United States v. Fonville ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4872
CALVIN FONVILLE, a/k/a Cal,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-95-49)
Submitted: May 26, 1998
Decided: June 19, 1998
Before MICHAEL and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jon M. Babineau, DOYLE & BABINEAU, P.L.L.C., Norfolk, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, Kevin
M. Comstock, Assistant United States Attorney, Norfolk, Virginia,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Calvin Fonville was convicted following a jury trial of conspiracy
to distribute and to possess with the intent to distribute crack cocaine
in violation of 21 U.S.C. §§ 841(a)(1), 846 (1994), distribution and
possession with intent to distribute crack cocaine in violation of 21
U.S.C. § 841(a)(1), using or carrying a firearm during and in relation
to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)
(1994) (current version at 18 U.S.C.A. § 924(c)(1) (West Supp.
1998)), and possession of firearms and ammunition by a convicted
felon in violation of 18 U.S.C. § 922(g)(1) (1994). On appeal, Fon-
ville contended, inter alia, that in light of Bailey v. United States, 516
U.S. 137 (1995), the evidence was insufficient to support his § 924(c)
conviction. We vacated Fonville's § 924(c) conviction and sentence
and remanded the case for a determination whether an enhancement
was appropriate under U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (1995). See United States v. Fonville, No. 95-5798(L)
(4th Cir. May 30, 1997) (unpublished). The district court resentenced
Fonville, enhancing his conspiracy conviction under USSG
§ 2D1.1(b)(1) for possession of a firearm. On appeal, Fonville chal-
lenges the district court's application of the sentencing enhancement.
Finding no error, we affirm.
Fonville contends that the evidence was insufficient to prove
actual, constructive, or joint possession of a firearm while engaged in,
or in furtherance of, the conspiracy. He also contends that because he
was acquitted of two other firearms offenses and because this Court
vacated his § 924(c) conviction, there was no other evidence to sup-
port the enhancement.
We review the district court's factual finding regarding possession
of a dangerous weapon during the commission of a narcotics offense
for clear error. See United States v. Kimberlin , 18 F.3d 1156, 1160
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(4th Cir. 1994). The commentary to USSG § 2D1.1(b)(1) directs that
the enhancement for weapon possession by drug traffickers "should
be applied if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense." USSG
§ 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 con-
spiracy is carried on or furthered. See United States v. Apple, 962 F.2d
335, 338 (4th Cir. 1992). A firearms enhancement is permissible if
possession of the firearm by a co-conspirator was reasonably foresee-
able to the defendant. See Kimberlin, 18 F.3d at 1160. An enhance-
ment under § 2D1.1(b)(1) may be applicable even if the defendant
was acquitted of a § 924(c) offense, or if the§ 924(c) offense was
vacated. See United States v. Nelson, 6 F.3d 1049, 1057 (4th Cir.
1993); see also United States v. Smith, 94 F.3d 122, 125 (4th Cir.
1996).
The trial transcript reveals that Fonville was a member of a drug
organization that operated out of various residences and motel rooms
and shared access to a weapons cache. Law enforcement officials
conducted a search of a house from which the organization was oper-
ating, and discovered five firearms, 2.1 grams of crack cocaine, and
drug paraphernalia. Fonville went to the residence often and was at
the residence when the search was conducted. The firearms were kept
at the residence for protection, and Fonville had access to the fire-
arms. Further, Fonville was observed by one witness trading a firearm
for drugs. We find that the district court's application of
§ 2D1.1(b)(1) was not clearly erroneous.
Accordingly, we affirm Fonville's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the Court and argument would not aid
in the decisional process.
AFFIRMED
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