HAROLD G. MILLER, PETITIONER V. UNITED STATES OF AMERICA No. 90-6192 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A7) is reported at 910 F.2d 1321. JURISDICTION The judgment of the court of appeals was entered on August 10, 1990. A petition for rehearing was denied on October 12, 1990. The petition for a writ of certiorari was filed on November 9, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Sentencing Commission exceeded its statutory authority by adopting Sentencing Guideline Section 1B1.3, which provides that the sentencing court shall take into account all acts "that were part of the same course of conduct or common scheme or plan as the offense of conviction." 2. Whether the district court violated petitioner's Fifth and Sixth Amendment rights by adjusting the base offense level under Guideline Section 1B1.3(a)(2) to take into account additional instances of narcotics trafficking that were not charged in the indictment. 3. Whether petitioner adequately waived his right to counsel before pleading guilty. 4. Whether the district court properly relied on incriminating statements made by petitioner to a probation officer in determining his sentence. 5. Whether the evidence supported the district court's conclusion that petitioner possessed a weapon during the commission of a drug trafficking offense, which resulted in an increase in his sentence. STATEMENT Petitioner pleaded guilty in the United States District Court for the Eastern District of Tennessee to conspiracy to distribute 1.25 ounces of cocaine, in violation of 21 U.S.C. 841(a) and 846. Petitioner was sentenced under the Sentencing Guidelines to 60 months' imprisonment, to be followed by a five-year term of supervised release. The court of appeals affirmed. 1. The facts underlying petitioner's conviction, which are not in dispute, are set forth in the government's brief filed in the court of appeals and the transcript of the plea proceeding. Gov't C.A. Br. 1; C.A. App. 18-20. Briefly, petitioner sold cocaine to an undercover informant, who was wearing a recording device, on three occasions in 1988. On March 22, petitioner sold the informant 3.439 grams of cocaine hydrochloride which was 97% pure. On March 28, petitioner sold the informant 3.129 grams of cocaine hydrochloride which was 80% pure. On May 11, petitioner sold the informant 27.2 grams of cocaine hydrochloride which was 97% pure. Each transaction took place at petitioner's residence. During the transaction on May 11, petitioner told the informant that he was being supplied with cocaine by a buddy with whom he met about once a week. 2. Petitioner was arrested on October 24, 1988. Later that day, after being advised of his rights, petitioner waived his right to counsel and entered into a written plea agreement. C.A. App. 6-9. In the plea agreement, petitioner agreed to waive his right to an indictment and to plead guilty to conspiring to distribute 1.25 ounces of cocaine between March 1, 1988, and May 11, 1988. He also promised to provide truthful information and to serve as an undercover informant upon request. In exchange, the government agreed not to prosecute petitioner further for cocaine distribution so long as he abided by the terms of the agreement. Pet. App. A2. 3. On March 17, 1989, petitioner appeared before the district court without counsel to enter his guilty plea. At the outset, the court engaged in a colloquy with petitioner to determine whether he understood his right to counsel and the perils of proceeding pro se. The court explained the charge, the potential penalties, and the fact that the Sentencing Guidelines would dictate petitioner's sentencing range. When petitioner insisted on representing himself, the court found that petitioner knowingly and voluntarily waived his right to counsel and petitioner executed a written waiver of counsel form. Pet. App. A2, A3 n.3; C.A. App. 5, 11-13. Petitioner then informed the court that he wished to waive his right to an indictment and plead guilty. After questioning petitioner to determine whether his plea was voluntary, the court accepted his guilty plea. Pet. App. A2; C.A. App. 13-25. The court then referred petitioner to the probation office for the preparation of the presentence report. The following colloquy occurred at that time (Pet. App. A2; C.A. App. 25): THE COURT: (The Assistant U.S. Attorney) will explain that to you and tell you where to go to see the probation officer. Now, that person is very helpful, Mr. Miller. He or she, as the case may be, is an officer of this Court and they'll be getting all the information from you concerning your past, what your problem was with this crime, and they'll submit that report to me and I'll review that and use that, in part, in determining what sentence should be imposed. So be honest and candid with the probation officer, okay? A: Yes, sir. THE COURT: Because you will be working with that person for a long time and, as I say, those people can help you. A: Yes, sir. The court released petitioner on his own recognizance pending sentencing. C.A. App. 25. 