United States v. David Poindexter ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4055
DAVID JAMES POINDEXTER, JR., a/k/a
Frank, a/k/a Malik, a/k/a Derrick
Carter,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-98-137)
Submitted: June 17, 1999
Decided: June 25, 1999
Before MURNAGHAN and TRAXLER, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Hunt L. Charach, Federal Public Defender, Edward H. Weis, First
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Rebecca A. Betts, United States Attorney, Monica K.
Schwartz, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
David James Poindexter, Jr., pled guilty to possession of crack
cocaine with intent to distribute, see 21 U.S.C. § 841(a) (1994), and
received a sentence of 100 months imprisonment. His attorney has
filed a brief in accordance with Anders v. California, 386 U.S. 738(1967), raising two issues but stating that in his view there are no
meritorious issues for appeal. Poindexter has filed a pro se supple-
mental brief in which he offers further argument on the same issues
raised by his attorney. After a review of the record, we affirm.
Poindexter made two controlled sales of crack to a confidential
informant, after which his home was searched under a warrant. State
drug agents found crack in the living room. In the bedroom, they
found more crack in the pocket of Poindexter's jacket, a loaded .38
caliber firearm under the bed, a box of ammunition, and a set of
scales. Poindexter made no objection to the presentence report, which
recommended a two-level enhancement for possession of a dangerous
weapon, see U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)
(1998), and the district court duly included the enhancement in the
calculation of the guideline range. The enhancement is required if a
weapon is present during the offense "unless it is clearly improbable
that the weapon was connected to the offense." USSG § 2D1.1, com-
ment. (n.3).
In the Anders brief, Poindexter's attorney first suggests that the
enhancement was plain error because the government failed to offer
proof that it was not clearly improbable that the firearm was con-
nected to the drug offense and, second, suggests that the district court
may have committed plain error in not stating its reasons for making
the enhancement. However, we have previously held that proximity
of firearms to illegal drugs is sufficient to trigger the enhancement.
See United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997). Con-
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sequently, the district court did not plainly err in making the enhance-
ment. Because Poindexter made no objection to the presentence
report, no specific findings were required. See United States v. Terry,
916 F.2d 157, 162 (4th Cir. 1990). We have considered the additional
argument on these issues in Poindexter's supplemental brief and find
it unpersuasive.
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm the convic-
tion and sentence. This court requires that counsel inform his client,
in writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from represen-
tation. Counsel's motion must state that a copy thereof was served on
the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the record and briefs, and oral argu-
ment would not aid the decisional process.
AFFIRMED
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