United States v. Hanberry ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4352
BASHAWN LEE HANBERRY, a/k/a BO,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4382
EDDIE JEROD HESTER, a/k/a E-Dog,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, Sr., District Judge.
(CR-94-185)
Submitted: September 30, 1997
Decided: November 19, 1997
Before HALL, WILKINS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
John Stuart Bruce, Acting Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina; Wil-
liam C. Ingram, FLOYD & JACOBS, Greensboro, North Carolina,
for Appellants. Walter C. Holton, Jr., United States Attorney, Benja-
min H. White, Jr., Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Bashawn Lee Hanberry and Eddie Jerod Hester were convicted of
conspiracy to possess with intent to distribute and to distribute
cocaine base in violation of 21 U.S.C. § 846 (1994) and were sen-
tenced to 375 months and 360 months in prison respectively. They
appeal their sentences, contending that the district court erred in
imposing a two-level increase in offense level for possession of a fire-
arm. See U.S. Sentencing Guidelines Manual§ 2D1.1(b)(1) (1996).
Finding no error, we affirm.
Appellants conspired with others to distribute crack cocaine in
a housing project in Durham, North Carolina, through a social orga-
nization called the "Pimps." Several witnesses, including co-
conspirators, testified regarding Appellants' participation in the con-
spiracy and the conspirators' regular possession of firearms in
connection with drug activity. There was evidence that Hanberry pur-
chased an AK-47 look-alike Norinco MAC-90 semiautomatic rifle at
a pawn shop using an alias and possessed this firearm at a residence
used for "cooking" powder cocaine into crack cocaine and distributing
the cocaine to the "Pimps." Police recovered this rifle and ammuni-
tion from Hanberry's residence upon execution of a search warrant.
With respect to Hester, there was evidence closely linking him with
the "Pimps" and Hanberry's drug distribution activities. At least one
officer testified at trial that during a traffic stop, he seized crack
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cocaine and two firearms from a vehicle driven by Hester. The weap-
ons belonged to two passengers in the vehicle, who were members of
the "Pimps." Officers stopped the vehicle because shots had recently
been fired at officers in the neighborhood. The evidence disclosed
that one of the weapons found in the vehicle had been recently fired.
Officers also seized thirty rocks of crack cocaine as a result of the
stop.
Both Appellants were initially convicted and sentenced for the con-
spiracy and carrying or using a firearm during or in relation to a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1) (1994). On
direct appeal, this Court affirmed Appellants' conspiracy convictions
and remanded to the district court to determine whether the
§ 924(c)(1) convictions should be vacated in light of Bailey v. United
States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-
7448, 94-7492). See United States v. Hanberry , 1996 WL 121723 (4th
Cir. Mar. 20, 1996) (Nos. 95-5110, 95-5111, 65-5118, 95-5119, 95-
5120) (unpublished), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3260(U.S. Oct. 7, 1996) (Nos. 95-9342, 95-9459). The district court subse-
quently vacated the § 924(c)(1) convictions and scheduled a resen-
tencing on the conspiracy convictions. During this sentencing, over
Appellants' objections, the court imposed a two-level increase in
offense level under USSG § 2D1.1 in sentencing both Appellants for
possession of a firearm during the drug conspiracy.
Appellants contend that the district court erred in increasing their
base offense levels for possession of a firearm because the Govern-
ment did not prove a sufficient nexus between possession of a firearm
and drug activity. The Government must only prove that an enhance-
ment is applicable by a preponderance of the evidence, and the district
court's factual determinations must be upheld unless they are clearly
erroneous. See United States v. Urrego-Linares , 879 F.2d 1234, 1238-
39 (4th Cir. 1989). A defendant "possesses" a firearm for purposes of
USSG § 2D1.1(b)(1) "if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense." USSG
§ 2D1.1, comment n.3; see United States v. Hunter, 19 F.3d 895, 896
(4th Cir. 1994). Additionally, a firearms enhancement is permissible
if possession of a firearm by a co-conspirator was reasonably foresee-
able to the defendant. United States v. Kimberlin, 18 F.3d 1156, 1160
(4th Cir. 1994).
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We find the court's imposition of the § 2D1.1 enhancement for
both Appellants was supported by the evidence. Both Appellants were
active participants in a conspiracy to distribute drugs. Witnesses testi-
fied that members of the conspiracy were frequently seen with fire-
arms, in relation to the drug trafficking. Many observed Hanberry
with a firearm which he himself purchased and stored at a residence
used for drug distribution. Hester also played an active role in the
conspiracy to distribute drugs. Furthermore, both firearms and
cocaine were found in a vehicle he was driving. From this evidence,
we conclude that co-conspirators' possession of firearms during the
drug distribution conspiracy was reasonably foreseeable to Hester.
We therefore affirm Appellants' sentences. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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