United States v. Duffy , 30 F. App'x 240 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4273
GREGORY LEE DUFFY, a/k/a G,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4336
JAMES SYLVESTER JONES, a/k/a Big
Jimmy,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-97-248-L)
Argued: January 25, 2002
Decided: March 11, 2002
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed in part, vacated in part, and remanded for resentencing by
unpublished per curiam opinion.
2 UNITED STATES v. DUFFY
COUNSEL
ARGUED: G. Godwin Oyewole, Washington, D.C., for Appellant
Duffy; Marc Seguinot, LAW OFFICES OF MARC SEGUINOT,
Fairfax, Virginia, for Appellant Jones. Christine Manuelian, Assistant
United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: Thomas M. DiBiagio, United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellants Gregory Duffy and James Jones were charged in a
multi-count drug conspiracy indictment and were each convicted of
conspiracy to distribute and possess with intent to distribute cocaine
and cocaine base and of a substantive distribution charge. See 21
U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2001). The district court
sentenced Duffy to concurrent terms of 235 months imprisonment and
Jones to concurrent terms of 292 months imprisonment. Duffy and
Jones appeal, raising various challenges to their convictions and sen-
tences. We affirm the convictions of Duffy and Jones, and we like-
wise affirm Duffy’s sentence, but we vacate Jones’s sentence and
remand for resentencing.
I.
The indictment alleged that Jones, Duffy, and seven others were
members of a large-scale drug conspiracy operating on Maryland’s
Eastern Shore from July 1995 to August 1996. The government’s evi-
dence against Duffy and Jones came primarily from the testimony of
three cooperating co-conspirators—James Cephas, Troy Perkins, and
James Deshields. Perkins worked undercover for the Drug Enforce-
UNITED STATES v. DUFFY 3
ment Administration during much of the investigation, and recordings
were made of some meetings and telephone conversations between
Perkins and the defendants. In general terms, the testimony of
Cephas, Perkins, and Deshields established that Jones supplied large
quantities of cocaine powder to various members of the conspiracy,
including Cephas, Perkins, and Demetrius Davis.
Cephas testified that he obtained approximately ten kilograms of
cocaine powder from Jones between 1994 and 1996. Deshields testi-
fied that from the winter of 1994 until June 1996, he regularly
obtained cocaine from Demetrius Davis, who converted the cocaine
powder into crack cocaine at Deshields’s request. Davis told Desh-
ields that Jones was his supplier, and Deshields sometimes obtained
cocaine powder directly from Jones. From April through July 1996,
Duffy worked for Deshields on a daily basis, selling crack cocaine
that Deshields "fronted" to him. During this time, Deshields paid
Duffy between $1000 and $2000 each week. Duffy was sometimes
present when the cocaine powder was converted into crack cocaine,
and he "stashed" the crack cocaine at his house for Deshields.
Jones was arrested in April 1998 and his home and his car-detailing
business were searched. No drugs were found in either location, but
a gym bag and plastic bags with cocaine residue were found at the
business, and a shaving kit with cocaine residue was found in the
trunk of his car. During the search of Jones’s home, a loaded assault
pistol and a loaded AK-47 assault rifle were found in a dresser drawer
in Jones’s bedroom, and a 9-mm handgun loaded with Black Talon
bullets was found on the floor by the bed. Additional ammunition and
two loaded magazines for the AK-47 were also found during the
search of Jones’s home. The district court at sentencing relied on this
evidence to enhance Jones’s base offense level by two levels. See
U.S.S.G. § 2D1.1(b)(1) (1998).
II.
Jones and Duffy both argue that the district court erred by denying
their motions for severance. The essence of Jones’s argument is that
he was simply a dealer of cocaine powder who sold to other drug
dealers, but that he was not involved in the sale of crack cocaine. The
government’s evidence against Duffy, however, clearly showed that
4 UNITED STATES v. DUFFY
Duffy was involved in the sale of crack cocaine. Jones contends that
the government failed to establish any meaningful connection
between Jones and Duffy and that the jury confused the evidence
against him and the evidence against Duffy, wrongly concluding that
Jones was involved with the distribution of crack cocaine. Jones also
contends that the case was so complex that it was unlikely that the
jury would decide his case based only on the evidence against him.
