PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4292
KENNETH MANIGAN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., Senior District Judge.
(7:07-cr-00832-HMH-1)
Argued: October 30, 2009
Decided: January 26, 2010
Before MICHAEL, KING, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Judge Agee joined. Judge Michael wrote a sepa-
rate opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Joseph Bradley Bennett, SALVINI & BEN-
NETT, LLC, Greenville, South Carolina, for Appellant. Wil-
liam J. Watkins, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Greenville, South Carolina, for Appellee. ON
2 UNITED STATES v. MANIGAN
BRIEF: Jessica Salvini, SALVINI & BENNETT, LLC,
Greenville, South Carolina, for Appellant. W. Walter Wilkins,
United States Attorney, Columbia, South Carolina, E. Jean
Howard, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
OPINION
KING, Circuit Judge:
Kenneth Manigan pursues this appeal from his sentence in
the District of South Carolina on three convictions for posses-
sion with intent to distribute cocaine, in contravention of 21
U.S.C. § 841(a)(1). Two contentions are presented for our
consideration. First, the Government maintains that Manigan
waived his right of appeal, precluding our review of any
assertion of sentencing error. Second, Manigan contends that
he is entitled to be resentenced because the district court erro-
neously enhanced his sentence, pursuant to section
2D1.1(b)(1) of the Sentencing Guidelines, for the specific
offense characteristic of possession of a dangerous weapon.
As explained below, we reject the proposition that Manigan
waived his right of appeal. On the merits, we deny Manigan’s
sentencing contention and affirm.
I.
A.
Manigan’s sentence is predicated on his involvement in
three drug offenses that occurred between April and June
2007. On April 4, 2007, a confidential informant (the "CI")
was arrested in Spartanburg, South Carolina, in possession of
approximately 4.5 ounces of cocaine.1 The CI immediately
1
The facts spelled out herein are largely drawn from Manigan’s Presen-
tence Investigation Report, which the sentencing court adopted, supple-
UNITED STATES v. MANIGAN 3
cooperated with the authorities and identified Manigan as his
drug supplier, advising them that he owed Manigan for nine
ounces of cocaine. The following day, April 5, 2007, the CI
met with Manigan in the front yard of the residence at 202
Charlesworth Avenue in Spartanburg.2 After a brief conversa-
tion, the two men entered the CI’s car, where the CI paid
Manigan $5600 in cash for the nine ounces of cocaine.
Thereafter, on May 26, 2007, the CI advised the authorities
that Manigan had phoned that morning to arrange a meeting
for the delivery of approximately 4.5 ounces of cocaine. As
a result, Manigan and the CI soon met in the parking lot of
a CVS Pharmacy on Union Street in Spartanburg. While
there, Manigan "fronted" the CI 124.56 grams of cocaine.3
Four days later, on May 30, 2007, the CI called Manigan to
arrange for payment of the fronted cocaine. The two men met
outside the residence at 202 Charlesworth Avenue, where the
CI paid Manigan $2800 in cash for the fronted cocaine.
Finally, on June 11, 2007, the CI again called Manigan and
asked him to front two ounces of cocaine. Manigan agreed
and sent "Tom Boy," one of his colleagues, to deliver 57.5
grams of cocaine to the CI, in exchange for $1700 in cash to
be paid when the cocaine was sold. On June 13, 2007, Mani-
gan and the CI agreed to meet at a residence on Pennwood
Drive in Spartanburg so that the CI could pay Manigan. After
mented by relevant aspects of the record. See J.A. 60, 74–88. (Citations
herein to "J.A. ___" refer to the contents of the Joint Appendix filed by
the parties in this appeal.)
2
The Presentence Investigation Report identifies Manigan’s address as
202 Charlesworth Avenue, Spartanburg, SC 29306. Manigan’s mother
may have owned that property.
3
"Fronting" is the common practice of a drug supplier delivering illegal
drugs to a dealer on consignment. In a fronting transaction, the drug dealer
receives the drugs up front and pays his supplier later, after the drugs have
been sold on the street. See United States v. Scheetz, 293 F.3d 175, 179
n.1 (4th Cir. 2002).
