United States v. Henriques

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4439
EWIN HENRIQUES,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4440
PHILLIP HENRIQUES,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-93-89-P)
Submitted: December 8, 1998
Decided: December 31, 1998
Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James E. Gronquist, Charlotte, North Carolina; Calvin E. Murphy,
MURPHY, CHAPMAN & MILLER, P.A., Charlotte, North Carolina,
for Appellants. Mark T. Calloway, United States Attorney, D. Scott
Broyles, Assistant United States Attorney, Charlotte, North Carolina,
for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellants, Ewin and Phillip Henriques, appeal their sentences
after resentencing for their convictions for conspiracy to possess with
intent to distribute and to distribute heroin and cocaine in violation of
21 U.S.C. §§ 841(a), 846 (1994). The Appellants pled guilty and at
re-sentencing each received a sentence of 300 months of imprison-
ment. The Appellants allege that the district court erred in applying
a two-level sentencing enhancement under U.S. Sentencing Guide-
lines Manual § 2D1.1(b)(1) (1997) for use of a dangerous weapon.
Finding no error, we affirm.
In 1997, the Appellants challenged their convictions on several
grounds in 28 U.S.C.A. § 2255 (West Supp. 1998) motions. The Gov-
ernment opposed the motions on all claims, except that the convic-
tions on the 18 U.S.C. § 924(c) counts were improper in light of
Bailey v. United States, 516 U.S. 137 (1995). The Government moved
to dismiss the convictions, but argued that the Appellants should be
resentenced pursuant to United States v. Hillary , 106 F.3d 1170 (4th
Cir. 1997). The district court dismissed the firearms convictions, but
re-opened the proceedings for an evidentiary hearing to determine
whether the § 2D1.1 enhancement should be applied. The district
court found that the enhancement should be applied and re-sentenced
each Appellant with the enhancement. The Appellants appeal from
these sentences.
This court reviews a district court's finding that a defendant pos-
sessed a dangerous weapon under USSG § 2D1.1(b)(1) for clear error.
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See United States v. Apple, 915 F.2d 899, 914 (4th Cir. 1990). We
review factual findings related to Sentencing Guidelines for clear
error. See United States v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994).
The 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.3). In order to avoid appli-
cation of the adjustment, the defendant must show that the connection
between the drug offense and the dangerous weapon possession was
clearly improbable. See United States v. Harris , 128 F.3d 850, 852-53
(4th Cir. 1997). The proximity of drugs to the dangerous weapon is
sufficient to warrant the adjustment. Id. at 852.
The Appellants and Geoffrey Cousins were named in the same
indictment for involvement in a cocaine and heroin distribution con-
spiracy. Cousins moved into Ewin Henriques' house on Clyde Drive
in Charlotte, North Carolina for the purpose of packaging heroin for
distribution. The Presentence Report (PSR) indicated that a 20-gauge
and a 12-gauge shotgun were kept at the house to protect the money
and drugs there. The report also stated that, in August 1992, a Char-
lotte drug gang known as "The Posse" raided the house on Clyde
Drive. Cousins was shot and seriously wounded during the raid and
soon after cooperated with police.
At the sentencing hearing there was sufficient evidence to find that
the enhancement was applicable. The Government called the investi-
gating case agent, Senior Special Agent Edward Brigham of the U.S.
Immigration and Naturalization Service, to testify regarding the fire-
arms involved in the offenses. Agent Brigham testified that in their
individual interviews with him, each member of the Posse involved
in the house raid admitted that they took from the stash house "nu-
merous firearms, variously described as a .38 caliber pistol, a .357
caliber Magnum pistol, a 12-gauge and a 20-gauge shotgun." (J.A. 47,
48). Agent Brigham also testified that the 12-gauge shotgun was a
weapon that could be construed as a rifle, due to its construction. He
testified that Cousins stated that a rifle and a shotgun were kept at the
stash house, and that Ewin Henriques kept them for the purpose of
protecting heroin and heroin sale proceeds. Finally, Brigham testified
that task force members recovered a 12-gauge and 20-gauge shotgun
from the Posse during their investigation of the gang, and that Posse
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members identified those firearms as the ones taken from the stash
house.
Agent Brigham also testified that both Ewin and Phillip Henriques
maintained the stash house and oversaw the distribution organization.
Brigham also testified that another participant in the conspiracy,
Anthony White, told him that Ewin Henriques personally gave White
a .32 caliber pistol for protection of himself and the drugs during the
sale of cocaine.*
We therefore find that the district court did not clearly err in apply-
ing the enhancement. See Jones, 31 F.3d at 1315. 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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*The Government also relies upon testimony by Brigham regarding an
incident related to him by Cousins. Cousins stated that after he agreed to
cooperate with law enforcement, the Appellants ran him off the road,
exited from their vehicles, and pulled weapons from their belts. Because
the other evidence of firearms related to the offenses is strong, we do not
rely upon this incident in determining that the district court did not err
in applying the enhancement.
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