In a similar vein, Duffy argues that the evidence against him was min-
imal and that there was nothing to connect him to much of the evi-
dence against Jones. Duffy suggests that if the jury had not been
tainted by the evidence against Jones (which would not have been
admissible against Duffy had he been tried separately), it might not
have convicted Duffy. We find no merit in these arguments.
Defendants who are alleged to have participated in the same trans-
action or series of transactions may be charged in a single indictment.
See Fed. R. Crim. P. 8(b). "The basic rule is that persons who have
been indicted together, particularly for conspiracy, should be tried
together." United States v. Tipton, 90 F.3d 861, 883 (4th Cir. 1996).
If a defendant will be prejudiced by a joint trial, however, a district
court has the discretion to order separate trials. See Fed. R. Crim. P.
14. "The party moving for severance must establish that actual preju-
dice would result from a joint trial, and not merely that a separate trial
would offer a better chance of acquittal." United States v. Reavis, 48
F.3d 763, 767 (4th Cir. 1995) (citation, alteration, and internal quota-
tion marks omitted). "[A] district court should grant a severance under
Rule 14 only if there is a serious risk that a joint trial would compro-
mise a specific trial right of one of the defendants, or prevent the jury
from making a reliable judgment about guilt or innocence." Zafiro v.
United States, 506 U.S. 534, 539 (1993). A district court’s decision
on a severance motion is reviewed only for an abuse of discretion. See
United States v. Ford, 88 F.3d 1350, 1361 (4th Cir. 1996).
Although the government presented relatively little evidence estab-
lishing a direct connection between Jones and Duffy, the evidence did
show some connection—for example, the evidence showed that Jones
supplied cocaine powder to James Deshields, who supplied crack
cocaine to Duffy. That there may have been more or stronger evi-
dence against one or the other of the defendants is insufficient to
require severance. See United States v. Brooks, 957 F.2d 1138, 1145
UNITED STATES v. DUFFY 5
(4th Cir. 1992) ("The fact that the evidence against one defendant is
stronger than the evidence against other defendants does not in itself
justify severance."); United States v. Mitchell, 733 F.2d 327, 331 (4th
Cir. 1984) ("Disparity in the evidence among the parties . . . is a
proper ground [for severance] only in the most extreme cases. . . ."
(internal quotation marks omitted)). Moreover, nothing in the record
suggests that the evidence was so confusing that the jury would have
been unable to compartmentalize the evidence against Jones and the
evidence against Duffy. Under these circumstances, we cannot con-
clude that the district court abused its discretion by denying the appel-
lants’ severance motions.
III.
Duffy raises two issues stemming from the conduct of the govern-
ment’s rebuttal case. A summary of certain events occurring during
the trial is necessary to understand these challenges.
At trial, Duffy’s wife testified in his defense. Mrs. Duffy stated that
during the time that James Deshields claimed Duffy was selling crack
cocaine for him on a daily basis, Duffy was in fact working at various
jobs. She testified that Duffy worked for Roadway Package System
from 1993 until mid-1995. Duffy was then unemployed for a few
weeks, during which time he did odd jobs at A&L Service Center,
where Mrs. Duffy worked. He then went to work for Federal Express,
where he continued to work until he was arrested in April 1998. Dur-
ing cross-examination, Mrs. Duffy specified that Duffy worked at
A&L Service Center in April 1996, and began working for Federal
Express in May or June of 1996. She also indicated that Duffy
obtained his employment with Federal Express through Vision tempo-
rary employment agency.
After Mrs. Duffy testified, DEA Agent Rivello contacted Federal
Express to verify when Duffy worked there. The government sought
to admit as rebuttal evidence a copy of Duffy’s Federal Express appli-
cation obtained by Agent Rivello. The application, which was filled
out by Duffy, was dated November 5, 1996, and showed that Duffy
was hired by Federal Express in February 1997. The application did
not indicate that he had previously worked for Federal Express. The
government therefore argued that the application showed that Duffy
6 UNITED STATES v. DUFFY
was not working for Federal Express during April-July 1996, the
period that James Deshields claimed that Duffy was selling crack
cocaine for him.
Duffy initially objected to the use of the application because the
government did not intend to call the Federal Express records custo-
dian. Counsel for Duffy then argued that Duffy first worked for Fed-
eral Express through the temporary agency, and that Duffy filled out
the application in order to become a permanent Federal Express
employee. Counsel for Duffy therefore argued that the application
was not inconsistent with Mrs. Duffy’s testimony and that the govern-
ment should not be allowed to use the application to impeach her tes-
timony. The district court resolved the issue by directing the attorneys
for the government and Duffy to call Federal Express to see if it had
any documents establishing that Duffy worked there as a temporary
employee before he was hired as a permanent employee. Counsel for
Duffy stated that he did not "have any problem doing that." Supp. J.A.
