United States v. Foster , 406 F. App'x 690 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4046
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN LEE FOSTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00087-FL-1)
Submitted: December 7, 2010 Decided: December 28, 2010
Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Eric D. Goulian, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Brian Lee Foster of
conspiracy to possess with intent to distribute and distribute
cocaine, in violation of 21 U.S.C. § 846 (2006). The district
court sentenced Foster to 324 months of imprisonment and he now
appeals. Finding no error, we affirm.
Foster first challenges the district court’s denial of
his motion to dismiss the indictment as unconstitutionally
vague. However, Foster failed to file objections to the
magistrate judge’s report after receiving proper notice of the
requirement to file objections, and has therefore waived
appellate review of this issue. See Wright v. Collins, 766 F.2d
841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S.
140 (1985); Fed. R. Crim. P. 59(a).
Moreover, Foster’s claim fails on the merits. We
review the denial of a motion to dismiss an indictment de novo.
United States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997).
Fed. R. Crim. P. 7(c)(1) requires an indictment to be a “plain,
concise, and definite written statement of the essential facts
constituting the offense charged.” “In order to be legally
sufficient, an indictment must contain the elements of the
offense charged, fairly inform a defendant of the charge, and
enable the defendant to plead double jeopardy as a defense in a
future prosecution for the same offense.” Id. (internal
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quotation marks and citation omitted). An indictment is
generally sufficient if it alleges an offense “in the words of
the statute.” United States v. Wicks, 187 F.3d 426, 427 (4th
Cir. 1999) (citing Hamling v. United States, 418 U.S. 87, 117
(1974)). Here, the subject indictment tracked the statutory
language, cited the charging statute, and listed the elements of
the charge. We therefore find that the indictment was
sufficient.
Foster next argues that the district court abused its
discretion in denying his motion to transfer venue. This court
reviews a district court’s denial of a motion to transfer venue
for abuse of discretion. See United States v. Heaps, 39 F.3d
479, 482 (4th Cir. 1994), abrogated on other grounds, United
States v. Cabrales, 524 U.S. 1 (1998). Fed. R. Crim. P. 21(b)
provides that the court may transfer a proceeding, upon the
defendant’s motion, to another district “for the convenience of
the parties and witnesses and in the interests of justice.”
In deciding such a motion, the district court should
consider the (a) location of the defendant; (b) location of the
possible witnesses; (c) location of the events likely to be at
issue; (d) location of relevant documents and records;
(e) potential for disruption of the defendant’s businesses if
transfer is denied; (f) expenses to be incurred by the parties
if transfer is denied; (g) location of defense counsel;
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(h) relative accessibility of the place of trial; and (i) docket
conditions of each potential district. Platt v. Minn. Mining &
Mfg. Co., 376 U.S. 240, 243-44 (1964). No one of these
considerations is dispositive, and “[i]t remains for the court
to try to strike a balance and determine which factors are of
greatest importance.” United States v. Stephenson, 895 F.2d
867, 875 (2d Cir. 1990). We have thoroughly reviewed the record
and conclude that the court did not abuse its discretion in
denying Foster’s motion to transfer venue.
Finally, Foster challenges the district court’s
application of an enhancement under the sentencing guidelines
for possession of a firearm. Whether the district court
properly applied an enhancement under the guidelines is reviewed
for clear error. United States v. McAllister, 272 F.3d 228, 234
(4th Cir. 2001). We will “find clear error only if, on the
entire evidence, [we are] left with the definite and firm
conviction that a mistake has been committed.” United States v.
Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation
marks and citation omitted).
Under the guidelines, a district court must increase a
defendant’s offense level by two levels if the defendant
possessed a dangerous weapon, including a firearm. U.S.
Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1) (2009). The
enhancement is proper when “the weapon was possessed in
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connection with drug activity that was part of the same course
of conduct or common scheme as the offense of conviction.”
Manigan, 592 F.3d at 628-29 (internal quotation marks omitted).
Moreover, “[t]he adjustment should be applied if the weapon was
present, unless it is clearly improbable that the weapon was
connected with the offense.” McAllister, 272 F.3d at 234
(citing USSG § 2D1.1(b)(1) cmt. n.3).
“In assessing whether a defendant possessed a firearm
in connection with relevant drug activity, a sentencing court is
entitled to consider . . . the type of firearm involved.”
Manigan, 592 F.3d at 629 (citation omitted). In addition, the
court should consider “the location or proximity of a seized
firearm” in determining whether it was possessed in connection
with drug activity. Id. The government bears the burden of
demonstrating that the enhancement applies by a preponderance of
the evidence. Id. at 630-31. “[T]he burden of showing
something by a preponderance of the evidence . . . simply
requires the trier of fact to believe that the existence of a
fact is more probable than its nonexistence.” Id. at 631(internal quotation marks and citation omitted).
We have reviewed the record and conclude that the
district court did not commit clear error in finding it was not
clearly improbable that the weapon was connected with the
offense. Accordingly, we affirm the judgment of the district
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court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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