Nevertheless, we do not find Soldal controlling.
See, e.g., id. at 544 n.7.
- 8 -

2.
Appellants contend that the admission of evidence derived from
an unlawful trespass by state officers8 contravened principles of
federalism.9 According to appellants, because the Texas state
exclusionary statute, see Vernon's Ann. Texas C.C.P. art. 38.23,
would operate to exclude evidence seized pursuant to the March 21
warrant,10 the evidence should be similarly inadmissible in federal
court. We find no basis for so holding, either under the
Constitution or pursuant to our supervisory powers.
The exclusionary rule is not "a personal constitutional
right", but is "a judicially created remedy designed to safeguard
Fourth Amendment rights generally through its deterrent effect".
United States v. Calandra, 414 U.S. 338, 348 (1974). The rule was
not "created to discourage ... violations of state law." United
States v. Walker, 960 F.2d 409, 415 (5th Cir.), cert. denied, ___
U.S. ___, 113 S.Ct. 443 (1992). Accordingly, we have held:
[T]he proper inquiry in determining whether to
exclude the evidence ... is not whether the state
officials' actions in arresting him were "lawful"
or "valid under state law." The question that a
federal court must ask when evidence secured by
8
Texas law prohibits trespass, and provides no exception for
law enforcement officers. See V.T.C.A. Penal Code � 30.05.
Appellants maintain that the deputies' entry on March 16
constituted an unlawful trespass.
9
Appellants also assert that this infringed their right to due
process, but do not brief this issue. Accordingly, we do not
address it.
10
Appellants cite State v. Hobbs, 824 S.W.2d 317 (Tex.App. - San
Antonio, 1992), for the proposition that the state exclusionary
statute has been construed to prohibit the introduction of evidence
seized as a result of a trespass.
- 9 -

state officials is to be used as evidence against a
defendant accused of a federal offense is whether
the actions of the state officials in securing the
evidence violated the Fourth Amendment to the
United States Constitution.
Walker, 960 F.2d at 415.
In determining the reach of the Fourth Amendment, it is well-
established that federal law controls. See California v.
Greenwood, 486 U.S. 35, 43-45 (1988). In Greenwood, the Supreme
Court emphasized that the Fourth Amendment analysis focuses on "our
societal understanding" of privacy, and does not depend upon
concepts of privacy under the laws of each state:
Individual States may surely construe their own
constitutions
as
imposing
more
stringent
constraints on police conduct than does the Federal
Constitution. We have never intimated, however,
that whether or not a search is reasonable within
the meaning of the Fourth Amendment depends on the
law of the particular State in which the search
occurs.
Id. at 43.
Citing United States v. Robinson, 650 F.2d 537 (5th Cir.
1981), appellants maintain that our court recognizes the validity
of state law in federal prosecutions. In Fields v. South Houston,
922 F.2d 1183, 1189-90 n.7 (5th Cir. 1991), however, we re-examined
Robinson, and other cases in which we looked to state law to
determine the validity of an arrest, and noted that if such
decisions "have any remaining validity after Greenwood, it can only
be on a nonconstitutional basis". Id. Accordingly, we turn to
examine that basis for exclusion.
Where there is "some strong social policy", federal courts may
extend exclusionary rules of evidence beyond constitutional and
- 10 -