791. After a short recess, the parties returned to the courtroom, and
counsel for the government stated that "it’s been cleared up and I
think we can go ahead with Agent Rivello testifying to it." Supp. J.A.
793.
On direct examination by the government, Agent Rivello testified
that the application was dated November 5, 1996, and showed that
Duffy was hired by Federal Express in February 1997. Rivello
explained that the application did not list any prior employment with
Federal Express, but that it did show Duffy’s then-current employer
as Vision Temporary Agency. Rivello testified that he contacted the
employment agency and was informed that Duffy worked for the
agency from August 1996 through February 1997, and that he was
assigned to Federal Express during that period. Rivello also testified
that the Federal Express application did not show that Duffy had ever
worked for A&L Service Center, and that he had contacted A&L,
which had no employment records for Duffy. Counsel for Duffy
cross-examined Rivello about his conversation with the owner of
A&L Service Center, but at no point did Duffy raise any objection to
any portion of Rivello’s rebuttal testimony.
On appeal, Duffy contends that the government’s presentation of
Agent Rivello’s testimony amounted to a violation of the govern-
UNITED STATES v. DUFFY 7
ment’s disclosure obligations. Duffy argues that while his trial attor-
ney knew about the phone call to Federal Express, Agent Rivello
failed to disclose that he also contacted the temporary agency and
A&L Service Center during the break. Duffy claims that trial counsel
had "prepared a strategy, during rebuttal, of addressing only the Fed-
eral Express issue," and that "the defense was caught off guard when
the Agent revealed, for the first time, during rebuttal that he had addi-
tional information from Visions Temp Agency and Mr. Majette, of
A&L Service Center." Brief of Appellants at 37-38. Duffy contends
that this failure to disclose violated Rule 16 of the Federal Rules of
Criminal Procedure and that he was substantially prejudiced, because
Rivello’s testimony "effectively shattered Mr. Duffy’s defense and
the credibility of Tammy Duffy." Brief of Appellants at 40.
The government disagrees with part of the factual premise of this
argument, stating in its brief that Duffy’s trial attorney (who does not
represent Duffy in this appeal) actually spoke to an employee of the
temporary agency before Agent Rivello took the stand. This assertion
is borne out by the record, see Supp. J.A. 797, and we therefore will
limit our consideration of this issue to Duffy’s claim that the govern-
ment should have disclosed Agent Rivello’s conversation with the
owner of A&L Service Center. Because Duffy never objected to this
testimony and never argued that the government had a duty to dis-
close the evidence, his claim is reviewed for plain error only. See,
e.g., United States v. Godwin, 272 F.3d 659, 679 (4th Cir. 2001). In
this case, Duffy has failed to establish the existence of any error, plain
or otherwise.
The Federal Rules of Criminal Procedure require the government
to disclose certain statements made by the defendant that are within
the government’s control. See Fed. R. Crim. P. 16(a)(1)(A). The gov-
ernment must likewise disclose documents and other tangible objects
in its possession that "are material to the preparation of the defen-
dant’s defense or are intended for use by the government as evidence
in chief at the trial, or were obtained from or belong to the defendant."
Fed. R. Crim. P. 16(a)(1)(C).
The record indicates that the government provided the Federal
Express application to Duffy as soon as it was obtained, and Duffy
does not contend otherwise. The government therefore satisfied any
8 UNITED STATES v. DUFFY
obligation it had to disclose the application or information contained
therein. See Fed. R. Crim. P. 16(c) (requiring a party to "promptly
notify" the other party if it discovers additional evidence subject to
disclosure under Rule 16). Any oral statements made to Agent Rivello
by the owner of A&L Service Center simply do not fall within the
scope of Rule 16.1 See Fed. R. Crim. P. 16(a)(2) (stating that Rule
16 "does not authorize the discovery . . . of statements made by gov-
ernment witnesses or prospective government witnesses except as
provided in 18 U.S.C. § 3500"); 18 U.S.C.A. § 3500(b) (West 2000)
("After a witness called by the United States has testified on direct
examination, the court shall, on motion of the defendant, order the
United States to produce any statement . . . of the witness in the pos-
session of the United States which relates to the subject matter as to
which the witness has testified."). We therefore conclude that the gov-
ernment did not breach any disclosure obligation in the course of the
presentation of its rebuttal case.2
IV.
Jones challenges his conspiracy conviction, arguing that the evi-
dence was insufficient to show that he was a member of a conspiracy
to distribute crack cocaine. We must affirm Jones’s conviction "if
there is substantial evidence, taking the view most favorable to the
Government, to support it." Glasser v. United States, 315 U.S. 60, 80
(1942). "[S]ubstantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a conclusion
of a defendant’s guilt beyond a reasonable doubt." United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
1
Duffy also claims that the government’s actions violated a standing
discovery order issued by the district court. While no such order is
included in the Joint Appendix, Duffy does not contend that the obliga-
tions imposed by the order differ in any respect from the obligations
imposed by Rule 16.
2
Duffy also argues for the first time on appeal that the government’s
failure to call the Federal Express records custodian before introducing
the Federal Express application violated his rights under the Confronta-
tion Clause. We reject that claim as wholly without merit.
UNITED STATES v. DUFFY 9
To prove the existence of the conspiracy, the government must
establish that: (1) an agreement existed between two or more persons
to distribute and possess with intent to distribute cocaine and crack
cocaine; (2) the defendant knew about the conspiracy; and (3) the
defendant knowingly and voluntarily became a part of the conspiracy.
See Burgos, 94 F.3d at 857. Jones concedes that a drug conspiracy
existed, but he argues that the government failed to show that he was
a member of that conspiracy. Jones contends that the evidence simply
established that he was a seller of large quantities of powder cocaine
and that there was no evidence from which it could be inferred that
he knowingly became a part of the conspiracy to distribute crack
cocaine. We disagree.
The government’s evidence established that Jones regularly distrib-
uted large amounts of cocaine powder to various members of the con-
spiracy. For example, James Cephas, one of the cooperating co-
defendants, testified that from October 1995 through May 1996, Jones
regularly "fronted" him cocaine in amounts ranging from nine ounces
to one kilogram. The jury could reasonably infer the existence of a
conspiracy from this consistent pattern of fronting a large quantity of
drugs over an extended period of time. See United States v. Mills, 995
F.2d 480, 485 n.1 (4th Cir. 1993) ("[E]vidence of a buy-sell transac-
tion, when coupled with a substantial quantity of drugs, would sup-
port a reasonable inference that the parties were coconspirators.");
United States v. Moran, 984 F.2d 1299, 1303 (1st Cir. 1993) ("A pat-
tern of sales for resale between the same persons, together with details
supplying a context for the relationship, might well support a finding
of conspiracy."). Because there was sufficient evidence from which
the jury could find the existence of a conspiracy, the absence of any
direct evidence of an explicit agreement between Jones and the other
members of the conspiracy is immaterial. See, e.g., United States v.
Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984) (explaining that a crimi-
nal conspiracy "can be shown by circumstantial evidence such as [the
defendant’s] relationship with other members of the conspiracy, the
length of this association, his attitude, conduct, and the nature of the
conspiracy").
And while the evidence showed that Jones himself only sold pow-
der cocaine, and never crack cocaine, that does not undermine Jones’s
conviction. The government’s evidence established that Jones was
10 UNITED STATES v. DUFFY
well aware that his cocaine powder was being converted into crack
cocaine. When one batch of powder did not convert properly, Cephas
complained to Jones about it and cooked a gram of cocaine in Jones’s
presence to show him what was happening. In addition, the govern-
ment’s evidence established that Jones once gave advice to Deshields
about cooking the powder into an oil base. This evidence is sufficient
to connect Jones to the conspiracy to distribute crack, even if Jones
himself never sold crack. See United States v. Banks, 10 F.3d 1044,
1054 (4th Cir. 1993) ("It is of course elementary that one may be a
member of a conspiracy . . . without taking part in the full range of
its activities. . . ." (emphasis added)); see also Burgos, 94 F.3d at 862(explaining that "the Government must prove the existence of a con-
spiracy beyond a reasonable doubt, but upon establishing the conspir-
acy, only a slight connection need be made linking a defendant to the
conspiracy to support a conspiracy conviction, although this connec-
tion also must be proved beyond a reasonable doubt"). We therefore
conclude that the government presented sufficient evidence from
which the jury could find Jones guilty of the conspiracy charge.
