8th Circuit upholds longer sentence for meth dealer because a gun found 2 months earlier…

Record source: CourtListener

United States Court of Appeals For the Eighth Circuit ___________________________ No. 25-1797 ___________________________ United States of America Plaintiff - Appellee v. Benjamin Ray Nordby Defendant - Appellant ____________ Appeal from United States District Court for the Western District of Missouri - Joplin ____________ Submitted: May 11, 2026 Filed: July 15, 2026 [Unpublished] ____________ Before L.R. SMITH, BENTON, and STRAS, Circuit Judges. ____________ PER CURIAM. Benjamin Ray Nordby pleaded guilty to possession of 50 grams or more of methamphetamine with intent to distribute. At sentencing, the district court 1 applied a two-level enhancement for possession of a dangerous weapon based on officers’ 1 The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri. discovery of a firearm along with a pound of marijuana during a traffic stop. See U.S.S.G. § 2D1.1(b)(1). On appeal, Nordby challenges the district court’s application of the enhancement, arguing that his possession of the firearm was not relevant conduct for purposes of his methamphetamine offense. We affirm. I. Background In early September 2023, Oklahoma law enforcement informed the Drug Enforcement Administration (DEA) that Nordby was a drug dealer who belonged to a prison gang; that Nordby had recently moved from Miami, Oklahoma, to Joplin, Missouri; and that Nordby regularly transported large amounts of drugs—primarily methamphetamine—from Oklahoma to Joplin. The DEA confirmed that Nordby was living with his girlfriend in Joplin and began surveillance. In the subsequent days, Nordby traveled from Joplin, Missouri, to Wyandotte and Miami, Oklahoma. During his trips, DEA agents twice observed Nordby meeting Dakota Bricker, a fellow gang member involved in drug distribution. On September 13, 2023, an Oklahoma Highway Patrol officer stopped Nordby for speeding. During the lawful traffic stop, a K-9 officer alerted to the presence of narcotics in the vehicle. Nordby admitted that he had marijuana. A subsequent search of the vehicle resulted in the seizure of one pound of high grade marijuana and a stolen firearm. The marijuana was in two baggies in the vehicle. The firearm was in a plastic bag behind the vehicle’s center console. Officers arrested Nordby for possession with intent to distribute marijuana, possession of controlled dangerous drugs without a tax stamp, and possession of a firearm by a felon. He was released on bond on September 29, 2023. Less than two months later, on November 6, 2023, a Joplin Police Department officer initiated a lawful traffic stop of Nordby’s vehicle. A K-9 officer positively alerted to the presence of narcotics in the vehicle. Officers searched the vehicle and seized 212.1 grams of 100-percent pure methamphetamine in four baggies, a glass -2- pipe, and four cell phones. Nordby and his girlfriend, who was a passenger, were arrested. In a post-arrest interview, Nordby’s girlfriend admitted that she knew of Nordby’s illegal narcotics activities and his prison gang affiliation. Nordby identified Bricker as Nordby’s drug supply source. During his post-arrest interview, Nordby admitted to possessing the methamphetamine and claimed that he was taking it to his daughter’s house. While in custody, Nordby called his daughter and instructed her “to call ‘Brick’ and have ‘Brick’ go to [Nordby’s] home to retrieve the ‘stuff’ [Nordby] had for him.” R. Doc. 33 ¶ 11. In a subsequent call, Nordby’s daughter “confirmed ‘Brick’ had been to [Nordby’s] residence.” Id. During their calls, Nordby “discussed his September 2023 arrest in Oklahoma, specifically related to the seized firearm, and he claimed he had talked to an unidentified female who was going to ‘stand on’ the gun charge for him.” Id. Nordby was charged with possession with intent to distribute 50 grams or more of methamphetamine, and he pleaded guilty without a plea agreement. As part of his guilty plea, Nordby stipulated to a factual basis. He admitted that on November 6, 2023, the methamphetamine was found in his vehicle and that he possessed it with the intent to distribute it. Prior to sentencing, the probation office submitted a presentence report (PSR). The PSR calculated a base offense level of 32 under U.S.S.G. § 2D1.1 based on the methamphetamine from the November 2023 traffic stop, as well as the marijuana from the September 2023 traffic stop. The PSR included, among other things,2 a two-level enhancement for possession of a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1). After crediting Nordby with acceptance of responsibility, the PSR calculated Nordby’s total offense level as 33. That offense level combined with a 2 The PSR also included a two-level enhancement for maintaining a drug house under U.S.S.G. § 2D1.1(b)(1). Nordby objected to application of that enhancement, and the government joined in that objection. The district court sustained the objection. That enhancement is not at issue in this appeal. -3- criminal history category of V resulted in an advisory Guidelines range of 210 to 262 months’ imprisonment. Nordby objected to application of the dangerous weapon enhancement. At sentencing, Nordby argued that the September 2023 traffic stop was a separate occurrence in a different state separated by almost two months involving marijuana, not methamphetamine. The district court overruled Nordby’s objection and applied the firearm enhancement. It explained “that the two incidents are close enough in time that while there were different drugs involved . . . it was within the period of time that Oklahoma had reported that Mr. Nordby was involved in the drug distribution that ultimately led to his [offense conduct].” R. Doc. 45, at 8. The court calculated a total offense level of 31, a criminal history category of V, and an advisory Guidelines range of 168 to 210 months’ imprisonment. The district court varied downward and sentenced Nordby to 144 months’ imprisonment. II. Discussion On appeal, Nordby argues that the district court erred in applying the two- level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon based on his possession of the firearm seized during the September 2023 traffic stop. According to Nordby, the marijuana and firearm recovered from the September 2023 traffic stop are not related to his November 2023 offense for possession with intent to distribute methamphetamine. “Pursuant to § 2D1.1(b)(1), a defendant’s base offense level for a drug offense increases by two levels if ‘a dangerous weapon (including a firearm) was possessed.’” United States v. Ready, 87 F.4th 931, 933 (8th Cir. 2023) (per curiam) (quoting U.S.S.G. § 2D1.1(b)(1)). “For § 2D1.1(b)(1) to apply, the government must prove two things—(1) the gun was possessed and (2) it was not clearly improbable that the weapon was connected to the drug offense.” United States v. Anderson, 618 F.3d 873, 880 (8th Cir. 2010). “The evidence is sufficient to apply the [§ 2D1.1(b)(1)] increase where there is a temporal and spatial relationship between -4- the weapon, the drug trafficking activity

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