4. During a meeting with his probation officer, petitioner revealed that he had purchased approximately one ounce of cocaine per week between February 1987 and October 1988. He explained that he typically used half of the cocaine himself and sold the other half to support his habit. Based on that disclosure, the probation officer calculated that petitioner sold 1,169.5 grams of cocaine over the 20-month period. The probation officer therefore used the 1,169.5 grams of cocaine, rather than the 35.5 grams (1.25 ounces) charged in the information, to establish petitioner's base offense level under the Sentencing Guidelines. As a result, in the presentence report the probation officer determined that petitioner's sentencing range was 63-78 months' (as opposed to 15-21 months') imprisonment. Pet. App. A2; C.A. App. 29, 33. When petitioner learned of the probation officer's recommended sentencing range, he sought and obtained appointed counsel for the sentencing hearing. Pet. App. A2. Prior to the hearing, petitioner's appointed counsel filed a motion to bar the use of the information revealed to the probation officer in the calculation of petitioner's sentence. The district court denied that motion and a subsequent motion for reconsideration. Pet. App. A2. 5. Petitioner was sentenced on August 8, 1989. At the outset of the hearing, the district court asked whether petitioner had complied with the terms of the plea agreement. Although petitioner had not fully cooperated as required by the plea agreement, the government advised the court that it elected to go forward with sentencing. /1/ Through counsel, petitioner also advised the court that he "elected to go forward with the plea under the information." C.A. App. 69. During the hearing, petitioner's counsel expressly informed the court: "In my file there is a motion to withdraw the plea. (Petitioner) has asked that I not file that motion, but instead allow the Court to go ahead with these proceedings." Pet. App. A2; C.A. App. 100. Over petitioner's objection, the district court concluded that petitioner's weekly sales between February 1987 and October 1988 were "relevant conduct" under Guideline Section 1B1.3 that should be included in the calculation of his base offense level. Based on the probation officer's calculation that petitioner had sold 1,169.5 grams of cocaine, the court determined that petitioner's base offense level was 26 under Section 2D1.1(c)(9). The court added two points to the base offense level under Section 2D1.1(b)(1) for possession of a weapon during the offense, but also gave petitioner a two-level reduction under Section 3E1.1(a) for acceptance of responsibility. The resulting sentencing range for petitioner was 63-78 months' imprisonment, based on offense level 26 and criminal history category I. Departing downward, the court sentenced petitioner to 60 months' imprisonment because there were "not any real aggravating factors in this case." Pet. App. A2-A3; C.A. App. 49. 6. The court of appeals affirmed. Pet. App. A1-A7. It first held that petitioner knowingly and intelligently waived his right to counsel before pleading guilty. Id. at A3. Alternatively, the court noted that petitioner expressly declined to seek to withdraw his plea at the sentencing hearing after he obtained appointed counsel. It thus concluded that petitioner's "decision to abide by the terms of his plea agreement after he obtained appointed counsel constitutes a waiver of any sixth amendment violation that may have preceded the appointment of counsel." Ibid. The court of appeals also held that the district court properly applied the Sentencing Guidelines in determining petitioner's sentencing range. It rejected petitioner's claim that Section 1B1.8(a) barred the district court from considering the weekly sales of cocaine that petitioner reported to the probation officer. /2/ It explained that "(s)tatements made to a probation officer * * * cannot be considered as information provided to the 'government' within the meaning of section 