United States v. Locklear ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4269
RONNIE LOCKLEAR,
Defendant-Appellant.
Appeal from the United States District Court for the
Middle District of North Carolina, at Winston-Salem.
William L. Osteen, Sr., District Judge.
(CR-93-231)
Submitted: October 31, 1997
Decided: November 26, 1997
Before ERVIN, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Michael W. Patrick, HAYWOOD, DENNY & MILLER, L.L.P., Dur-
ham, North Carolina, for Appellant. Walter C. Holton, Jr., United
States Attorney, Benjamin 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Unpublished opinions are not binding precedent in this circuit.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:
Appellant Ronnie Locklear was initially convicted of one count
each of conspiracy to distribute cocaine, possession of cocaine, and
using or carrying a firearm during and in relation to a drug trafficking
offense. After the Supreme Court's decision in Bailey v. United
States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos.
94-7448, 94-7492), Locklear filed a 28 U.S.C.A.§ 2255 (West 1994
& Supp. 1997) motion attacking his firearm conviction. The district
court granted the motion and ordered a resentencing hearing over
Locklear's objection. On resentencing, the district court enhanced
Locklear's sentence for the drug conviction pursuant to U.S. Sentenc-
ing Guidelines Manual § 2D1.1(b)(1) (1995). On appeal, Locklear
challenges the district court's jurisdiction to resentence him and the
court's application of the sentencing enhancement. Finding no revers-
ible error, we affirm.
First, Locklear asserts that the district court improperly resentenced
him on his drug conviction following his successful collateral attack
of his firearm conviction under Bailey. We have decided this issue to
the contrary. See United States v. Smith, 115 F.3d 241 (4th Cir.), cert.
denied, ___ U.S. ___, 1997 WL 562118 (U.S. Oct. 14, 1997) (No.
97-5789); United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997).
Second, we find that the evidence was sufficient to establish a con-
nection between the firearm and Locklear's drug activities. The
enhancement under § 2D1.1(b)(1) "should be applied if the weapon
was present, unless it is clearly improbable that the weapon was con-
nected with the offense." U.S.S.G. § 2D1.1(b)(1), comment. (n.3). In
a conspiracy case the proximity condition is met when the weapon is
present in a place where the conspiracy is carried on or furthered. See
United States v. Apple, 962 F.2d 335, 338 (4th Cir. 1992). If posses-
sion is attributed to a co-conspirator, a defendant should receive the
enhancement when it is reasonably foreseeable to him that his co-
conspirators possessed dangerous weapons that are connected with
the conspiracy. See United States v. Hunter, 19 F.3d 895, 896 (4th
Cir. 1994); United States v. Nelson, 6 F.3d 1049, 1056 (4th Cir.
1993). The district court's factual determinations in this regard are
2
reviewed for clear error. See United States v. Brooks, 957 F.2d 1138,
1148-49 (4th Cir. 1992). In this instance, the possession of a firearm
during drug sales was clearly established. Furthermore, it was reason-
ably foreseeable to Locklear that his co-conspirator would regain pos-
session of the gun Locklear helped pawn. Finally, it is not necessary
under this section that Locklear ever have possession of the gun. See
Nelson, 6 F.3d at 1056.
We therefore affirm the district court's findings and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the material before the court and argu-
ment would not aid the decisional process.
AFFIRMED
3