United States v. Barrett ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5261
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIE BARRETT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-04-87)
Submitted: April 11, 2007 Decided: May 21, 2007
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William Woodward Webb, THE EDMISTEN & WEBB LAW FIRM, Raleigh, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Barrett pled guilty, pursuant to a plea agreement,
to one count of distribution of more than fifty grams of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1), (b) (2000). The
presentence report recommended a base offense level of thirty-two
pursuant to U.S. Sentencing Guidelines Manual (USSG) § 2D1.1(c)(4)
(2004), an enhancement of two levels pursuant to USSG § 2D1.1(b)(1)
because Barrett possessed a firearm, and a three-level reduction
for acceptance of responsibility. Barrett’s total offense level of
thirty-one and his criminal history Category IV resulted in a
sentencing range of 151 to 188 months. Barrett objected to the
two-level enhancement for possession of a firearm on the ground
that the evidence did not show any connection between his drug
dealing activities and the possession of the firearms. The
district court overruled Barrett’s objection and sentenced him to
151 months of imprisonment, and Barrett timely appealed. On
appeal, Barrett asserts that the improper two-level enhancement of
his offense level for possession of a firearm amounts to an upward
departure and renders his sentence unreasonable. We affirm.
The Guidelines provide for a two-level increase in a
defendant’s base offense level “[i]f a dangerous weapon (including
a firearm) was possessed.” USSG § 2D1.1(b)(1). “The adjustment
should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” USSG
- 2 -
§ 2D1.1(b)(1), cmt. n.3. “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.” United
States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). The
district court’s determination that a firearm or other weapon was
present and justifies the enhancement is a factual question that is
reviewed for clear error. United States v. Apple, 915 F.2d 899,
914 (4th Cir. 1990). Our review of the record leads us to conclude
that the district court did not err in imposing the enhancement.
See United States v. Falesbork, 5 F.3d 715, 719-20 (4th Cir. 1993)
(“[A] district judge must look to the entire course of relevant
criminal conduct, not merely the narrow offense of conviction, in
deciding whether to apply a § 2D1.1(b)(1) enhancement.”). Because
the district court correctly enhanced Barrett’s offense level under
§ 2D1.1(b)(1), and sentenced Barrett within the Guideline range,
his argument that the sentence resulted from an upward departure is
also without merit. See United States v. Johnson, 445 F.3d 339,
341 (4th Cir. 2006).
Accordingly, we affirm Barrett’s sentence. We dispense
with oral argument because the facts and legal conclusions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
- 3 -