1B1.8(a)" because "probation officers still operate on behalf of the court, not the prosecutorial arm of the government contemplated by section 1B1.8(a)." Pet. App. A3-A4 (footnote omitted). The court also found no merit to petitioner's claim that the district court's reliance on his statements to the probation officer violated his Fifth Amendment privilege against self-incrimination. It noted that "'since (petitioner) revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his disclosures were not compelled incriminations.'" Id. at A4 (quoting Minnesota v. Murphy, 465 U.S. 420, 425 (1984)). The court rejected petitioner's argument that the Sentencing Guidelines' scheme warranted the creation of Miranda-type prophylactic warnings to be administered prior to presentence meetings with probation officers. Pet. App. A4. The court of appeals upheld the district court's calculation of petitioner's offense level under the Sentencing Guidelines. It concluded that the district court did not clearly err by finding that the 1,169.5 grams of cocaine sold by petitioner over the 20-month period between February 1987 and October 1988 constituted "relevant conduct" under Section 1B1.3(a)(2). Pet. App. A4. It also concluded that the district court did not clearly err by finding that petitioner had possessed a gun during one of the recorded drug sales to the undercover informant. Id. at A5. Chief Judge Merritt dissented. Pet. App. A5-A7. In his view, the "relevant conduct" provision of Section 1B1.3 exceeds the scope of the enabling legislation, 28 U.S.C. 994(1), to the extent it authorizes an increase in a defendant's offense level based on an uncharged offense. Id. at A5-A6. He also argued that "(a)lmost the entire spectrum of Fifth and Sixth Amendment rights granted to the accused are denied by the literal reading and enforcement" of Section 1B1.3. Id. at A6. Finally, Chief Judge Merritt found the case "troubling because the trial court * * * seriously misled the defendant into making statements to the probation officer which added more than three years to his time." Id. at A7. /3/ ARGUMENT 1. Petitioner first contends that Section 1B1.3 of the Sentencing Guidelines is invalid because it exceeds the scope of the authority granted to the Sentencing Commission in the enabling legislation, 28 U.S.C. 994(1). Pet. 13-19. However, petitioner did not raise that claim in the district court or the court of appeals. See C.A. Br. of Appellant 22-26. He has therefore waived that claim. See, e.g., Solorio v. United States, 483 U.S. 435, 451 n.18 (1987); Berkemer v. McCarty, 468 U.S. 420, 443 (1983). In any event, there is no merit to petitioner's claim. Guideline Section 1B1.3 states that when calculating the base offense level for offenses such as the narcotics trafficking offense for which petitioner was convicted, the district court must consider all acts and omissions that were part of the same course of conduct as the offense of conviction. U.S. Sentencing Comm'n, Guidelines Manual Section 1B1.3 at 1.17 (Jan. 15, 1988). Application Note No. 2 to Guidelines Section 1B1.3 makes clear that "multiple convictions are not required." U.S. Sentencing Comm'n, Guidelines Manual Section 1B1.3, comment., (n.2) at 1.18 (Jan. 15, 1988); see also id. Section 1B1.3, comment. (backg'd) at 1.19 (Jan. 15, 1988) ("the applicability of subsection (a)(2) does not depend upon whether multiple counts are alleged"). /4/ As the Background Notes explain, the "relevant conduct" provision allows the district court to determine the base offense level by including "(c)onduct that is not formally charged." U.S. Sentencing Comm'n, Guidelines Manual Section 1B1.3, comment., (backg'd) at 1.19 (Jan. 15, 1988). Thus, "in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the base offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction." Ibid. The Sentencing Commission's commentary is therefore consistent with the Guidelines themselves and shows that a district court must aggregate drug quantities underlying the count of conviction with those that are not the basis of a conviction to calculate the base offense level. /5/ Contrary to petitioner's contention (Pet. 13-19), Section 1B1.3(a)(2) does not exceed the scope of the authority granted to the Sentencing Commission in the enabling legislation, 28 U.S.C. 994(1). To be sure, as Chief Judge Merritt argued in dissent, 28 U.S.C. 994(1) explicitly authorizes the Commission to impose an "incremental penalty" where a defendant is "'convicted of multiple offenses committed in the same course of conduct,' not