4 UNITED STATES v. MANIGAN
obtaining $1700 in cash from the authorities, the CI drove to
the Pennwood Drive residence. Manigan was waiting inside
and the CI gave Manigan the money.
On June 20, 2007, the authorities executed a search warrant
at 202 Charlesworth Avenue. In the back right bedroom of the
residence, the agents found two shoe boxes. One shoe box,
found on the right side of the bed, contained two handguns,
which the agents seized.4 One of the seized firearms was later
determined to be stolen. The second shoe box, found near
where the handguns were seized, contained "various papers
addressed to Manigan at 202 Charlesworth Avenue." J.A. 78.
The federal agents also searched a 1990 Chevrolet Caprice
located at the residence and seized a bag containing 3.26
grams of cocaine from under the driver’s seat. Manigan was
the registered owner of the Caprice. Manigan was arrested
that very day in possession of 32.05 grams of marijuana, 6.70
grams of crack cocaine, and $9520 in cash.5 During an inter-
view with the authorities on June 27, 2007, and again at sen-
tencing, Manigan admitted that the seized handguns were his.
B.
On July 10, 2007, the grand jury in Spartanburg returned a
three-count indictment against Manigan, each count charging
possession with intent to distribute cocaine, in contravention
of 21 U.S.C. § 841(a)(1). On October 23, 2007, Manigan
pleaded guilty to all three counts. In the plea agreement
between Manigan and the Government (the "Plea Agree-
ment"), Manigan agreed, inter alia, to
4
The Presentence Investigation Report does not indicate whether either
of the two handguns seized from the residence at 202 Charlesworth Ave-
nue was loaded.
5
Manigan’s counsel acknowledged at oral argument that Manigan’s
June 20, 2007 arrest occurred at the 202 Charlesworth Avenue residence.
The Government’s counsel was unable to confirm this concession, nor
does the record clearly support it. We do not rely on the concession.
UNITED STATES v. MANIGAN 5
waive[ ] the right to contest either the conviction or
the sentence in any direct appeal or other post-
conviction action.
J.A. 49. At the completion of his plea hearing, however, the
district court advised Manigan, without objection, that "[o]nce
you are sentenced, you and the Government may have a right
to appeal this sentence." Id. at 30.
After Manigan’s guilty pleas, the probation officer calcu-
lated Manigan’s Guidelines range as 151 to 188 months,
premised on an offense level of 29 and a criminal history cat-
egory of VI. The Presentence Investigation Report (the
"PSR") arrived at this offense level by starting with a base
offense level of 26 and then recommending a two-level
enhancement, pursuant to section 2D1.1(b)(1) of the Guide-
lines, for the specific offense characteristic of possession of
a dangerous weapon (the "weapon enhancement"), which
resulted in an adjusted offense level of 28.6 Because Manigan
qualified as a career offender, however, the PSR enhanced his
offense level to 32. See USSG § 4B1.1. Finally, the PSR sub-
tracted three levels for acceptance of responsibility, resulting
in a total offense level of 29. See id. § 3E1.1.
On January 28, 2008, Manigan filed a written objection to
the PSR’s references to firearm possession and to application
of the weapon enhancement. His contention did not directly
relate, however, to the essential nexus between the seized fire-
arms and his offense conduct. Instead, Manigan challenged
only the PSR’s reference to his ownership of the firearms.
More specifically, Manigan claimed that he admitted such
6
Manigan was sentenced under the 2007 edition of the Guidelines. Sec-
tion 2D1.1(b)(1) is found in Chapter Two of the Guidelines, entitled "Of-
fense Conduct." Subsections of Chapter Two describe "specific offense
conduct" that can impact a defendant’s offense level. One of the "specific
offense characteristics" applicable to drug-trafficking offenses provides
that, "[i]f a dangerous weapon (including a firearm) was possessed,
increase [the offense level] by 2 levels." USSG § 2D1.1(b)(1).