V.
Jones and Duffy also raise various challenges to their sentences.
A.
Both Duffy and Jones challenge their sentences in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.
Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), petition for cert.
filed, Sept. 20, 2001 (No. 01-6398). The indictment in this case did
not allege the quantity of drugs involved. Therefore, under Apprendi
and Promise, Duffy and Jones could not be sentenced on each count
of conviction to more than the twenty-year maximum sentence autho-
rized by 21 U.S.C.A. § 841(b)(1)(C) (West Supp. 2001), which gov-
erns offenses involving an unspecified quantity of drugs. See
Promise, 255 F.3d at 156. Because the defendants raise this issue for
the first time on appeal, our review is for plain error only. See United
States v. Angle, 254 F.3d 514, 517 (4th Cir.) (en banc), cert. denied,
122 S. Ct. 309 (2001).
Duffy received a sentence of 235 months on both counts of convic-
tion. Accordingly, no Apprendi error occurred. See id. at 518. Jones,
UNITED STATES v. DUFFY 11
however, received sentences of 292 months, which exceed the
twenty-year maximum authorized by the facts as found by the jury.
Nonetheless, we conclude that Jones cannot establish that this error
affected his substantial rights. See, e.g., United States v. Stewart, 256
F.3d 231, 252 (4th Cir.) (explaining that plain error will be noticed
only if, inter alia, the error affects the defendant’s substantial rights),
cert. denied, 122 S. Ct. 633 (2001).
Jones was convicted on two counts of the indictment—conspiracy
and a substantive distribution count. "In the case of multiple counts
of conviction, the guidelines instruct that if the total punishment man-
dated by the guidelines exceeds the highest statutory maximum, the
district court must impose consecutive terms of imprisonment to the
extent necessary to achieve the total punishment." United States v.
White, 238 F.3d 537, 543 (4th Cir.), cert. denied, 121 S. Ct. 2235(2001); see U.S.S.G. § 5G1.2(d). Therefore, even though the sentence
on each count of Jones’s conviction is limited by Apprendi and Prom-
ise to 240 months, the district court would have been obligated by
section 5G1.2(d) to structure Jones’s sentences to reach the 292
months mandated by the guidelines. Because the sentence imposed by
the district court was not longer than the sentence to which Jones
would otherwise have been subject, the Apprendi error did not affect
Jones’s substantial rights. See White, 238 F.3d at 542-43.
B.
When calculating Jones’s base offense level, the district court con-
cluded that Jones should be held responsible for at least 1.5 kilograms
of crack cocaine, which resulted in a base offense level of 38. Jones
appears to challenge both the quantity determination and the decision
to hold him responsible for crack cocaine rather than powder cocaine.
Jones contends that the evidence upon which the quantity determina-
tion was made—the testimony of his co-conspirators—was not reli-
able because it came from convicted felons who were testifying under
plea agreements that offered the possibility of reduced sentences and
because it was not supported by any other evidence. Jones also argues
that while he could have reasonably foreseen that his powder cocaine
was being converted into crack, he did not agree to participate in the
distribution of crack, and he therefore should be held responsible only
for powder cocaine. We disagree.
12 UNITED STATES v. DUFFY
The testimony of Cephas, Perkins, and Deshields established that
Jones was involved with large quantities of cocaine powder (at least
ten kilograms sold to Cephas alone), and the evidence likewise estab-
lished that Jones knew that most, if not all, of that powder cocaine
was being converted into crack cocaine. This evidence is more than
sufficient to support the district court’s conclusion that Jones was
responsible for at least 1.5 kilograms of crack cocaine. That the evi-
dence came from drug dealers who Jones contends should not be
believed is not a reason to reverse the district judge’s factual conclu-
sion as to the quantity of drugs that should be attributed to Jones. See
United States v. Fisher, 58 F.3d 96, 100 (4th Cir. 1995) ("Issues
involving the quantity of drugs properly attributable to a defendant
are typically questions of fact for resolution by the district court, and
we will overturn the district court’s determinations only if they are
clearly erroneous. Similarly, the credibility of a testifying co-
conspirator is for the sentencing judge to assess." (citation omitted)).