where a defendant is convicted only of a single offense during a time period in which he may also have committed other offenses for which he is not charged and convicted." Pet. App. A6. /6/ However, as the Seventh Circuit explained in United States v. Ebbole, 917 F.2d 1495, 1501 (1990), Section 994(1) is "not, as Chief Judge Merritt's view implies, cast in restrictive or exclusive terms." As the Seventh Circuit explained in Ebbole, "Section 994(1) does not restrict the Commission's power to impose incremental penalties for uncharged conduct; it merely directs the Commission to insure that the Guidelines provide additional penalties when defendants are convicted of multiple offenses." Since the only court of appeals to consider the dissenting judge's comments in this case has agreed with the result reached by the majority, petitioner's claim does not warrant further review by this Court. /7/ 2. Petitioner next contends that the application of Section 1B1.3 in this case violated his Fifth and Sixth Amendment rights. Pet. 19-22. Once again, however, petitioner did not raise those claims in the district court or the court of appeals. See C.A. Br. of Appellant 22-26. He has therefore waived them. See, e.g., Solorio v. United States, supra; Berkemer v. McCarty, supra. In any event, there is no merit to petitioner's contention that the application of Section 1B1.3 violates his Fifth and Sixth Amendment righs to notice of the charges against him. Before the Sentencing Guidelines went into effect, district courts could (and did) consider a wide range of information about the defendant at sentencing, including other criminal actions that he committed or for which he was responsible. See 18 U.S.C. 3557 (1976) (renumbered 18 U.S.C. 3661); McMillan v. Pennsylvania, 477 U.S. 79, 92 (1986); United States v. Grayson, 438 U.S. 41 (1978); Williams v. New York, 337 U.S. 241 (1949). The Sentencing Guidelines did not end that practice; instead, they structured the district court's analysis of such information. Thus, by providing that a district court should consider all "relevant conduct" in imposing sentence, including all "acts and omissions that were part of the same course of conduct * * * as the offense of conviction," Guideline Section 1B1.3(a)(2) simply requires the court to take account of conduct that "corresponds to those actions and circumstances that courts typically took into account when sentencing prior to the Guidelines' enactment." United States v. Wright, 873 F.2d 437, 441 (1st Cir. 1989) (Breyer, J.). /8/ There is likewise no merit to petitioner's contention that due process requires the government to prove beyond a reasonable doubt any facts used in applying Section 1B1.3(a)(2) to determine a defendant's sentence. Before the advent of the Sentencing Guidelines, it was settled law that the reasonable doubt standard did not apply to the findings made at sentencing, and that the preponderance standard satisfied due process concerns. McMillan v. Pennsylvania, 477 U.S. at 84-93; United States v. Lee, 818 F.2d 1052, 1057 (2d Cir. 1987), cert. denied, 464 U.S. 956 (1988); United States v. Davis, 710 F.2d 104, 106 (3d Cir.), cert. denied, 464 U.S. 1001 (1983) (collecting cases). Neither the Sentencing Reform Act of 1984, 18 U.S.C. 3553 et seq. and 28 U.S.C. 991-998, nor the Guidelines require the government to bear a greater burden of proof. Indeed, the courts of appeals have uniformly rejected the argument that the government must prove beyond a reasonable doubt any fact used to enhance a defendant's sentence under the Sentencing Guidelines. See, e.g., United States v. Ebbole, 917 F.2d at 1496-1501; United States v. Ross, 905 F.2d 1050, 1054 (7th Cir.), cert. denied, 111 S. Ct. 172 (1990); United States v. Wilson, 900 F.2d 1350, 1353-1354 (9th Cir. 1990); United States v. Frederick, 897 F.2d 490, 492 (10th Cir.), cert. denied, 111 S. Ct. 171 (1990); United States v. Alston, 895 F.2d at 1372-1373; United States v. Silverman, 889 F.2d 1531, 1535 (6th Cir. 1989); United States v. Casto, 889 F.2d 562, 569-579 (5th Cir. 1989), cert. denied, 110 S. Ct. 1164 (1990); United States v. Burke, 888 F.2d 862, 869 (D.C. Cir. 1989); United States v. Guerra, 888 F.2d 247, 250-251 (2d Cir. 1989), cert. denied, 110 S. Ct. 1833 (1990); United States v. McDowell, 888 F.2d 285, 290-291 (3d Cir. 1989); United States v. Urrego-Linares, 879 F.2d 1234, 1237-1238 (4th Cir.), cert. denied, 110 S. Ct. (1989); United States v. Wright, 873 F.2d at 441-442. For that reason, further review of petitioner's claims is plainly