6 UNITED STATES v. MANIGAN
ownership as part of an immunized proffer he had made to the
prosecutors, arguing that such circumstances precluded the
sentencing court from using the ownership admission against
him. The probation officer responded that the authorities had
independently established Manigan’s ownership of the two
firearms prior to any such proffered admission and that, as a
result, the PSR’s recommended application of the weapon
enhancement was appropriate.
Manigan first objected to the nexus aspect of the weapon
enhancement at his sentencing hearing on February 28, 2008.
More specifically, Manigan orally contended that the Govern-
ment had failed to establish that the handguns seized at 202
Charlesworth Avenue were sufficiently related to his offenses
of conviction. The Government countered that the PSR prop-
erly recommended the weapon enhancement. The prosecutors
emphasized that (1) cocaine was found in Manigan’s car dur-
ing the search at the Charlesworth Avenue residence, and (2)
the authorities had observed Manigan proceed directly from
the Charlesworth Avenue residence to other locations where
he engaged in fronting transactions.
At the conclusion of the sentencing hearing, the district
court adopted "the findings including the guideline calcula-
tions contained in the [PSR]," thus overruling Manigan’s
objection to the weapon enhancement. J.A. 60. The court then
determined Manigan to be a career offender, calculated his
advisory Guidelines range as 151 to 188 months, and sen-
tenced him to concurrent terms of 169 months on each of his
three convictions, followed by three years of supervised
release. Notably, the district court concluded the sentencing
proceedings by again advising Manigan that he "ha[d] the
right to appeal this sentence." Id. at 66. Manigan has filed a
timely notice of appeal, and we possess jurisdiction pursuant
to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
II.
The issue of whether a defendant has waived his right of
appeal in connection with a plea proceeding "is a matter of
UNITED STATES v. MANIGAN 7
law that we review de novo." United States v. Brown, 232
F.3d 399, 403 (4th Cir. 2000). In assessing whether a district
court has properly applied the Guidelines — including the
application of an enhancement — "we review the district
court’s legal conclusions de novo and its factual findings for
clear error." United States v. Layton, 564 F.3d 330, 334 (4th
Cir. 2009). The question of whether a defendant, as a specific
offense characteristic, possessed a dangerous weapon for pur-
poses of the weapon enhancement is a factual determination
subject to clear error review. See United States v. Rusher, 966
F.2d 868, 880 (4th Cir. 1992).
III.
The Government’s primary contention in this proceeding is
that we need not address the merits of Manigan’s appeal,
because the Plea Agreement’s appellate waiver mandates dis-
missal. Manigan’s sole appellate contention is that the district
court erred in its application of the weapon enhancement. We
assess these contentions in turn.
A.
We first analyze the Government’s assertion that this
appeal must be dismissed because Manigan waived his right
of appeal. The Government contends that the Plea Agree-
ment’s plain and unambiguous terms, coupled with Manigan’s
plea colloquy representation that he had discussed the Agree-
ment with his attorney and understood its terms, demonstrate
that Manigan knowingly and intelligently waived his right of
appeal.7
7
The waiver provision of the Plea Agreement, on which the Govern-
ment relies for its contention that Manigan’s appeal must be dismissed, is
in Paragraph 14, which states as follows:
The Defendant is aware that 18 U.S.C. § 3742 and 28 U.S.C.
§ 2255 afford every defendant certain rights to contest a convic-
tion and/or sentence. Acknowledging those rights, the Defendant,
8 UNITED STATES v. MANIGAN
We have heretofore recognized that a defendant can,
through a plea agreement, waive his appellate rights. See
United States v. Poindexter, 492 F.3d 263, 267–68 (4th Cir.
2007). And we will enforce such a waiver if it is valid and if
the issue sought to be appealed is within its scope. See United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appel-
late waiver is valid if the defendant knowingly and intelli-
gently agreed to it. See id. at 169. Whether a defendant
knowingly and intelligently agreed to waive his right of
appeal "must be evaluated by reference to the totality of the
circumstances." See United States v. General, 278 F.3d 389,
400 (4th Cir. 2002).
