UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4197
BERNARD WEYMOUTH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-01-10)
Submitted: August 29, 2002
Decided: September 16, 2002
Before WILKINS, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert E. Barrat, Martinsburg, West Virginia, for Appellant. Thomas
E. Johnston, United States Attorney, Thomas O. Mucklow, Assistant
United States Attorney, Erin K. Burgoyne, Third-Year Law Student,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WEYMOUTH
OPINION
PER CURIAM:
Bernard Weymouth appeals his conviction and sentence for posses-
sion with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a) (2000), and sixty-one month sentence. We affirm Wey-
mouth’s conviction and sentence.
Weymouth asserts that the district court erred in reversing, on the
day of trial, its prior grant of his motion in limine. He challenges the
reversal as both improper and prejudicial. This court generally
reviews the admission of evidence for an abuse of discretion. United
States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988). It is clear from
the record that Weymouth was not prejudiced by the court’s amend-
ment of its earlier decision. This is particularly true where the pres-
ence of Weymouth’s fingerprint on paper found wrapped around
some of the drugs tied Weymouth to the cocaine. Accordingly, we
find no abuse of discretion. To the extent the timing of the court’s
decision could be considered error, any such error was harmless. See
Fed. R. Crim. P. 52(b); United States v. Brooks, 111 F.3d 365, 371
(4th Cir. 1997); United States v. Ince, 21 F.3d 576, 583 (4th Cir.
1994).
Weymouth asserts that he was prejudiced by the district court’s
denial of his motion for a mistrial when the jury reported it could not
reach a consensus. The court denied the motion for mistrial and had
a written Allen charge delivered to the jury. See Allen v. United
States, 164 U.S. 492 (1896). We review a district court’s decision to
give an Allen charge for an abuse of discretion. See United States v.
Cropp, 127 F.3d 354, 359 (4th Cir. 1997). The Allen charge com-
parted with this court’s requirements for such instruction and we find
no abuse of discretion.
Weymouth contends the district court erred in accepting the base
offense level set forth in the presentence report, which counted the
total quantity of cocaine seized rather than attributing to Weymouth
less than twenty-five grams of cocaine, the amount found by the jury
in a special verdict. This court reviews the district court’s factual
determinations as to drug quantity for clear error. See United States
UNITED STATES v. WEYMOUTH 3
v. Love, 134 F.3d 595, 606 (4th Cir. 1998). Evidence at trial estab-
lished 129 grams of cocaine were seized in one container, and Wey-
mouth’s fingerprint was on a piece of paper in that container. We find
that the Government established the quantity of drugs properly attrib-
utable to Weymouth by a preponderance of the evidence. See U.S.
Sentencing Guidelines Manual § 1B1.3, comment. (n.2) (2000). See
also United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994).
Weymouth next asserts that his sentence was improperly adjusted
upward for possession of a shotgun. He contends that the shotgun was
not a dangerous weapon under USSG § 2D1.1(b)(1), because the gun
was old, and there is no evidence tying it to the cocaine. The determi-
nation that a weapon enhancement is warranted is a factual question
subject to clear error review. United States v. Apple, 915 F.2d 899,
914 (4th Cir. 1990). We conclude that the district court did not clearly
err when Weymouth’s sentence was enhanced for possession of a
dangerous weapon because Weymouth did not show it was clearly
improbable that the weapon was connected with the offense. USSG
§ 2D1.1, comment. (n.3); United States v. Harris, 128 F.3d 850, 852
(4th Cir. 1997).
Finally, Weymouth asserts that the district court improperly con-
sidered suppressed evidence in determining his sentence. We find no
reversible error. See 18 U.S.C. § 3661 (2000); USSG § 6A1.3.
Accordingly, we affirm Weymouth’s conviction and sentence. 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