statutory requirements. On Lee v. United States, 343 U.S. 747
(1952). In Elkins v. United States, 364 U.S. 206 (1960), the Court
exercised its supervisory powers to eliminate what was known as
"the silver platter doctrine". Id. at 216. Prior to Elkins, state
officers were allowed to transfer to federal officers evidence
obtained in violation of the federal constitution. The Elkin Court
rejected this practice to maintain "healthy federalism":
[W]hen a federal court sitting in an exclusionary
state admits evidence lawlessly seized by state
agents, it not only frustrates state policy, but
frustrates
that
policy
in
a
particularly
inappropriate and ironic way. For by admitting the
unlawfully seized evidence the federal court serves
to defeat the state's effort to assure obedience to
the Federal Constitution.
Id. at 221.
Appellants maintain that we should apply the rationale of the
Elkin Court and, in the name of federalism, similarly exclude
evidence obtained in violation of state law. According to
appellants, "[a]llowing federal prosecutors to use evidence
obtained in violation of state law thwarts the authority and
ability of the states to protect their own citizens". For a number
of compelling reasons, we refuse to so exercise our supervisory
power.
First, and most significantly, appellants' contention is
foreclosed by Walker, 960 F.2d at 415-16, in which we affirmed the
district court's refusal to suppress fruits of arrest deemed
unlawful under Texas law. We recognized that the Supreme Court
would not "us[e] its supervisory powers to exclude evidence
obtained unlawfully but under circumstances not violative of the
- 11 -

Fourth Amendment". Id. at 416 (citing United States v. Payner, 447
U.S. 727 (1980)).
In addition, a number of obvious, strong policy considerations
militate against the exclusion of evidence obtained in violation of
state law. For example, such a rule would disrupt uniformity of
evidentiary rules among federal courts, and involve them in
difficult interpretations of state statutory and constitutional
law. Accordingly, we likewise hold that the contours of the
exclusionary rule to be applied in federal court are generally
determined by federal, not state, law, even where evidence is
obtained solely by state officers. See United States v.
Sutherland, 929 F.2d 765, 770 (1st Cir. 1991) (refusing to exclude
evidence obtained by state officers in knowing violation of state
law), cert. denied, Fini v. United States, ___ U.S. ___, 112 S.Ct.
83 (1991); United States v. Pforzheimer, 826 F.2d 200, 203 (2nd
Cir. 1987) (federal exclusionary rule applies even though
investigation conducted solely by state officers, and evidence
would be inadmissible in state court). The district court properly
admitted the evidence at issue.11
B.
Appellants challenge the drug quantity amounts used to
calculate base offense levels for sentencing. We review only for
clear error a district court's findings concerning the quantity of
11
We leave open whether there may be an instance of abuse and/or
collusion in which a court might choose to exercise its supervisory
powers and exclude evidence obtained in violation of state law.
See Sutherland, 929 F.2d at 770.
- 12 -

drugs involved, United States v. Ponce, 917 F.2d 841, 842 (5th Cir.
1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1398 (1991). Of
course, legal determinations are reviewed de novo. United States
v. Mourning, 914 F.2d 699, 704 (5th Cir. 1990).
The district court found appellants responsible for 47.68
pounds of methamphetamine and 111.62 pounds of phenylacetone,
derived from the following seized objects: (1) four flasks
containing 47.68 pounds of methamphetamine in liquid form; (2) a
separatory funnel containing 7.62 pounds of phenylacetone; and (3)
13 plastic jugs containing 104 pounds of lye water with gold oilish
rings of phenylacetone on the water's surface. A chemist for the
government, estimated that, taken together, the jugs contained one-
half pound of phenylacetone,12 which yields one-quarter pound to
one-half pound of methamphetamine respectively.13
12
The chemist explained,
When the process of cleaning up the phenylacetone
reaction is taking place, the phenylacetone is
placed in a separatory funnel, along with lye water
that is the result of the lye here and distilled
water. You put those chemicals in here, shake it
very vigorously, let it sit for a little while, the
phenylacetone will float to the top, lye water is
drained off through the spigot at the bottom.
Typically its drained into these opaque plastic
jugs. As they sit around for a while, or several
hours, some of the phenylacetone that was trapped
in the lye water will gradually float to the top
and form these gold rings.
13
Methamphetamine production involves a three step process: (1)
production of phenylacetone; (2) conversion of phenylacetone to
methamphetamine oil; and, (3) conversion of the oil to a water
soluble salt.
- 13 -