An important factor in such an evaluation is whether the
district court sufficiently explained the waiver to the defen-
dant during the Federal Rule of Criminal Procedure 11 plea
colloquy. See General, 278 F.3d at 400. Indeed, Rule 11 spe-
cifically mandates that a district court, before accepting a plea
of guilty,
inform the defendant of, and determine that the
defendant understands, . . . the terms of any plea-
agreement provision waiving the right to appeal or to
collaterally attack the sentence.
Fed. R. Crim. P. 11(b)(1)(N). Although a district court’s fail-
ure to strictly abide by Rule 11 will not alone render an appel-
in exchange for the concessions made by the Government in this
Plea Agreement, waives the right to contest either the conviction
or the sentence in any direct appeal or other post-conviction
action, including any proceedings under 28 U.S.C. § 2255. This
waiver does not apply to claims of ineffective assistance of coun-
sel or prosecutorial misconduct. This Agreement does not affect
the rights or obligations of the Government as set forth in 18
U.S.C. § 3742(b). Nor does it limit the Government in its com-
ments in or responses to any post-sentencing matters.
J.A. 49.
UNITED STATES v. MANIGAN 9
late waiver unenforceable, see General, 278 F.3d at 400, "a
waiver is not knowingly or voluntarily made if the district
court fails to specifically question the defendant concerning
the waiver provision of the plea agreement during the Rule 11
colloquy and the record indicates that the defendant did not
otherwise understand the full significance of the waiver,"
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
After carefully assessing the relevant record, we are not
convinced that Manigan’s appellate waiver should be
enforced. During the Rule 11 proceeding, the district court
established that Manigan was a high school graduate who had
attended two years of college, and it ascertained that he had
discussed the Plea Agreement with his counsel and under-
stood its provisions. Although these circumstances suggest
that Manigan should have understood the appeal waiver, see
General, 278 F.3d at 400, the balance of the plea colloquy
fatally taints the waiver’s enforceability, see Marin, 961 F.2d
at 496. First, the court never specifically mentioned the
waiver provision or questioned Manigan on it. In fact, con-
trary to the Plea Agreement, the court advised Manigan that
he would be able to appeal his sentence. Moreover, the prose-
cutors interposed no objection to the court’s advice to Mani-
gan that he could appeal, and they failed to inform the court
that the Plea Agreement contained the waiver provision.
Simply put, we are unable in these circumstances to enforce
the appellate waiver. When a district court has advised a
defendant that, contrary to the plea agreement, he is entitled
to appeal his sentence, the defendant can hardly be said to
have knowingly waived his right of appeal. See United States
v. Zink, 107 F.3d 716, 718 (9th Cir. 1997) (concluding that
waiver was neither knowing nor voluntary where court
advised defendant, without objection, that he had right to
appeal); United States v. Ready, 82 F.3d 551, 557–58 (2d Cir.
1996) (allowing defendant to appeal sentence despite appel-
late waiver because court incorrectly advised defendant of
right to appeal sentence); see also United States v. Wood, 378
10 UNITED STATES v. MANIGAN
F.3d 342, 349 (4th Cir. 2004) (determining that defendant did
not knowingly waive right to appeal, in part because court
mischaracterized plea agreement’s material terms during plea
colloquy). It is worthy of emphasis that, in these Rule 11 pro-
ceedings, there was simply no discussion of the waiver issue.
See United States v. Wessells, 936 F.2d 165, 168 (4th Cir.
1991) (concluding that waiver was not voluntary, in part
because sentencing court failed to question defendant con-
cerning waiver provision). Finally, this problem was com-
pounded three months later, at the conclusion of Manigan’s
sentencing hearing, when the court again advised Manigan
that he "ha[d] the right to appeal this sentence." J.A. 66. In
these circumstances, the waiver contention interposed by the
Government must be rejected.
Having declined to dismiss Manigan’s appeal on the basis
of the Government’s waiver contention, we must turn to the
merits of his appeal — the issue of whether the district court
erred when it increased his offense level by applying the
weapon enhancement.
B.
1.
