UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4819
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SOUVIRA SIMALAYVONG,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:06-cr-00063-RLV-DCK-1)
Submitted: December 18, 2009 Decided: January 12, 2010
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joshua D. Davey, MCGUIRE WOODS LLP, Charlotte, North Carolina,
for Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Souvira Simalayvong pled guilty to conspiracy to
possess with intent to distribute methamphetamine, in violation
of 21 U.S.C. § 846 (2006) (Count 1), and two counts of
possessing with intent to distribute methamphetamine and aiding
and abetting, in violation of 21 U.S.C. § 841(a)(1) (2006) and
18 U.S.C. § 2 (2006) (Counts 3, 4). He proceeded to trial on
his remaining charge that he used and carried a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C.A. § 924(c) (West Supp. 2009), and the jury found him not
guilty. Simalayvong was sentenced to 108 months of imprisonment
for each conviction, to be served concurrently. On appeal,
Simalayvong argues that the district court erred by imposing a
two-level enhancement for possession of a firearm during the
commission of a drug trafficking offense under U.S. Sentencing
Guidelines Manual (“USSG”) § 2D1.1(b)(1) (2007). For the
reasons that follow, we affirm.
We do not find that the district court’s factual
finding that Simalayvong possessed the gun at issue in
connection with his drug dealing was clear error. United States
v. Allen, 446 F.3d 522, 527 (4th Cir. 2006) (providing legal and
factual review standard); United States v. Moreland, 437 F.3d
424, 433 (4th Cir. 2006) (factual findings at sentencing are
reviewed for clear error). Sentencing enhancements need only be
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supported by a preponderance of the evidence, United States v.
Miller, 316 F.3d 495, 503 (4th Cir. 2003), and the USSG § 2D1.1
enhancement is proper if the weapon was present “unless it is
clearly improbable that the weapon was connected to the
offense.” USSG § 2D1.1, comment. (n.3). The facts presented at
Simalayvong’s trial regarding his possession of the Taurus
pistol were sufficient for the district court to impose the
enhancement.
Accordingly, we find no reversible error and affirm
Simalayvong’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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