UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4055
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOAQUIN LOPEZ CANO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:05-cr-00354-JAB)
Submitted: September 24, 2007 Decided: October 12, 2007
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., Winston-
Salem, North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Sandra J. Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joaquin Lopez Cano appeals from his 120-month sentence
imposed following his guilty plea to conspiracy to distribute
cocaine. He asserts that the district court erred by increasing
his offense level by two for possession of a dangerous weapon, U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) (2005 & Supp. 2006), and
by not reducing his offense level pursuant to the safety valve
provision of USSG § 5C1.2. We affirm.
Section 2D1.1(b)(1) of the Sentencing Guidelines provides
for a two-level increase if the defendant possessed a firearm or
dangerous weapon. USSG § 2D1.1(b)(1). The commentary explains
that a defendant possesses a firearm if “the weapon was present,
unless it is clearly improbable that the weapon was connected with
the offense.” Id., comment. (n.3). Application of this
enhancement requires only that the weapon is involved in the
offense conduct as a whole. See United States v. Falesbork, 5 F.3d
715, 720-21 (4th Cir. 1993). “[P]ossession of the weapon during
the commission of the offense is all that is needed to invoke the
enhancement. The sentencing court is not required to find any more
of a connection between the possession of the weapon and the
commission of the drug offense.” United States v. Apple, 962 F.2d
335, 338 (4th Cir. 1992). When the offense of conviction is
conspiracy, the court has applied the two-level increase “when the
weapon is discovered in a place where the conspiracy was carried
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out or furthered.” Id.; see United States v. Harris, 128 F.3d 850,
852 (4th Cir. 1997).
Here, the district court found that the enhancement
applied, noting that a heavy-duty scale, duct tape, and sandwich
bags--all drug paraphernalia--were found in the bathroom of Cano’s
residence, and a gun was located in his bedroom. The court noted
that wiretap conversations established that Cano and his mother,
also a co-conspirator, had discussed the potential delivery of
drugs to his residence, and that two kilograms of cocaine were
buried in Cano’s mother’s garage--which was 50 to 75 yards from
Cano’s residence--in just the manner in which Cano and his mother
had discussed in another wiretap conversation. We find no clear
error in the district court’s conclusion that these facts were
sufficient to justify the enhancement for possession of the weapon.
See United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001)
(providing standard).
Having found that Cano possessed a firearm and that it
was not clearly improbable that the possession was in connection
with the conspiracy offense, USSG § 2D1.1(b)(1), comment. (n.3), we
find that the district court did not plainly err* in determining
further that Cano possessed a firearm in connection with the
*
Because Cano did not present this argument in the district
court, our review is for plain error. See United States v. Olano,
507 U.S. 725, 732-37 (1993).
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conspiracy offense and thus did not qualify for the safety valve
reduction. See USSG § 5C1.2(a)(2).
In conclusion, we affirm Cano’s sentence. 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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