Section 2D1.1 of the Sentencing Guidelines establishes the
base offense level for narcotics offenses, including the 21
U.S.C. § 841(a)(1) offense on which Manigan was thrice con-
victed. See USSG § 2D1.1(a). Subsection (b) of section 2D1.1
identifies several "Specific Offense Characteristics" that,
when applicable, warrant an offense-level enhancement. See
id. § 2D1.1(b). The specific offense characteristic implicated
in this appeal provides that, "[i]f a dangerous weapon (includ-
ing a firearm) was possessed," the sentencing court is to "in-
crease by 2 levels" the offense level. Id. § 2D1.1(b)(1).
The relevant Application Notes provide that the weapon
enhancement "should be applied if the weapon was present,
UNITED STATES v. MANIGAN 11
unless it is clearly improbable that the weapon was connected
with the offense." USSG § 2D1.1 cmt. n.3. As Judge Wilkins
explained, the Government must prove by a preponderance of
the evidence 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 omitted). To satisfy that burden,
however, the Government does not need to prove "precisely
concurrent acts," such as a "gun in hand while in the act of
storing drugs." United States v. Johnson, 943 F.2d 383, 386
(4th Cir. 1991). Rather, proof of constructive possession of
the dangerous weapon is sufficient, and the Government is
entitled to rely on circumstantial evidence to carry its burden.
See United States v. Miggins, 302 F.3d 384, 391 (6th Cir.
2002); United States v. Hall, 46 F.3d 62, 64 (11th Cir. 1995).
In assessing whether a defendant possessed a firearm in
connection with relevant drug activity, a sentencing court is
entitled to consider several pertinent factors. One important
factor is the type of firearm involved. See United States v.
Drozdowski, 313 F.3d 819, 822 (3d Cir. 2002) (identifying
type of firearm as relevant to application of weapon enhance-
ment). As Judge Wilkinson explained in United States v. Har-
ris, 128 F.3d 850, 853 (4th Cir. 1997), and as the Guidelines
emphasize, see USSG § 2D1.1(b)(1) cmt. n.3, an unloaded
hunting rifle is a firearm that would not be readily connected
to drug activities. A handgun, on the other hand, has been
deemed "a tool of the drug trade because it is easy to conceal
yet deadly." United States v. Cantero, 995 F.2d 1407, 1411
(7th Cir. 1993) (internal quotation marks and alteration omit-
ted); see also United States v. Ward, 171 F.3d 188, 195 (4th
Cir. 1999) (observing that handguns are "indicia of drug deal-
ing"). More specifically, a drug trafficker is much more likely
to utilize a handgun — as opposed to a rifle or long gun —
due to size and concealability. See United States v. Lipford,
203 F.3d 259, 267 n.7 (4th Cir. 2000) ("When a gun is
12 UNITED STATES v. MANIGAN
involved in criminal activity, it is far more likely to be a hand-
gun than a rifle.").
The location or proximity of a seized firearm is also rele-
vant to a sentencing court’s analysis of whether it was pos-
sessed in connection with drug activities that were part of the
same course of conduct or common scheme as the offense of
conviction. Indeed, "the proximity of guns to illicit narcotics
can support a district court’s enhancement of a defendant’s
sentence under section 2D1.1(b)(1)." Harris, 128 F.3d at 852.
Similarly, firearms that are readily accessible during drug
activities can be deemed as possessed in connection there-
with. See United States v. Corral, 324 F.3d 866, 873 (7th Cir.
2003) ("[G]uns found in close proximity to drug activity are
presumptively connected to that activity."); Drozdowski, 313
F.3d at 823 (discussing accessibility as relevant factor). If a
drug offender has stored a handgun that can readily be
accessed if his drug activities turn sour, he may be said to
have possessed it in connection with such activities. Cf.
United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002)
(recognizing that readily accessible firearm suggests close
nexus between drug activities and firearm possession). In
short, as one of our sister circuits has explained, so long as a
firearm’s "location makes it readily available to protect either
the participants themselves during the commission of the ille-
gal activity or the drugs and cash involved in the drug busi-
ness, there will be sufficient evidence to connect the
weapon[ ] to the offense conduct." United States v. Cor-
cimiglia, 967 F.2d 724, 727 (1st Cir. 1992).
