United States v. Linzie Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4194
LINZIE HOLDER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-98-170)
Submitted: August 17, 1999
Decided: October 18, 1999
Before MURNAGHAN, ERVIN,* and HAMILTON,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
David Michael Gammino, Maureen L. White, Richmond, Virginia,
for Appellant. Helen F. Fahey, United States Attorney, S. David
Schiller, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
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*Judge Ervin was assigned to the panel in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Pursuant to his guilty pleas, Linzie Holder was convicted of one
count each of possession with intent to distribute heroin (21 U.S.C.
§ 841 (1994)) and possession of a firearm by a drug user (18 U.S.C.A.
§ 922(g)(3) (West Supp. 1999)). On appeal, Holder alleges that the
district court erred by enhancing his base offense level by four levels
under USSG § 2K2.1(b)(5).1 Finding no reversible error, we affirm.
While on routine patrol, two Richmond, Virginia, police officers
observed Holder and another male engaged in what they suspected
was a drug transaction. The two men began to walk away when they
saw the police officers, and Holder threw five small plastic bags over
a hedge. The bags were recovered and later found to contain heroin.
After being apprehended, Holder was escorted next door, where he
lived with his parents.2
Holder's mother consented to a search of Holder's bedroom. There,
police discovered a loaded .357 caliber handgun between the mat-
tresses of Holder's bed. In addition, Holder's father and girlfriend
admitted to police that he (Holder's father) had removed drugs from
Holder's dresser and hid them beside a shed in the backyard while the
officers talked to Holder in front of the house. 3 Holder admitted that
he smoked marijuana in his room and that he sold, but did not use,
heroin. However, he denied ever selling drugs in the home.
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1 U.S. Sentencing Guhdelines Manual (1998). This section allows the
district court to increase a defendant's base offense level if the defendant
possessed a firearm in connection with another felony offense.
2 The suspected drug transaction occurred approximately two houses
from Holder's home.
3 Police later discovered a bag containing marijuana and heroin beside
the shed.
2
Holder objected to the enhancement at sentencing, arguing that
there was no evidence that he possessed the weapon"in connection
with" his drug dealing. Specifically, Holder alleged that he did not
sell drugs from his room or carry the firearm with him when he sold
drugs outside the home. Holder also presented the testimony of his
ten-year-old sister, who stated that she found the weapon in a neigh-
bor's yard the day before Holder's arrest and gave it to him. The dis-
trict court found the sister's testimony credible, but nevertheless
denied the objection.
Because this case raises a mixed question of law and fact regarding
the application of the Sentencing Guidelines, we review the district
court's decision with due deference. See United States v. Bostic, 168
F.3d 718, 724 (4th Cir.), cert. denied, 119 S. Ct. 2383 (1999).
Although the Guidelines do not define the phrase"in connection
with," as used in USSG § 2K2.1(b)(5), we have adopted the view that
the phrase is best interpreted by analogy to the definition of the phrase
"in relation to" used in 18 U.S.C.A. § 924(c) (West Supp. 1999). See
United States v. Nale, 101 F.3d 1000, 1003-04 (4th Cir. 1996). Thus,
to show that the firearm was possessed "in connection with" another
felony offense, the Government was required to prove by a prepon-
derance of the evidence that Holder possessed the weapon and that it
facilitated, or had the potential to facilitate, the other offense. See id.In the present case, the district court properly found that Holder
possessed the weapon, and this factor is not in dispute. Likewise,
there is no suggestion in the record that the firearm facilitated any of
Holder's past drug activities.4 Therefore, the issue focuses on whether
the district court correctly concluded that the firearm had the potential
to facilitate future drug activities.
We find that the district court properly applied the enhancement.
First, Holder kept the firearm in the same room as his drugs, and this
proximity may be sufficient to establish the required nexus between
the weapon and drug offenses.5 Second, the weapon was fully loaded
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4 The district court properly identified Holder's admitted possession of
marijuana and possession of heroin with the intent to distribute as the
required felony offenses for purposes of the enhancement.
5 See United States v. Gomez-Arrellano, 5 F.3d 464, 466-67 (10th Cir.
1993). We note that unlike the district court in Gomez, the court here
3
at the time of its discovery. The district court correctly noted that the
only purpose for having a loaded weapon near drugs is to have it
available for future use if necessary. Finally, Holder had ample oppor-
tunity to inform his parents or the police of his sister's discovery, but
he chose not to do so. Instead, he decided to keep the weapon, and
the district court properly found that this created a strong inference
that Holder intended to keep it for use in his drug activities should he
ever need it.
Accordingly, we affirm Holder's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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made the factual finding that the weapon and drugs were in close prox-
imity and that that proximity created the potential that the weapon could
facilitate the drug offenses. While Holder alleges that this factor alone is
insufficient to support the enhancement, we need not decide this issue
because we find that the district court properly considered this factor in
conjunction with the other facts of this case.
4