United States v. Lee

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4055
JOHN WESLEY LEE, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CR-91-173)
Submitted: August 29, 1997
Decided: September 26, 1997
Before HALL, NIEMEYER, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Augustus S. Hydrick, Jr., Richmond, Virginia, for Appellant. Helen
F. Fahey, United States Attorney, James B. Comey, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In 1992, John Wesley Lee, Jr., pled guilty to possession of cocaine
base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)
(1994), and to using or carrying a firearm during a drug trafficking
offense, in violation of 18 U.S.C.A. § 924(c) (West Supp. 1997). He
was sentenced to seventy-eight months imprisonment on the drug
charge and a consecutive sixty month sentence on the firearms
offense, to be followed by three years of supervised release.
Following the Supreme Court's decision in Bailey v. United States,
___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448,
94-7492), Lee filed a motion under 28 U.S.C.A. § 2255 (West 1994
& Supp. 1997), requesting that the gun conviction be vacated. The
government consented, on the ground that the facts did not support a
§ 924(c) conviction under Bailey. The district court granted the
motion to vacate the sentence imposed on the § 924(c) conviction,
and ordered that Lee be brought before the court for resentencing. The
district court held that U.S. Sentencing Commission, Guidelines
Manual, § 2D1.1(b)(1) (Nov. 1996), applied, and enhanced the
offense level by two levels. Lee was resentenced to ninety-seven
months on the drug trafficking count, followed by three years super-
vised release. He appeals his resentencing, and we affirm.
Lee was arrested after selling cocaine base to a confidential infor-
mant at Lee's apartment. A search of the apartment revealed one
ounce of crack cocaine and over $6000 in cash. A loaded handgun
was found on an upper shelf of the closet in Lee's bedroom, where
it could easily be reached. Another weapon was found unloaded in
another bedroom between the mattress and box springs. Ammunition
for the weapon was found in that bedroom, as well.
Section 2D1.1(b)(1) provides that, in sentencing for certain drug
crimes, the base offense level should be increased two levels if the
defendant possessed a dangerous weapon. Lee argues that the
enhancement should not have been applied to him on resentencing.
He claims that the weapons were not closely related to the drug
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offense, and relies on USSG § 2D1.1, comment. (n.3) to support his
position:
The enhancement for weapon possession reflects the
increased danger of violence when drug traffickers possess
weapons. The adjustment should be applied if the weapon
was present, unless it is clearly improbable that the weapon
was connected with the offense. For example, the enhance-
ment would not be applied if the defendant, arrested at his
residence, had an unloaded hunting rifle in the closet.
This court has held that the government can seek resentencing for
application of the § 2D1.1(b)(1) enhancement when a § 924(c) con-
viction has been vacated pursuant to a § 2255 motion. United States
v. Hillary, 106 F.3d 1170 (4th Cir. 1997). We review the district
court's factual findings at sentencing for clear error. United States v.
Melton, 970 F.2d 1328, 1332-33 (4th Cir. 1992). Lee's argument that
the weapons were not related to the drug trafficking offense is not
supported by the record. The loaded .380 handgun in Lee's bedroom
was in the same room and within easy reach of drugs, cash, and drug
paraphernalia. During the guilty plea colloquy, the district court asked
Lee, "did you have [the guns] there with you?" and Lee responded,
"Yes, sir." In his interview with the probation officer, Lee admitted
that he was selling cocaine to "get by" and he had the firearms for
"protection." Thus, the adjustment was properly applied.
Therefore, we conclude that the district court was not clearly erro-
neous in finding that at least one of the weapons was present and con-
nected with the offense. We affirm the judgment of the district court
on resentencing. 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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