United States v. McFadden

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4575
JOE MCFADDEN, a/k/a Bo,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-95-787)
Submitted: January 23, 1997
Decided: February 5, 1997
Before RUSSELL, WILKINS, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William F. Nettles, IV, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Scarlett A. Wilson, Assistant United States Attorney, Christopher
Seybolt, Staff Attorney, Columbia, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Joe McFadden pled guilty to possession of crack cocaine with
intent to distribute, 21 U.S.C. § 841 (1994), and received a sentence
of 78 months imprisonment. He appeals this sentence, arguing that the
district court clearly erred in enhancing his sentence for possession of
a firearm during the offense. USSG § 2D1.1(b)(1).* We affirm.
McFadden and his associates were the subject of an investigation
which continued for several months. On the day of his arrest, McFad-
den met an informant and the agents at an auto repair shop and dis-
cussed a sale of three ounces of crack and three ounces of powder
cocaine to the agents. Two of McFadden's friends drove up and
McFadden talked with them; they then drove off to get the drugs.
When they returned, McFadden took the drugs and walked with the
informant toward a back room to weigh the drugs. At that point, the
arrests were made. A loaded semi-automatic pistol was found on the
front seat of McFadden's truck.
A two-level enhancement is applicable if the government shows
that a firearm was present during the offense, unless the court finds
that it was clearly improbable that the firearm was connected with the
offense. USSG § 2D1.1, comment. (n.3). We review the district
court's factual finding for clear error. United States v. Apple, 915 F.2d
899, 914 (4th Cir. 1990). McFadden argued at sentencing that he used
the gun only for shooting snakes when he went fishing. He said he
usually kept it behind the seat, but had removed it that day while
working on his truck and forgotten to put it back. He argued that the
drug deal took place inside the garage, where the gun was not accessi-
ble to him. However, because the evidence showed that McFadden
and the others were outside in the parking area as well as in the build-
ing during the transaction, and because the gun was not behind the
seat, the district court found that it was not clearly improbable that the
firearm was connected with the drug offense. The court's finding was
not clearly erroneous.
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*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
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The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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