1.
The guidelines provide: "Unless otherwise specified, the
weight of a controlled substance ... refers to the entire weight of
any mixture or substance containing a detectable amount of the
controlled substance". Note following Drug Quantity Table,
U.S.S.G. � 2D1.1. Appellants rely on the "market-oriented
approach" set forth in Chapman v. United States, ___ U.S. ___, 111
S.Ct. 1919 (1991), and contend that the district court erred in
including the weight of the lye water because it was not useable or
marketable, and because it was easily separable from the
phenylacetone. This contention is foreclosed, however, by our
post-Chapman decisions in United States v. Walker, United States v.
Sherrod, and United States v. Ruff.
In Walker, 960 F.2d at 412, we held that Chapman did not
overrule Fifth Circuit precedent providing for the inclusion of
liquid waste when determining the relevant amount of drugs for
sentencing.14 We reaffirmed this principle in Sherrod, 964 F.2d
1501, 1510 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct.
1422 (1993), stating that the Chapman Court did not intend for its
market-oriented analysis to be applied to mixtures of
14
See United States v. McKeever, 906 F.2d 129, 133 (5th Cir.
1990) (considered 26 liters of a substance that contained
detectable amounts of phenylacetone), cert. denied, Newman v.
United States, ___ U.S. ___, 111 S.Ct. 790 (1991); United States v.
Butler, 895 F.2d 1016, 1018 (5th Cir. 1989) (considered entire 38
pound mixture of lye water even though it contained only seven to
14 grams of a controlled substance), cert. denied, 498 U.S. 826
(1990); United States v. Baker, 883 F.2d 13, 15 (5th Cir.), cert.
denied, 493 U.S. 983 (1989) (considered 40 pound liquid even though
most was waste material), cert. denied, 493 U.S. 983 (1989).
- 14 -

methamphetamine. Most recently, in Ruff, 984 F.2d 635, ___ (5th
Cir. 1993), we held that the district court correctly considered
the entire weight of mixtures containing traces of phenylacetone
and methamphetamine, even though testimony established that the
solutions were probably residue from a manufacturing process, and
that the amounts found were insufficient for use in manufacturing
methamphetamine or amphetamine. We reasoned that precedent and the
language of the guidelines mandated considering the entire amount
of the mixture, because phenylacetone was "detectable".15
In short, we are bound by precedent.16 Accordingly,
appellants' contention that the court erred in considering 103
pounds of lye water fails.17
2.
Appellants contend that the district court misapplied the drug
equivalency tables because it found that the phenylacetone was
possessed for the purpose of manufacturing methamphetamine and
therefore applied a higher conversion rate. Under U.S.S.G. �
15
The case before us is far more compelling than Ruff, where the
solution appeared to be pure waste. Here, because the
phenylacetone was capable of producing one-quarter pound to one-
half pound of methamphetamine, the district court could easily
infer that appellants could use the wash to capture the remaining
phenylacetone.
16
"In this circuit, one panel may not overrule the decision --
right or wrong -- of a prior panel, absent en banc reconsideration
or a superseding contrary decision of the Supreme Court." In re
Dyke, 943 F.2d 1435, 1442 (5th Cir. 1992).
17
Similarly, Harris's contention that the district court erred
in basing his offense level on 47.68 pounds of liquid
methamphetamine, because the liquid was not in useable form and
contained poisonous by-products, is foreclosed by Fifth Circuit
precedent cited supra.
- 15 -

2D1.1, one gram of phenylacetone is equivalent to 2.08 grams of
cocaine if possessed "for the purpose of manufacturing
methamphetamine"; otherwise, one gram is equivalent to .375 grams
of cocaine. Because this issue was not raised in district court,
we review for plain error and find none. As stated, see supra,
note 15, there is sufficient evidence in the record to support the
finding that appellants retained the phenylacetone for the purpose
of manufacturing methamphetamine.
C.
Appellants contend that the district court erroneously applied
U.S.S.G. � 3B1.1(b), which provides that "if the defendant was a
manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was
otherwise extensive, increase [the offense level] by 3". Finding
that appellants were involved in "a situation involving quite
extensive criminal activity", the district court applied a three
level increase for each. In reaching this conclusion, the district
court looked beyond the offense of conviction, which was limited to
conspiracy to manufacture methamphetamine from approximately March
18 to March 21, and relied on evidence establishing that Eastland
and Harris were chief participants in a larger multi-state
conspiracy to manufacture and distribute methamphetamine; that
Eastland recruited Gearhart, who distributed six pounds of
methamphetamine over the course of approximately 14 months; and
that Harris was the financier of the Eastland organization.
- 16 -