not merited. /9/ 3. Petititoner renews his contention that he did not validly waive his right to counsel before he entered his guilty plea. Pet. 24-25. In the first place, however, petitioner has clearly waived that claim, for he expressly declined to seek to withdraw his plea at the sentencing hearing after he obtained appointed counsel. As the court of appeals noted (Pet. App. A3), petitioner's "decision to abide by the terms of his plea agreement (at sentencing) after he obtained appointed counsel constitutes a waiver of any sixth amendment violation that may have preceded the appointment of counsel." In any event, the court of appeals correctly rejected petitioner's claim on the merits. It is well settled that the Sixth Amendment "grants to the accused personally the right to make his defense" through self-representation. Faretta v. California, 422 U.S. 806, 819 (1975). To be sure, self-representation may be undertaken only upon a showing "that an accused was offered counsel but intelligently and understandingly rejected the offer." Carnley v. Cochran, 369 U.S. 506, 516 (1962). In this case, the district court clearly advised petitioner of his right to counsel and warned him of the dangers of self-representation. In addition, the court explained the charge, the potential penalties, and the fact that the Sentencing Guidelines would dictate the range of his sentence. The record thus demonstrates that petitioner intelligently and understandingly waived his right to counsel and insisted on self-representation. Pet. App. A3 n.3; C.A. App. 11-12. Petitioner's fact-bound claim to the contrary does not warrant further review. 4. Petitioner also renews his contention that the district court's use of his statements to the probation officer in determining his sentence violated his Fifth Amendment privilege against self-incrimination. Pet. 25-27. This Court's decision in Minnesota v. Murphy, 465 U.S. 420 (1984), precludes the relief that petitioner seeks. This Court made clear in Murphy that the Fifth Amendment privilege against self-incrimination is not self-executing in the context of a meeting with a probation officer and that a defendant must assert the privilege rather than answer if he desires not to incriminate himself. Id. at 427-429. As the Court explained in Murphy, "if a (defendant) chooses to answer, his choice is considered to be voluntary since he was free to claim the privilege and would suffer no penalty as the result of his decision to do so." Id. at 427. Here, petitioner revealed incriminating information to the probation officer instead of asserting his privilege against self-incrimination. Accordingly, the court of appeals correctly concluded (Pet. App. A3) that petitioner's disclosures were not "compelled" incriminations in violation of his Fifth Amendment privilege. 5. Finally, petitioner renews his contention that the district court improperly increased his offense level under Section 2D1.1(b)(1) of the Sentencing Guidelines for possession of a firearm during the commission of the offense. Pet. 27-28. At the sentencing hearing, petitioner admitted that he owned and possessed various guns, but he denied that any weapons were present during any of the cocaine transactions. The government presented evidence that petitioner had a pistol readily accessible on a nearby coffee table during one of the recorded cocaine transactions with the undercover informant. Pet. App. A2; C.A. App. 4-19. In light of that evidence, the court of appeals properly concluded that the district court's finding that petitioner possessed a weapon during the conspiracy was not clearly erroneous. Pet. App. A5; see also United States v. Green, 889 F.2d 187, 189 (8th Cir. 1989); United States v. McGhee, 882 F.2d 1095, 1099 (6th Cir. 1989). /10/ Petitioner's fact-bound contention to the contrary, which is based solely on his own self-serving denials, plainly does not warrant this Court's review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOSEPH C. WYDERKO Attorney JANUARY 1991 /1/ It was undisputed that petitioner did not satisfy his obligations under the plea agreement. Between October 1989 and March 1989, petitioner provided information to the FBI about his drug activities, but he refused to participate in any undercover activities as required by the plea agreement. Pet. App. A2 n.1; Pet. 6. /2/ Section 1B1.8(a) provides: Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others, and the government agrees that self-incriminating information so provided will not be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement. /3/ Judge Martin separately concurred. He "concur(red) in Judge Guy's analysis of this case under existing precedent in this circuit with the hope that we shall reconsider our interpretation of the 'relevant conduct' provisions in light of the concerns expressed in Chief Judge Merritt's dissent." Pet. App. A5. However, the en banc court denied petitioner's suggestion of rehearing en banc. Pet. App. B1. /4/ The commentaries to Sections 1B1.3 and 3D1.2 were amended effective November 1, 1990, to make this point even more explicit. See U.S. Sentencing Comm'n, Guidelines Manual, Appendix C, amendment 309 at C.163 (Nov. 1, 1990). /5/ For that reason, the courts of appeals have uniformly rejected the argument that relevant conduct under Section 1B1.3(a)(2) consists solely of crimes of which a defendant has been convicted. See, e.g., United States v. Rutter, 897 F.2d 1558 (10th Cir.), cert. denied, 111 S. Ct. 88 (1990); United States v. Alston, 895 F.2d 1362 (11th Cir. 1990); United States v. White, 888 F.2d 490 (7th Cir. 1989); United States v. Blanco, 888 F.2d 907 (1st Cir. 1989); United States v. Ykema, 887 F.2d 697 (6th Cir. 1989), cert. denied, 110 S. Ct. 878 (1990); United States v. Williams, 880 F.2d 804 (4th Cir. 1989); United States v. Mann, 877 F.2d 688 (8th Cir. 1989); United States v. Taplette, 872 F.2d 101 (5th Cir.), cert. denied, 110 S. Ct. 128 (1989); United States v. Guerrero, 863 F.2d 245 (2d Cir. 1988). /6/ 28 U.S.C. 994(1) provides in pertinent part: The Commission shall insure that the guidelines promulgated pursuant to subsection (a)(1) reflect -- (1) the appropriateness of imposing an incremental penalty for each offense in a case in which a defendant is convicted of -- (A) multiple offenses committed in the same course of conduct that result in the exercise of ancillary jurisdiction over one or more of the offenses; and (B) multiple offenses committed at different times, including those cases in which the subsequent offense is a violation of section 3146 (penalty for failure to appear) or is committed while the person is released pursuant to the provisions of section 3147 (penalty for an offense committed while on release) of title 18; * * *. /7/ This petition need not be held pending the resolution of Braxton v. United States, No. 90-5358. In that case, the district court sentenced the defendant based on a Guideline other than the one applicable to his offense because it found that that Guideline more accurately defined defendant's conduct. In this case, petitioner pleaded guilty to conspiracy involving a controlled substance, and his offense level was determined by the Guideline applicable to that offense. /8/ Judge Breyer, a member of the Sentencing Commission, explained in United States v. Blanco, 888 F.2d at 909-910, that Section 1B1.3 reflects a compromise adopted by the Commission between a "real offense" sentencing system and a "charge offense" system. The Sentencing Commission's analysis of pre-Guidelines sentencing practices revealed that, with respect to drug offenses, the actual period of imprisonment served by an offender reflected the actual amount of drugs involved in the crime, not the amount charged in the indictment or proved at trial. At the same time, considerations of fairness and efficiency argued in favor of tying the sentence to the facts proved at trial. The Commission therefore adopted a compromise under which a district court would determine the applicable Guideline by looking to the offense of conviction, but would make adjustments based on the offender's actual conduct. See also U.S. Sentencing Comm'n, Guidelines Manual at 1.4-1.5 (Nov. 1, 1990); Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 8-12, 25-28 (1988). /9/ Petitioner also suggests (Pet. 22) that the inclusion of drug quantities involved in transactions before the November 1, 1987, effective date of the Sentencing Guidelines in the calculation of his offense level violates the Ex Post Facto Clause. The courts of appeals, however, have uniformly rejected that claim. See United States v. Cusack, 901 F.2d 29, 32 (4th Cir. 1990); United States v. Terzado-Madruga, 897 F.2d 1099, 1124 (11th Cir. 1990); United States v. Ykema, 887 F.2d 697, 700 (6th Cir. 1989), cert. denied, 110 S. Ct. 878 (1990); United States v. Allen, 886 F.2d 143, 145-146 (8th Cir. 1989). /10/ Application Note No. 3 in the commentary to Section 2D1.1 clearly provides: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The (two-level) adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.