United States v. Charley

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4245

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

VALERIE CHARLEY,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (CR-03-558-MBS)

Submitted: December 12, 2005 Decided: March 3, 2006

Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, William K. Witherspoon, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Valerie Charley appeals her guilty-plea conviction and

sentence for conspiracy to possess with intent to distribute more

than five grams of cocaine base, in violation of 21 U.S.C. § 846

(2000).

Charley asserts that the district court’s application of

a two-level enhancement under U.S. Sentencing Guidelines Manual

§ 2D1.1 resulted in a sentence that exceeded the maximum term

authorized by the facts established in her plea agreement, in

violation of Blakely v. Washington, 542 U.S. 296 (2004), and United

States v. Booker, 543 U.S. 220 (2005). Although the two-level

enhancement for use of a firearm was based upon facts found by the

judge and not admitted to by Charley, we conclude that Charley

suffered no Sixth Amendment violation. See United States v. Evans,

416 F.3d 298, 300-01 (4th Cir. 2005) (noting that, in determining

whether Sixth Amendment error occurred, sentence imposed must be

compared to permissible guideline range before adjusting for

acceptance of responsibility).

Charley also contends that the district court erred by

applying the firearm enhancement to her sentence because it was

clearly improbable that the firearm was connected to the drug

offense. The district court’s enhancement under § 2D1.1(b)(1) is

reviewed for clear error. United States v. McAllister, 272 F.3d

228, 234 (4th Cir. 2001). Under the guidelines, a defendant’s

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offense level must be increased by two under U.S.S.G. § 2D1.1(b)(1)

if a dangerous weapon was possessed during the offense. This

“adjustment should be applied if the weapon was present, unless it

is clearly improbable that the weapon was connected with the

offense.” U.S.S.G. § 2D1.1(b)(1) comment. (n.3). 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 applied. See McAllister, 272 F.3d at 234 (“In

order to prove that a weapon was present, 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 United States v. Harris,

128 F.3d 850, 852 (4th Cir. 1997) (noting that the test requires

nothing more than that the guns be located in the same place where

drugs are stored or distributed).

Here, it is undisputed that Charley distributed cocaine

base from her residence. Moreover, it is also undisputed that in

executing a search warrant, police recovered a firearm from

Charley’s residence. On these facts we cannot say that the

district court committed clear error in applying the firearm

enhancement to Charley. Harris, 128 F.3d at 852.

For the reasons set forth above, we affirm Charley’s

conviction and sentence. We dispense with oral argument because

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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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