United States of America v. Tekhola Temar Lee Trapps

United States Court of Appeals
For the Eighth Circuit
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No. 19-1368
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Tekhola Temar Lee Trapps
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: February 10, 2020
Filed: July 2, 2020
[Unpublished]
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Before LOKEN, BENTON, and KELLY, Circuit Judges.
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PER CURIAM.
Tekhola Temar Lee Trapps pleaded guilty to possession with intent to
distribute cocaine base in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(C), and 18

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U.S.C. § 2. The district court1 applied a two-level firearm enhancement under United
States Sentencing Guidelines § 2D1.1(b)(1) and sentenced Trapps to 48 months of
imprisonment. Trapps appeals the application of the enhancement. Finding no basis
for reversal, we affirm.
I.
In March 2017, law enforcement began investigating the drug trafficking
activities of Trapps’ long-term boyfriend, Jimmie Lee McGowan Jr. Trapps and
McGowan lived together and, through a wiretap on McGowan’s phone, officers
learned that Trapps was involved in his drug trafficking operation. In one intercepted
call, law enforcement overheard McGowan talking to Trapps about selling some of
the firearms that were in their home. In the conversation, Trapps confirmed that the
firearms were there and that she had counted six of them. The investigation also
showed that McGowan prepared and sold drugs from the house, and that he sold
drugs from motor vehicles and at predetermined locations within a block or two of
the house.
On December 13, 2017, law enforcement arrested McGowan and Trapps and
searched their home. Officers found an unspecified quantity of suspected cocaine
base, counterfeit bills, and $2,231 in cash. They also found four firearms: one in a
woman’s purse in a bedroom, a second in a kitchen cupboard drawer, and two more
in the garage.
In May 2018, Trapps pleaded guilty to possession with intent to distribute
cocaine base. In her plea agreement, Trapps admitted that she had assisted McGowan
by weighing crack and powder cocaine, counting money from drug sales, and making
1 The Honorable Susan R. Nelson, United States District Judge for the District
of Minnesota.
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drug deliveries. The parties stipulated to a base offense level of 24 for the quantity
of drugs involved, but Trapps reserved her right to contest a firearm enhancement
pursuant to USSG § 2D1.1(b)(1).
Prior to sentencing, Trapps underwent a psychological evaluation. According
to the psychologist’s report, Trapps detailed “episodic verbal, emotional and physical
abuse at the hands of Mr. McGowan because of his chronic psychological problems.”
The report concluded that from Trapps’ point of view, “it was simply easier to comply
with what Mr. McGowan wanted her to do, than to arouse his suspicion and anger.”
The report also noted that Trapps had a long history of “living in a relationship that
was periodically punctuated with emotional, verbal and occasional physical abuse”
and that she suffered from persistent depressive disorder, schizotypal personality
disorder, and post-traumatic stress disorder.
At sentencing, Trapps objected to the firearm enhancement. Trapps did not
dispute she knew the firearms were in the house, but instead argued that they were not
sufficiently connected to her offense of conviction. The district court overruled
Trapps’ objection. The court noted that Trapps had acknowledged in a telephone call
with McGowan that several firearms were in the home, and that law enforcement
found crack cocaine and four firearms at the residence, including one inside a
woman’s purse. Based on these facts, the district court determined that “under a
preponderance of the evidence standard,” it is “not clearly improbable” that a gun was
connected to Trapps’ offense.
II.
On appeal, Trapps argues the firearms enhancement should not apply for two
reasons. First, she renews her argument that the relationship between the firearms at
her house and her offense was insufficient. Second, she contends she neither
possessed nor constructively possessed the firearms because she lacked the intent or
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ability to exercise control over them due to McGowan’s abuse and her mental health
history. She raises this second argument for the first time on appeal.
We generally review the district court’s findings of fact for clear error and its
application of the Sentencing Guidelines de novo. United States v. Campbell, 410
F.3d 456, 466 (8th Cir. 2005). However, we review errors not preserved below only
for plain error. Fed. R. Crim. P. 52(b); United States v. Pirani, 406 F.3d 543, 549 (8th
Cir. 2005). As such, to obtain relief on the ground that she lacked the intent or
ability to exercise control over the firearms, Trapps must show (1) an error, (2) that
is plain, and (3) that affects substantial rights. Johnson v. United States, 520 U.S.
461, 467 (1997). Even if she meets all three conditions, we will exercise our
discretion to grant relief only if “the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (cleaned up).
A two-level enhancement applies if the government proves by a preponderance
of the evidence that “a dangerous weapon (including a firearm) was possessed.”
USSG § 2D1.1(b)(1). Proof of ownership, use, or actual possession is not necessary,
and constructive possession is sufficient. United States v. Atkins, 250 F.3d 1203,
1213 (8th Cir. 2001). The government need only establish that “a temporal and
spa[t]ial relation existed between the weapon, the [offense], and the defendant.” Id.
at 1214. However, the enhancement does not apply if “it is clearly improbable that
the weapon was connected with the offense.” USSG § 2D1.1, cmt. (n.11(A)). And
the mere presence of firearms is not, by itself, a sufficient basis to impose the
enhancement. United States v. Savage, 414 F.3d 964, 966 (8th Cir. 2005).
First, the district court did not err by finding it was not clearly improbable that
the firearms were connected with Trapps’ offense. Trapps concedes there was a
temporal relationship between the firearms and her drug offense, but contends the
spatial relationship is missing. However, evidence showed McGowan prepared and
sold drugs from the home he shared with Trapps and several firearms were found
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inside the home, along with crack cocaine and other evidence of drug trafficking. See
United States v. Green, 889 F.2d 187, 189 (8th Cir. 1989) (affirming the application
of a firearm enhancement for a gun found in defendant’s apartment in which she sold
drugs). Trapps also admitted to helping McGowan sell drugs. Further, finding a gun
inside a woman’s purse strengthens the spatial connection between the firearms and
Trapps’ offense. Given the temporal and spatial relationship of the firearms to the
offense, and the absence of any evidence indicating the firearms were present for
another reason, it was not “clearly improbable” that the firearms were connected with
the offense. See USSG § 2D1.1, cmt. (n.11(A)).
Second, the district court did not plainly err when it found that Trapps
possessed a firearm. Although Trapps’ psychological report indicated she suffered
from mental health problems and from McGowan’s abuse, it did not conclude that she
was unable to control or restrict McGowan from storing firearms in their home, or
that her mental health prevented her from having the intent or ability to control the
firearms. Under the circumstances presented here, we discern no error that is plain.
The judgment of the district court is affirmed.
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