Importantly, a sentencing court faced with whether to apply
the weapon enhancement is entitled to take reasonable
account of the settled connection between firearms and drug
activities. As the Guidelines commentary explains, the
weapon enhancement "reflects the increased danger of vio-
lence when drug traffickers possess weapons." USSG § 2D1.1
cmt. n.3. And, under our precedent, "drugs and guns form a
lethal combination that can lead to violence," Harris, 128
UNITED STATES v. MANIGAN 13
F.3d at 852, especially when substantial drug trafficking is
involved, see United States v. Kennedy, 32 F.3d 876, 882 (4th
Cir. 1994) ("[T]he law has uniformly recognized that substan-
tial dealers in narcotics possess firearms . . . ." (internal quota-
tion marks omitted)). As another court of appeals emphasized,
"substantial dealers in narcotics keep firearms on their prem-
ises as tools of the trade." United States v. Wiener, 534 F.2d
15, 18 (2d Cir. 1976). Thus, a sentencing court might reason-
ably infer, in the proper circumstances, that a handgun seized
from the residence of a drug trafficker was possessed in con-
nection with his drug activities.8
2.
Manigan’s sole appellate contention is that the Government
failed to satisfy its burden of proof in support of the weapon
enhancement. Although he concedes ownership of the hand-
guns seized from the back right bedroom of the Charlesworth
Avenue residence, Manigan maintains that the Government
failed to sufficiently prove that he possessed those weapons
in connection with his drug activities.9 The pertinent facts,
8
If the Government satisfies its burden of proving possession of a
weapon in connection with drug activities, the defendant is entitled to per-
suade the sentencing court that the weapon enhancement is inapplicable.
He may do so by showing that it was "clearly improbable" that the weapon
was connected with his drug activities. See, e.g., United States v. Bothun,
424 F.3d 582, 586 (7th Cir. 2005) ("If the government [proves by a pre-
ponderance of the evidence that the defendant possessed the weapon], the
burden shifts to the defendant to show that it was ‘clearly improbable’ that
the weapon was connected to the offense."); United States v. Heckard, 238
F.3d 1222, 1233 (10th Cir. 2001); United States v. Calhoun, 49 F.3d 231,
236 (6th Cir. 1995); Hall, 46 F.3d at 63; Corcimiglia, 967 F.2d at 727–28.
When the government satisfies its burden, however, and if the defendant
fails to make the "clearly improbable" showing, the weapon enhancement
may properly be applied. See Harris, 128 F.3d at 853.
9
Manigan has not further pursued the immunity contention he raised in
the district court with respect to his proffer of handgun ownership. For our
purposes, therefore, he owned both of the handguns seized from the Char-
lesworth Avenue residence.
14 UNITED STATES v. MANIGAN
Manigan emphasizes, fail to show "that [he] utilized the fire-
arms during his drug activity." Br. of Appellant 11. This
assertion misses the point, however, because it was not neces-
sary for Manigan to have actually "utilized" the seized hand-
guns during an observed and prosecuted drug transaction.
Rather, the Government’s burden was to prove, by a prepon-
derance of the evidence, that Manigan possessed the hand-
guns "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.
Our resolution of this appellate contention implicates a cir-
cumstantial evidence issue, and the sentencing court’s appli-
cation of the weapon enhancement presents a relatively close
question. Cf. McAllister, 272 F.3d at 233–34 (deeming
weapon enhancement inapplicable where only evidence of
possession was witness’s statement); United States v. Nelson,
6 F.3d 1049, 1056 (4th Cir. 1993) (affirming weapon
enhancement when handguns found in dwelling where drugs
seized); United States v. Rusher, 966 F.2d 868, 880 (4th Cir.
1992) (affirming weapon enhancement when drugs and hand-
gun seized from same briefcase). This issue, however — even
if it could have been resolved differently — is reviewed only
for clear error, see Harris, 128 F.3d at 852, and the trial
court’s fact-finding in support of the enhancement is entitled
to appropriate deference, see 18 U.S.C. § 3742(e) ("The court
of appeals . . . shall accept the findings of fact of the district
court unless they are clearly erroneous . . . .").
