UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4695
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALLEN VAN BRITT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:07-cr-00101-LHT-1)
Submitted: June 12, 2009 Decided: July 2, 2009
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Allen Van Britt pled guilty pursuant to a written plea
agreement to conspiracy to possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 846 (2006). Britt
was sentenced to 115 months’ imprisonment. Finding no error, we
affirm.
Counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he asserts there are
no meritorious issues for appeal but questions whether the
district court properly applied U.S. Sentencing Guidelines
Manual (“USSG”) § 2D1.1(b)(1) (2007). Additionally, counsel
contends that Britt’s sentence is unreasonable because it is
disparate to the sentences of other involved defendants. Britt
was notified of his right to file a pro se supplemental brief,
but he did not do so. The Government elected not to file a
responsive brief.
When determining a sentence, the district court must
calculate the appropriate advisory Guidelines range and consider
it in conjunction with the factors set forth in 18 U.S.C.
§ 3553(a) (2006). Gall v. United States, 128 S. Ct. 586, 596
(2007). Appellate review of a district court’s imposition of a
sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” is for abuse of discretion. Id.
at 591.
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The district court followed the necessary procedural
steps in sentencing Britt, appropriately treating the Guidelines
as advisory, properly calculating and considering the applicable
Guidelines range, and referencing § 3553(a). Furthermore, the
court considered the Government’s assertion that Britt provided
substantial assistance by truthfully detailing “his role in the
conspiracy and the roles of others within the conspiracy.”
Because of his substantial assistance, Britt was sentenced by
the district court below the statutory mandatory minimum, see 21
U.S.C.A. § 841(b)(1)(B) (West 1999 & Supp. 2009) (prescribing
ten-year minimum for cases involving fifty grams or more of a
mixture or substance containing a detectable amount of
methamphetamine and a prior felony drug conviction), to 115
months.
Counsel, however, contends that the district court
erred in its application of USSG § 2D1.1(b)(1). When reviewing
the district court’s application of the Sentencing Guidelines,
we review findings of fact for clear error and questions of law
de novo. United States v. Layton, 564 F.3d 330, 334 (4th Cir.
2009). Section 2D1.1(b)(1) provides for a two-level enhancement
if the defendant possessed a dangerous weapon, including a
firearm, in connection with the offense. This “enhancement
. . . reflects the increased danger of violence when drug
traffickers possess weapons” and “should be applied . . . unless
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it is clearly improbable that the weapon was connected with the
offense.” USSG § 2D1.1, comment. (n.3). Application of the
enhancement does not “require[] proof of precisely concurrent
acts, for example, gun in hand while in the act of storing drugs
. . . .” United States v. Johnson, 943 F.2d 383, 386 (4th Cir.
1991) (per curiam). Moreover, when the offense committed is
conspiracy, § 2D1.1(b)(1) may be established by a showing that
“the weapon [was] discovered in a place where the conspiracy was
carried out or furthered.” United States v. Apple, 962 F.2d
335, 338 (4th Cir. 1992).
The firearm at issue was discovered hidden under a
mattress in Britt’s bedroom. Prior to the arrival of law
enforcement officers, Britt stated that he and other members of
the conspiracy were in his bedroom “weighing out drugs.”
Britt’s assertion that the firearm belonged to another involved
defendant is irrelevant as the weapon was clearly present in a
place where the object of the conspiracy was being furthered.
Thus, based on these facts, the firearm enhancement was properly
applied.
Counsel’s disparate sentence argument likewise is
unavailing as we have previously rejected such a contention,
stating that “‘the kind of “disparity” with which § 3553(a)(6)
is concerned is an unjustified difference across judges (or
districts) rather than among defendants to a single case.’”
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United States v. Pyles, 482 F.3d 282, 290 (4th Cir. 2007)
(quoting United States v. Boscarino, 437 F.3d 634, 638 (7th Cir.
2006)), vacated on other grounds, 128 S. Ct. 865 (2008)
(vacating for consideration in light of Gall). As there is
nothing in the joint appendix to suggest that Britt’s sentence
is disparate among the broader scope of similarly situated
defendants, we conclude the district court did not abuse its
discretion in imposing the chosen sentence.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. This court requires that 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 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 in the decisional process.
AFFIRMED
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