UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4136
NATHANIEL SULUKI,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-99-109)
Submitted: August 24, 2001
Decided: November 5, 2001
Before WILKINS and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Patrick R. Hanes, WILLIAMS, MULLEN, CLARK & DOBBINS,
P.C., Richmond, Virginia, for Appellant. Kenneth E. Melson, United
States Attorney, James B. Comey, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
2 UNITED STATES v. SULUKI
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Nathaniel Suluki appeals his sentence imposed at resentencing. He
was convicted of possession with intent to distribute heroin, posses-
sion of heroin, possession with intent to distribute crack cocaine and
possession of crack cocaine and was sentenced to 120 months impris-
onment. He appealed, and we vacated the simple possession counts
as violative of the Double Jeopardy Clause, affirmed the possession
with intent to distribute counts, and remanded for resentencing.
At resentencing, Suluki challenged the enhancement of his sen-
tence for possession of a firearm under U.S. Sentencing Guidelines
Manual § 2D1.1(b)(1) (1998). The district court found that the
enhancement was still properly applicable and, in any event, was not
within the scope of this court’s mandate. The district court then reim-
posed a 120-month sentence.
On appeal, Suluki’s counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), challenging the firearm
enhancement on various grounds. In addition, Suluki has submitted a
motion to file a pro se supplemental brief, rearguing certain issues
raised by his attorney and raising several new ones. We grant Suluki’s
motion.
Even assuming, as Suluki argues, that the scope of the resentencing
permitted consideration of the propriety of the firearm enhancement,
we find that the district court did not clearly err in applying the
enhancement. Suluki was arrested after opening the front door of his
home to police. Officers searched Suluki and found cocaine base
packaged for sale and heroin. A search of Suluki’s home produced a
shotgun and ammunition in the back bedroom, two revolvers in a shed
behind Suluki’s home, two pagers, a scale, and a large amount of
money. Suluki claims that the firearms enhancement was not war-
UNITED STATES v. SULUKI 3
ranted because there was no evidence that Suluki used or possessed
the guns, and even if he did, there was no evidence linking the fire-
arms to drug activity.
However, the shotgun was found in Suluki’s home and the revolv-
ers on Suluki’s property. Moreover, the Government was not required
to link the weapons directly with the drugs. United States v. Harris,
128 F.3d 850, 852 (4th Cir. 1997); USSG § 2D1.1, comment. (n.3)
(enhancement should be made if a firearm is present, unless it is
clearly improbable that the firearm is connected to the offense).
Because Suluki cannot show that it was clearly improbable that the
firearms were connected to the drug offense, the enhancement was
not clearly erroneous. United States v. Apple, 962 F.2d 335, 338 (4th
Cir. 1992) (possession of weapon in place where conspiracy is carried
on is sufficient).
Suluki next argues that his firearm enhancement violated the dic-
tates of Apprendi v. New Jersey, 530 U.S. 466 (2000), because the
enhancement was neither charged in his indictment nor proven
beyond a reasonable doubt and his resultant sentence exceeded the
maximum guideline sentence permissible without the enhancement.
In United States v. Kinter, 235 F.3d 192, 201-02 (4th Cir. 2000), cert.
denied, ___ U.S. ___, 69 U.S.L.W. 3618 (U.S. March 19, 2001) (No.
00-8591), we held that the Government is not required under
Apprendi to submit to a jury and prove beyond a reasonable doubt
facts underlying sentence enhancements that increase the guideline
range but do not increase the statutory maximum sentence. Because
Suluki was sentenced below the statutory maximum for the underly-
ing crime, Kinter forecloses Suluki’s argument. While Suluki urges
this court to reconsider its holding in Kinter, a panel may not overrule
the decision of a prior panel. Brubaker v. City of Richmond, 943 F.2d
1363, 1381-82 (4th Cir. 1991).
In his pro se brief, Suluki raises numerous challenges to his under-
lying conviction, challenging inter alia the mooting of his motion to
suppress and the jury instructions. Suluki did not raise these claims
in his initial appeal, and we affirmed his possession with intent to dis-
tribute convictions. Thus, these issues have been waived and are not
properly considered in this appeal from Suluki’s resentencing.
4 UNITED STATES v. SULUKI
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm Suluki’s
sentence. This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument, because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED