United States v. Greene

Vacated by Supreme Court, March 7, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-4009
RANDY GREENE,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, District Judge.
(CR-03-126)
Submitted: May 26, 2004
Decided: September 24, 2004
Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Federal Public Defender, Megan J. Schueler,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, W. Chad Noel,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
2 UNITED STATES v. GREENE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Randy Greene pled guilty to possession of methamphetamine with
intent to distribute, 21 U.S.C. § 841(a) (2000), and was sentenced to
a term of seventy-eight months imprisonment. He appeals his sen-
tence, contending that the district court clearly erred in making a two-
level enhancement for possession of a weapon during the offense pur-
suant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2003).
We affirm.1
Greene sold marijuana and methamphetamine to an undercover
state trooper at the car dealership where Greene worked. After Greene
sold methamphetamine at his home to a confidential informant, a
search warrant was executed at Greene’s residence. A total of 11.838
grams of methamphetamine and 40 grams of marijuana were recov-
ered, as well as Diazepam, Clonazepam, methadone, and Oxazepam.2
Six shotguns and seven rifles were found in gun cabinets located in
the living room and bedroom.
Greene maintained that it was clearly improbable that his firearms
were connected with his drug sales because the guns were unloaded,
were in locked display cabinets, and were of the type normally used
for sporting and hunting. See USSG § 2D1.1, comment. (n.3) (adjust-
ment should be made if weapon was present "unless it is clearly
improbable that the weapon was connected with the offense;" e.g.,
1
Greene has filed a supplemental brief in which he argues that he
should be resentenced in light of Blakely v. Washington, 124 S. Ct. 2531(2004). We have recently held that Blakely does not invalidate a sentence
imposed under the federal sentencing guidelines. United States v. Ham-
moud, No. 03-4253, 2004 WL 1730309 (4th Cir. Aug. 2, 2004) (order).
Therefore, we reject his claim.
2
There was no evidence that Greene distributed the prescription drugs.
UNITED STATES v. GREENE 3
unloaded hunting rifle in closet would not warrant adjustment). He
also relied on the fact that three of the four controlled drug purchases
were made at the car dealership rather than at his home. At the sen-
tencing hearing, Greene’s attorney informed the court that his client’s
guns were family heirlooms.
The district court determined that the large number of firearms
present in Greene’s house could intimidate anyone who came there to
buy drugs and might be used to protect the drugs that Greene stored
in the house. The court held that Greene had not carried his burden
of showing that it was clearly improbable that the guns were con-
nected with the offense. Because the court found that Greene had pos-
sessed a gun in connection with the offense, Greene did not meet the
criteria set out in § 5C1.2 and was not eligible for a two-level safety
valve reduction under § 2D1.1(b)(6).
On appeal, Greene argues that the government failed to prove that
the firearms were in close proximity to the drugs in his house, that it
was clearly improbable that the firearms were connected with the
drug offense, and that the court’s error in applying the weapon
enhancement under § 2D1.1(b)(1) incorrectly precluded him from
receiving the safety valve reduction. 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. The "enhancement under Sec-
tion 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 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 pres-
ent, 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 Har-
4 UNITED STATES v. GREENE
ris, 128 F.3d at 852 (noting that "the proximity of guns to illicit nar-
cotics can support a district court’s enhancement of a defendant’s
sentence under Section 2D1.1(b)(1)").
Greene’s argument that the government failed to prove that the
firearms in his home were in close proximity to the drugs found there
is unavailing. The test requires nothing more than that the guns be
located in the same place where drugs are stored or distributed. Har-
ris, 128 F.3d at 852 (citing United States v. Nelson, 6 F.3d 1049, 1056
(4th Cir. 1993)).
Greene argues that the court committed clear error in finding that
it was not clearly improbable that the firearms were connected to the
drug offense because (1) he did not possess a firearm during the con-
trolled buys at the car dealership, and (2) the firearms were hunting
weapons and were in locked gun cabinets. However, these facts alone
do not make it clearly improbable that the firearms were connected
with Greene’s drug dealing. The guns were not kept in a closet, as in
the example given in Application Note 3, but in full sight. Greene
stored drugs in his house, and the presence of the guns, whether or
not they were loaded, could act as a deterrent to potential thieves.
Greene did not claim that he or anyone in his family used the guns
for hunting or sport. Because Greene had only a weak case to support
his "clearly improbable" theory and he possessed thirteen firearms
during a drug transaction in the place where the transaction was car-
ried out, we conclude that the district court did not clearly err in
applying the enhancement.
Given the court’s factual finding that Greene had possessed a fire-
arm in connection with the offense, the court necessarily found that
Greene did not meet the criteria for a safety valve reduction under
§ 2D1.1(b)(1) and § 5C1.2. This determination was not clearly erro-
neous. United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997)
(stating standard of review).
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED