UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4050
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER LYNN SHORT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:04-cr-793-TLW)
Submitted: July 27, 2007 Decided: August 17, 2007
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
J. Falkner Wilkes, CRAVEN & WILKES, Greenville, South Carolina, for
Appellant. Reginald I. Lloyd, United States Attorney, Rose Mary
Parham, Assistant United States Attorney, Thomas E. Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher L. Short appeals his conviction and sentence for
conspiracy to traffic in fifty grams or more of crack cocaine and
five kilograms or more of cocaine, in violation of 21 U.S.C. § 846
(2000). On appeal he argues that the district court erred in
permitting fellow inmates to testify to his pre-trial admissions
and erred in applying a two-level sentencing enhancement for
possession of a firearm. Finding no error, we affirm.
Short argues that the admission of fellow jail inmates Lloyd
Moses and Vernie Blount’s testimony regarding self-incriminating
statements that Short made violated his Fifth and Sixth Amendment
right to counsel. He contends that the ATF was actively involved
with Moses and therefore Moses was acting as an agent of the
Government when he elicited information from Short. The Government
contends that Short has waived this issue because he did not raise
it in the district court.
Rule 12(b)(3) of the Federal Rules of Criminal Procedure
requires motions to suppress evidence be made before trial. United
States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997). Failure to
make a motion to suppress before trial constitutes waiver unless
the trial court grants relief from the waiver under Rule 12(e) for
cause shown. Fed. R. Crim. P. 12(e); United States v. Ricco, 52
F.3d 58, 62 (4th Cir. 1995). Short therefore must show cause for
his failure to file a pretrial motion to suppress. Because Short
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failed to raise the issue of Fifth and Sixth Amendment violations
due to the admission of Short’s statements made to fellow inmates
at Dillon, and he does not allege cause for his failure to do so,
we conclude he has waived his right to raise the issue.
Short also argues that the district court erred in admitting
the testimony of fellow inmate Kevin Youngfellow, who testified
that Short told him he might plead guilty if the Government “would
offer him a good plea.” Short objected at trial to the
admissibility of this statement on the ground that it was a “plea
negotiation[] prior to trial,” in violation of Rule 410 of the
Federal Rules of Evidence.
We review rulings on admissibility of evidence for abuse of
discretion. See United States v. Fulks, 454 F.3d 410, 435 (4th
Cir. 2006). Rule 410 makes inadmissible, inter alia, “any
statement made in the course of any proceedings under Rule 11 of
the Federal Rules of Criminal Procedure” or “any statement made in
the course of plea discussions with an attorney for the prosecuting
authority.” Fed. R. Evid. 410. A statement made to a fellow
inmate about one’s plan to plead guilty does not fall into either
of these categories. Accordingly, we conclude that the district
court did not abuse its discretion in admitting Youngfellow’s
testimony.
Next, Short argues that the district court erred in applying
the enhancement for the possession of a firearm related to the
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count of conviction under U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2004) because it found that § 2D1.1(b)(1) did not
require a formal finding on nexus between the possessed firearm and
the count of conviction. The district court stated that
§ 2D1.1(b)(1) did not require a formal nexus finding, but rather
that one may be implicit in application of the enhancement.
An enhancement under USSG § 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 receives a two-level
increase to his base offense level under USSG § 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.” USSG § 2D1.1(b)(1), comment. (n.3). “Under relevant
conduct principles, the enhancement applies when the weapon was
possessed in connection with drug activity that was part of the
same course of conduct or common scheme as the offense of
conviction.” McAllister, 272 F.3d at 233-34 (internal quotation
marks and citation omitted).
The Government adequately proved the weapon was possessed in
connection with drug activity. The evidence at trial showed that
Short repeatedly possessed firearms during the charged drug
conspiracy. He traded drugs for firearms, stored firearms,
including an AK-47 rifle, at his house where he sold cocaine, and
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assaulted Timothy Backmon, a crack addict Short thought had broken
into his home, by hitting him in the face with a pistol. Standing
alone, the pistol whipping was sufficient to establish possession
of the firearm related to the offense. See United States v.
Harris, 128 F.3d 850, 852 (4th Cir. 1997) (“precisely concurrent
acts,” such as handling a firearm while storing drugs is not
needed).
Although the district court did not find it necessary to make
a specific finding on nexus, it found that it was not unreasonable
to believe that Short’s firearms were connected to the drug
conspiracy. The court stated that Short’s pistol whipping of
Backmon “arose out of” Short’s drug dealing. Therefore, the court
made sufficient findings to support the enhancement, and did not
err in its interpretation or application of § 2D1.1(b)(1).
We therefore affirm the judgment. 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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