On appeal, appellants do not deny their participation in the
larger conspiracy, nor do they maintain that the court erred in its
characterization of their role; rather, relying on United States v.
Barbontin, 907 F.2d 1494 (5th Cir. 1990), they urge a narrow
reading of the guidelines and contend that the court misapplied
them by looking beyond the offense of conviction. This contention
is foreclosed by a clarifying amendment to the guidelines,
effective November 1, 1990,18 and by Fifth Circuit precedent. See
United States v. Mir, 919 F.2d 940, 945 (5th Cir. 1990) ("[i]t is
not the contours of the offense charged that defines the outer
limits of the transaction; rather it is the contours of the
underlying scheme itself").19
18
An amendment to the commentary accompanying U.S.S.G. � 3B1.1
clarified whether a court should consider collateral conduct in
determining a defendant's role in the offense. The new
introductory comment provides:
The determination of a defendant's role in the
offense is to be made on the basis of all conduct
within the scope of � 1B1.3 (Relevant Conduct),
i.e. all conduct included under � 1B1.3(a)(1)-(4),
and not solely on the basis of elements and acts
cited in the count of conviction.
U.S.S.G. � 3B1.1 introductory commentary.
19
Mir reconciled potentially conflicting precedent. In
Barbontin, 907 F.2d at 1498, we held that "a section 3B1.1(a)
adjustment is anchored to the transaction leading to the conviction
... [t]he sentencing court is thus not at liberty to include those
members ... not involved in the transaction of conviction for
purposes of section 3B1.1(a) departure". Shortly thereafter, in
United States v. Manthei, 913 F.2d 1130 (5th Cir. 1990), we refused
to read Barbontin for the proposition that a court may never
consider relevant conduct when making an adjustment under �
3B1.1(a). Rather, we held that "while the � 3B1.1(a) `offense' is
the `offense charged,' the scope to be considered is, where
applicable, much wider -- it encompasses the above discussed
- 17 -

The conduct underlying the offense of conviction was part of
a larger scheme to manufacture and distribute cocaine; accordingly,
we conclude that the court correctly applied the guidelines in
considering appellants' conduct in the multi-state conspiracy.
D.
Appellants' final contention is that the district court erred
by use of � 2D1.1(b)(1), which permits a two level increase in the
offense level "[i]f a dangerous weapon (including a firearm) was
possessed". Because the decision to apply � 2D1.1(b)(1) is a
factual one, we review only for clear error. United States v.
Paulk, 917 F.2d 879, 882 (5th Cir. 1990).
Understandably again seeking a narrow interpretation of the
guidelines, appellants' contend that � 2D1.1(b)(1) requires
possession during the offense of conviction. But this is precisely
the contention we rejected in United States v. Paulk. There, we
held that "[t]he district court could properly consider related
relevant conduct in determining the applicability of section
2D1.1(b)(1)". 917 F.2d at 884. Even though, at that time, the
language of � 1B1.3 specified possession "during the commission of
relevant conduct, the underlying activities and participants that
directly brought about the more limited sphere of the elements of
the specific charged offense". Id. at 1136. Mir reconciled the
two cases, holding that "Barbontin and Manthei instruct that while
an upward adjustment for a leadership role under section 3B1.1 must
be anchored in the defendant's transaction, we will take a common-
sense view of just what the outline of that transaction is". Mir,
919 F.2d at 945. Referring to the clarifying amendment discussed
supra, we also stated that "[t]his language shows that section
3B1.1 is intended to comport with other guidelines sections
allowing a sentencing judge to look beyond the narrow confines of
the offense charged to consider all relevant conduct". Id. at 945.
- 18 -

the offense", we nonetheless allowed consideration of relevant
conduct because we found "[n]o reason [to] distinguish[]
consideration of relevant uncharged conduct when computing a
defendant's base sentence level under section 1B1.3(a)(2) from
consideration of relevant uncharged conduct when determining a
specific offense characteristic under section 1B1.3(a)(2)". Id. at
884. Since Paulk, the sentencing commission has deleted the
language "during the commission of the offense" from the text of �
2D1.1(b)(1) to clarify that the relevant conduct provisions apply.
See U.S.S.G. App.C amendment 394. In view of the foregoing, the
district court properly considered the scope of appellants' larger
conspiracy when determining the appropriateness of a two point
increase.
We next examine whether the court clearly erred in finding
that appellants possessed firearms during the course of their
multi-state conspiracy. The commentary to � 2D1.1(b)(1) explains
that the enhancement factor "reflects the increased danger of
violence when drug traffickers possess weapons", and should be
applied "if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense". U.S.S.G. � 2D1.1
comment (n.3). Weapon possession is established if the government
proves by a preponderance of the evidence "that a temporal and
spatial relation existed between the weapon, the drug trafficking
activity, and the defendant". United States v. Hooten, 942 F.2d
878, 882 (5th Cir. 1991). "Generally, the government must provide
evidence that the weapon was found in the same location where drugs
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or drug paraphernalia are stored or where part of the transaction
occurred". Id.
1.
Over ten pistols and rifles were discovered in Eastland's
residence the day after his arrest. The majority were found in his
bedroom, including a loaded 45 automatic in a nightstand by his
bed. (As stated, the weapons had been removed by the time federal
agents returned to seize them.) At the sentencing hearing,
Brakefield testified that, according to Gearhart, Eastland
routinely carried a firearm with him.20 Intelligence information
reported that Eastland dealt methamphetamine out of his house.
The larger conspiracy involved both manufacture and
distribution of methamphetamine. Because Eastland dealt from his
residence, it became part of the situs of the offense. See United
States v. McKeever, 906 F.2d 129, 134 (5th Cir. 1990). And,
because evidence indicated that he carried a gun in connection with
his methamphetamine dealings, it is "not clearly improbable" that
the weapons discovered in his residence were likewise connected.
In view of this evidence, we conclude that the district court did
not clearly err.
20
We reject Eastland's objection to the admission of this
hearsay at his sentencing hearing. It goes without saying that
hearsay is admissible at sentencing. See Mir, 919 F.2d at 943
n.3. We find no basis in the record for concluding that the
district court abused its discretion in considering this testimony.
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2.
Concerning Harris, federal agents discovered four firearms in
a trailer on his property in Pike County, Arkansas, two of which
were loaded. Also in the trailer was a Merck Index (describes
elements used in the manufacture of narcotics), and traces of
methamphetamine. In addition, the agents recovered over $200,000,
and other drug paraphernalia from the property. In view of the
presence of methamphetamine, currency, and paraphernalia, we
conclude that the district court did not clearly err in finding
that the firearms were connected to the conspiracy to manufacture
and distribute methamphetamine.
Harris's focus on the distance between the laboratory and his
residence ignores the fact that the conspiracy under consideration
included both manufacture and distribution. Moreover, that the
firearms possessed were not the usual firearms or tools of the
trade, does not render the court's findings clearly erroneous.
Evidence at trial established that Harris had acquired literature
to convert semi-automatic firearms to fully automatic. And, given
the evidence indicating the use of his residence in furtherance of
the conspiracy, it is, again, "not clearly improbable that the
[firearms were] connected to the offense".
III.
For the foregoing reasons, the judgments of the district court
are
AFFIRMED.
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