Applying a clear error standard, we "will not reverse a
lower court’s finding of fact simply because we would have
decided the case differently." Easley v. Cromartie, 532 U.S.
234, 242 (2001) (internal quotation marks omitted). Accord-
ing to the Supreme Court, we can find clear error only if, "‘on
the entire evidence,’ [we are] ‘left with the definite and firm
conviction that a mistake has been committed.’" Id. (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
We have identified clear error when we have determined that,
UNITED STATES v. MANIGAN 15
"without regard to what the actual facts may be, the findings
under review . . . are not supported by substantial evidence."
Stanley v. Hejirika, 134 F.3d 629, 633 (4th Cir. 1998) (inter-
nal quotation marks omitted); see United States v. Whorley,
550 F.3d 326, 338 (4th Cir. 2008) (defining "substantial evi-
dence" as "evidence that a reasonable finder of fact could
accept as adequate and sufficient to support" the finding under
review).
Because the Government bore the burden — by a prepon-
derance — of showing that the weapon enhancement was
appropriate, see United States v. Urrego-Linares, 879 F.2d
1234, 1238 (4th Cir. 1989), we must be mindful of what that
burden entails. As the Supreme Court has explained, "[t]he
burden of showing something by a preponderance of the evi-
dence . . . simply requires the trier of fact to believe that the
existence of a fact is more probable than its nonexistence."
Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pen-
sion Trust for S. Cal., 508 U.S. 602, 622 (1993) (internal quo-
tation marks omitted).
Thus, our task in analyzing the weapon enhancement’s
applicability is somewhat comparable to the appellate review
of a jury verdict in a civil case: we must affirm if there was
substantial evidence to support the finding that it was more
probable than not that Manigan possessed the handguns
seized at 202 Charlesworth Avenue in connection with the
common scheme or plan of his drug activities. In making that
assessment, the following pertinent facts were either expressly
found by the PSR and the sentencing court, or could reason-
ably be inferred from the facts so found:
• Predicated on the large quantities of drugs that
Manigan fronted, he was a substantial drug sup-
plier in the Spartanburg area;
• Manigan resided at 202 Charlesworth Avenue,
where portions of his April and May drug trans-
16 UNITED STATES v. MANIGAN
actions occurred. And the authorities observed
Manigan travel directly from the residence to
other locations where he engaged in drug-
fronting transactions. The Charlesworth Avenue
residence was thus central to the common scheme
or plan relating to Manigan’s drug activities;
• During the search of June 20, 2007, cocaine was
seized from Manigan’s Caprice on the Charles-
worth Avenue property and the two handguns
were seized from the back right bedroom of the
residence, where his personal papers were also
found;
• The handguns were seized from a shoebox on the
right side of the bed and were thus readily acces-
sible to an occupant of the residence; and
• When Manigan was arrested on June 20, 2007, he
possessed on his person substantial quantities of
marijuana and crack cocaine, plus nearly $10,000
in cash.
The proximity — or lack thereof — between the two hand-
guns and the drugs seized from Manigan’s person and his
Caprice is the strongest contention that he can muster against
application of the weapon enhancement, and Manigan under-
standably emphasizes it. But see United States v. Hall, 473
F.3d 1295, 1312 (10th Cir. 2007) (concluding weapon was
connected to drug activities where shotgun was stored in
defendant’s car and drug paraphernalia was found in his resi-
dence); United States v. Almonte, 952 F.2d 20, 21–22 (1st Cir.
1991) (affirming application of weapon enhancement where
cocaine was stored in defendant’s residence and handgun was
seized from his store, located across street from residence).
