UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4221
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VIENGKHAM VILAISANE, a/k/a Keal,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
District Judge. (2:05-cr-00182-2)
Submitted: January 30, 2008 Decided: February 29, 2008
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Deirdre H. Purdy, Chloe, West Virginia, for Appellant. Erik S.
Goes, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Viengkham Vilaisane appeals his conviction and 210-month
sentence after pleading guilty to conspiracy to distribute fifty
grams or more of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (2000). Vilaisane’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), in which he
asserts that there are no meritorious issues for appeal, but asks
this court to review whether the district court erred by imposing
offense-level enhancements for Vilaisane’s role as an organizer or
leader and for possession of a dangerous weapon in connection with
the distribution of narcotics. Vilaisane was given an opportunity
to file a pro se supplemental brief, but has not done so. Finding
no error, we affirm.
Following United States v. Booker, 543 U.S. 220 (2005),
a district court is no longer bound by the range prescribed by the
sentencing guidelines. United States v. Hughes, 401 F.3d 540, 546-
47 (4th Cir. 2005). A court must initially calculate the
appropriate guidelines range, making any appropriate factual
findings. United States v. Davenport, 445 F.3d 366, 370 (4th Cir.
2006). The court then considers the resulting advisory guidelines
range in conjunction with the factors under 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2007), and determines an appropriate sentence.
Gall v. United States, 128 S. Ct. 586, 596 (2007); Davenport, 445
F.3d at 370. This court will affirm a post-Booker sentence if it
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is within the statutorily prescribed range and is reasonable.
Hughes, 401 F.3d at 546-47. A sentence within the properly
calculated guidelines range is presumptively reasonable. United
States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S.
Ct. 2309 (2006); see Rita v. United States, 127 S. Ct. 2456 (2007).
In assessing a challenge to a sentencing court’s
application of the sentencing guidelines, this court reviews a
district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Allen, 446 F.3d 522, 527
(4th Cir. 2006). Under USSG § 2D1.1(b)(1) (2007), a two-level
offense level enhancement shall be imposed if a dangerous weapon,
including a firearm, was possessed during the narcotics offense.
The adjustment is applied “if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense.”
USSG § 2D1.1(b)(1) cmt. n.3. In order to demonstrate that a weapon
was present, the Government need show only that “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.” United States v. McAllister, 272 F.3d 228, 233-34
(4th Cir. 2001) (internal quotation marks and citation omitted).
At the sentencing hearing, Vilaisane contended that the
firearms found in a closet at his home by police were not loaded
and were used for hunting, that the testimony provided by a
government informant was not credible, and that there was no
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evidence that weapons were used or brandished during any drug
activity. However, Vilaisane did not dispute that there was a
handgun in his rental car during an attempt to collect $200,000 in
methamphetamine proceeds from a government informant.1
Furthermore, the multiple firearms found by police in Vilaisane’s
residence were located next to two digital scales, a vacuum sealer,
and used plastic bags.2 Based on this evidence, it is clear that
Vilaisane had constructive possession of the firearm in his rental
car at the time of his arrest. See United States v. Gallimore, 247
F.3d 134, 137 (4th Cir. 2001). Additionally, the proximity of the
weapons to the drug paraphernalia found at Vilaisane’s residence
indicates that those firearms were also connected to the drug
conspiracy. See McAllister, 272 F.3d at 233-34. Therefore, we
find the district court did not err in finding that Vilaisane
possessed a dangerous weapon in relation to the underlying drug
trafficking offense.
Pursuant to USSG § 3B1.1(c) (2007), a defendant qualifies
for a two-level offense level enhancement if he was an “organizer,
leader, manager, or supervisor” in any criminal activity that did
not involve five or more participants and was not otherwise
1
The government informant indicated that Vilaisane and his
brothers had all been armed during their prior drug transactions.
2
According to the government informant, Vilaisane would
deliver the methamphetamine in vacuum-sealed plastic bags. A white
residue found on the vacuum sealer and the scales tested positive
for methamphetamine.
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extensive. Factors distinguishing a leadership or organizational
role from lesser roles include exercise of decision making
authority, the nature of the participation in the offense,
recruitment of accomplices, the claimed right to a larger share of
the proceeds, the degree of participation in planning or organizing
the offense, the nature and scope of the illegal activity, and the
degree of control and authority exercised. USSG § 3B1.1, cmt. n.4.
For a role adjustment to be given because a defendant was a leader,
the defendant must have controlled others. See United States v.
Carter, 300 F.3d 415, 426 (4th Cir. 2002).
At the sentencing hearing, Vilaisane contended that the
government informant was in fact the “leader” of the organization,
as Vilaisane was not the original supplier but rather took over
that role at a later time. Additionally, Vilaisane noted that he
would front the drugs to the informant and be repaid later, which
he characterized as a “fairly unusual situation” for the leader of
a drug organization. However, at the very least, Vilaisane held a
leadership or managerial role as to his brothers, who also were
involved in transporting methamphetamine. Following the arrest of
the government informant’s initial supplier, Vilaisane took over
the role of procuring the required methamphetamine and organizing
the transactions with the informant. After recruiting his brothers
and involving them in the operation, it was Vilaisane who would
personally receive the payments from the drug sales and distribute
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the proceeds with his brothers. Based on Vilaisane’s critical role
in the conspiracy, the recruitment and involvement of his brothers
in the transactions, and his high level of control over the entire
enterprise, we find that the district court did not err in finding
that Vilaisane was a leader or organizer of the underlying drug
conspiracy.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Vilaisane’s conviction and sentence. This court
requires counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further 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.
Counsel’s motion must state that a copy thereof was served on the
client. 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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