The evidence discussed above that supports Jones’s conviction for
conspiring to distribute crack cocaine is likewise sufficient to support
the district court’s decision to hold Jones responsible for crack
cocaine rather than powder cocaine. See U.S.S.G. § 1B1.3(a)(1)(B)
(defining relevant conduct in the case of a jointly undertaken criminal
activity as including "all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity").
C.
As noted above, a loaded AK-47, two loaded handguns, and extra
ammunition and magazines were found in Jones’s home when he was
arrested in 1998. During sentencing, the district court applied a two-
level enhancement to Jones’s base offense level for his possession of
a firearm in connection with his drug offenses, pursuant to section
2D1.1(b)(1) of the Sentencing Guidelines. On appeal, Jones contends
that the district court erred in applying the enhancement because the
government failed to connect his possession of the weapons to his
drug crimes. We agree.
Section 2D1.1(b)(1) provides for a two-level enhancement "[i]f a
dangerous weapon (including a firearm) was possessed" in connection
with the drug offense. U.S.S.G. § 2D1.1(b)(1) (1998). The commen-
tary to section 2D1.1 explains that the weapons enhancement should
UNITED STATES v. DUFFY 13
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). The government need not establish a perfect overlap
between the possession of the firearm and the commission of the drug
offense before the enhancement will be proper. That is, "enhancement
under Section 2D1.1(b)(1) does not require proof of precisely concur-
rent acts, for example, gun in hand while in the act of storing drugs,
drugs in hand while in the act of retrieving a gun." United States v.
Harris, 128 F.3d 850, 852 (4th Cir. 1997) (alteration and internal quo-
tation marks omitted). Instead, "possession of the weapon during the
commission of the offense is all that is needed to invoke the enhance-
ment." United States v. Apple, 962 F.2d 335, 338 (4th Cir. 1992);
accord United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001)
("In order to prove that a weapon was present, the Government need
show only that the weapon was possessed during the relevant illegal
drug activity."). Evidence of firearms in proximity to illegal drugs can
support a conclusion that the firearms were possessed during the com-
mission of the drug offense. See Harris, 128 F.3d at 852 (noting that
"the proximity of guns to illicit narcotics can support a district court’s
enhancement of a defendant’s sentence under Section 2D1.1(b)(1)").
In this case, although drug residue was found at Jones’s business
and there was evidence establishing that drug transactions occurred at
the business, no guns or ammunition were found there. Instead, the
guns and ammunition were found in Jones’s home more than a year
after the end of the conspiracy as charged in the indictment, but no
drugs, drug residue, or drug paraphernalia were found at the house.
As the government concedes, there was no evidence presented at trial
or during sentencing that any drug transactions occurred at Jones’s
home, nor was there any evidence that any other acts in furtherance
of the conspiracy took place at Jones’s home. See Apple, 962 F.2d at
338 (noting, as to the defendant’s argument that "there must be some
geographical and temporal proximity between the weapon and the
commission of the offense, . . . it is clear under the Guidelines that
when the offense committed is conspiracy, these proximity conditions
are met when the weapon is discovered in a place where the conspir-
acy was carried out or furthered" (emphasis added)). The government
likewise failed to present any evidence establishing that Jones was
known to carry a gun during drug transactions or that otherwise
placed a gun in Jones’s hand (literally or figuratively) during the
14 UNITED STATES v. DUFFY
course of the conspiracy. Cf. McAllister, 272 F.3d at 234 (reversing
section 2D1.1(b)(1) enhancement where the evidence established only
that the defendant possessed a gun on various occasions, but did not
establish that the defendant possessed a gun during the drug transac-
tions for which he was convicted).
Under these circumstances, we conclude that the government failed
to carry its burden of establishing the propriety of the section
2D1.1(b)(1) enhancement. See, e.g., United States v. Urrego-Linares,
879 F.2d 1234, 1239 (4th Cir. 1989). We therefore vacate Jones’s
sentence and remand for resentencing.3
VI.
For the foregoing reasons, we affirm Duffy’s convictions and sen-
tence. We also affirm Jones’s convictions, but we vacate his sentence
and remand for resentencing in accordance with this opinion.
AFFIRMED IN PART; VACATED IN PART
AND REMANDED FOR RESENTENCING
3
The government suggests that the enhancement was proper given the
dangerous nature of the weapons and the fact that they were found fully
loaded and in easily accessible locations. In this case, however, we can-
not conclude that these facts are sufficient, in and of themselves, to sup-
port the offense-level enhancement under section 2D1.1.