United States v. Mobley ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4902
ERIC EUGENE MOBLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge.
(CR-94-92-V)
Submitted: June 23, 1998
Decided: July 20, 1998
Before HAMILTON and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jesse J. Waldon, Jr., Matthews, North Carolina, for Appellant. Mark
T. Calloway, United States Attorney, Gretchen C.F. Shappert, Assis-
tant United States Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Eric Eugene Mobley pleaded guilty, pursuant to a written plea
agreement, to conspiracy to possess with intent to distribute and dis-
tribution of cocaine base, in violation of 21 U.S.C.§§ 841(A)(1), 846
(1994), and using and carrying a firearm during and in relation to a
drug trafficking offense, in violation 18 U.S.C.§ 924(c)(1) (1994)
(current version at 18 U.S.C.A. § 924(c)(1) (West Supp. 1988)). On
appeal, Mobley contended, inter alia, that in light of Bailey v. United
States, 516 U.S. 137 (1995), his § 924(c) conviction should be
vacated. We vacated Mobley'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. Mobley, No. 95-5569 (4th Cir. Aug. 19,
1997) (unpublished). The district court resentenced Mobley, enhanc-
ing his conspiracy conviction under USSG § 2D1.1(b)(1) for posses-
sion of a firearm. On appeal, Mobley challenges the district court's
application of the sentencing enhancement. Finding no error, we
affirm.
Mobley contends that the evidence was insufficient to prove that
the firearms were connected to the drug activities. He also contends
that, because the Government failed to specifically seek the enhance-
ment at resentencing, the district court was precluded from awarding
the enhancement. Mobley asserts that the district court erred in
accepting the probation officer's recommendation in the revised Pre-
sentence Report, which was unsupported by any new proffer of evi-
dence by the Government.
We review the district court's factual finding regarding possession
of a dangerous weapon during the commission of a drug offense for
clear error. See United States v. Kimberlin, 18 F.3d 1156, 1160 (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 conspiracy is carried
on or furthered. See United States v. Apple, 962 F.2d 335, 338 (4th
2
Cir. 1992). An enhancement 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 government has the burden of proving by a preponderance of
the evidence the sentencing factors for which the defendant should be
held accountable. See United States v. Estrada , 42 F.3d 228, 231 (4th
Cir. 1994). In resolving a factual dispute regarding a sentencing deter-
mination, the court may rely upon any relevant information without
regard to its admissibility under the rules of evidence provided that
the information has sufficient indicia of reliability to support its prob-
able accuracy. See USSG § 6A1.3(a), p.s. The government may rely
upon information found in the PSR unless the defendant affirmatively
shows that the information found there is inaccurate or unreliable. See
United States v. Gilliam, 987 F.2d 1009, 1014 (4th Cir. 1993). A
"mere objection" to the PSR's contents "is not sufficient" to challenge
the accuracy of a PSR. See United States v. Terry, 916 F.2d 157, 162
(4th Cir. 1990). In the absence of such a showing, the sentencing
court is free to adopt the PSR's findings.
At the sentencing hearing, the Government, relying on the facts as
reported in the original PSR, which were restated verbatim in the
revised PSR, asserted that the enhancement was proper. At the origi-
nal sentencing hearing, Mobley stipulated to the offense conduct sec-
tion of the PSR as the factual basis for his plea. The uncontested facts
revealed that Mobley would supply crack to his co-defendant, who in
turn made a number of sales to an undercover agent. Mobley stored
the drugs he provided to his co-defendant in his apartment. On May
4, 1994, Mobley was arrested while retrieving crack from his apart-
ment for a sale to the undercover agent. His apartment was searched
by federal agents, who found 223 grams of crack, nearly $9000 in
cash, seven firearms, and drug paraphernalia. We find that the district
court's application of § 2D1.1(b)(1) was not clearly erroneous.
Accordingly, we affirm Mobley'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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