United States v. Joseph Foust

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4374
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH KYLE FOUST,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:14-cr-00277-TDS-1)
Submitted: January 15, 2016 Decided: January 21, 2016
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Duberstein,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Terry M.
Meinecke, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Kyle Foust appeals from his 120-month sentence
entered pursuant to his guilty plea to possession with intent to
distribute methamphetamine. On appeal, he challenges his
Sentencing Guidelines range enhancement for possession of a
dangerous weapon, under U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2014). We affirm.
Section 2D1.1(b)(1) provides for a two-level enhancement
“[i]f a dangerous weapon (including a firearm) was possessed” in
connection with the drug offense. USSG § 2D1.1(b)(1). The
commentary to § 2D1.1 explains that the weapons enhancement
should be applied “if the weapon was present, unless it is
clearly improbable that the weapon was connected with the
offense.” USSG § 2D1.1, comment. (n.11(A)). The district
court’s decision to apply the enhancement is reviewed for clear
error. United States v. Harris, 128 F.3d 850, 852 (4th Cir.
1997).
The Government need not establish a perfect connection
between the possession of the firearm and the commission of the
drug offense before the enhancement may be made. That is
because “enhancement under Section 2D1.1(b)(1) does not require
proof of precisely concurrent acts, for example, gun in hand
while in the act of storing drugs, drugs in hand while in the
act of retrieving a gun.” Harris, 128 F.3d at 852 (alteration
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and internal quotation marks omitted). Instead, “possession of
the weapon during the commission of the offense is all that is
needed to invoke the enhancement.” United States v. Apple, 962
F.2d 335, 338 (4th Cir. 1992); accord United States v.
McAllister, 272 F.3d 228, 234 (4th Cir. 2001) (“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.”). Evidence of firearms in proximity to illegal drugs
can support a conclusion that the firearms were possessed during
the commission of the drug offense. See Harris, 128 F.3d at 852(noting that “the proximity of guns to illicit narcotics can
support a district court's enhancement of a defendant's sentence
under Section 2D1.1(b)(1)”). The defendant has the burden of
showing that a connection between his possession of a firearm
and his drug offense is “clearly improbable.” United States v.
Slade, 631 F.3d 185, 189 (4th Cir. 2011).
While Foust raises several arguments as to why the
enhancement was improper, we find that these arguments are
either unsupported or would not make it clearly improbable that
the firearm was connected with Foust’s drug dealing. Foust was
found in a locked bedroom, in possession of a gun, ammunition,
drug paraphernalia, and methamphetamine. He did not produce any
evidence that he was unaware of the presence of the gun or that
it was used for hunting or sport. Because Foust had only a weak
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case to support his “clearly improbable” theory and he possessed
a firearm in close proximity to drugs and drug paraphernalia,
the district court did not clearly err in applying the
enhancement.
Accordingly, we affirm Foust’s sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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