Whether there was, in this case, sufficient proximity between
the handguns and the drugs is a factual issue, and the location
of the seized handguns, in the context of Manigan’s drug
UNITED STATES v. MANIGAN 17
activities, does not preclude the court’s application of the
weapon enhancement. See Corral, 324 F.3d at 873 ("[G]uns
found in close proximity to drug activity are presumptively
connected to that activity."). It is sufficient that the firearms
were seized from the location — 202 Charlesworth Avenue
— that was the focal point of Manigan’s drug fronting trans-
actions, and the handguns could be deemed readily accessible
to him. In addition, unlike the possession of an unloaded hunt-
ing rifle, Manigan possessed two handguns, the weapons of
choice for drug suppliers. See Ward, 171 F.3d at 195.10
Finally, Manigan was a substantial drug supplier and, as such,
was an offender who would typically possess a handgun in
connection with drug activities. See Kennedy, 32 F.3d at 882;
United States v. Hinds, 856 F.2d 438, 443 (1st Cir. 1988).
Because the PSR recitation circumstantially supports the
district court’s application of the weapon enhancement — and
because Manigan failed to show that it was "clearly improba-
ble" for the handguns to be connected to the common scheme
or plan surrounding his drug activities, see supra note 8 — the
district court was entitled to rule as it did.11 Thus, the court did
not clearly err, and Manigan’s appellate contention must be
rejected.12
10
As noted, see supra note 4, the record does not indicate whether the
handguns were loaded when they were seized. In any event, the weapon
enhancement may properly be applied for possession of an unloaded hand-
gun. See Harris, 128 F.3d at 853 ("[T]he mere fact that a weapon is
unloaded cannot prevent a court from enhancing a sentence under Section
2D1.1(b)(1).").
11
We note that the district court, in determining whether to apply the
weapon enhancement, appropriately relied on the PSR, as Manigan failed
to show that the PSR was inaccurate. See United States v. Love, 134 F.3d
595, 606 (4th Cir. 1998) ("Without an affirmative showing the information
is inaccurate, the court is free to adopt the findings of the presentence
report without more specific inquiry or explanation." (internal quotation
marks and alterations omitted)).
12
Finally, the Government argues that, if the district court erroneously
applied the weapon enhancement, such error would be harmless, as the
18 UNITED STATES v. MANIGAN
IV.
Pursuant to the foregoing, we reject the Government’s
appellate waiver contention and affirm Manigan’s sentence.
AFFIRMED
MICHAEL, Circuit Judge, concurring in part and dissenting
in part:
I concur in part III.A of the majority opinion, which holds
that Kenneth Manigan did not waive his right to appeal his
sentence. I respectfully dissent, however, from the majority’s
determination that the district court properly enhanced Mani-
gan’s sentence under guideline § 2D1.1(b)(1) for possession
of a dangerous weapon. Manigan’s handguns were not con-
nected to the drug crimes he committed, and the enhancement
should not apply.
Section 2D1.1(b)(1)’s weapon enhancement may be the
most frequently applied enhancement in all the guidelines.
See U.S. Sentencing Commission, Sourcebook of Federal
Sentencing Statistics tbl. 3 (2008) (listing § 2D1.1 as the most
frequently applied guideline); U.S. Sentencing Commission,
Application of Weapon Specific Offense Characteristic in
§2D1.1 Cases for Each Drug Type (2008) (enhancement
court ultimately calculated Manigan’s sentencing range on the basis of his
career offender status. See United States v. Branch, 537 F.3d 328, 343 (4th
Cir. 2008) (observing that weapon enhancement had no impact on
Branch’s sentence because court sentenced him as career offender). Mani-
gan maintains that application of the weapon enhancement was not harm-
less because it precludes him from participating in the Bureau of Prison’s
drug treatment program and possibly obtaining an early release, a conten-
tion that at least one circuit has apparently found persuasive. See United
States v. Torres, 409 F.3d 1000, 1002–03 (8th Cir. 2005). Because the dis-
trict court did not err in applying the weapon enhancement, however, we
need not address this assertion.
UNITED STATES v. MANIGAN 19
applied in 2,845 out of 23,637 cases). This frequency of use
makes it imperative that the boundaries for application of the
enhancement remain clear and meaningful. Here, the majori-
ty’s error is compounded by the fact that it blurs a previously
clear boundary, leaving district courts to wonder whether any
real limitation remains. To maintain clarity, we should hold to
the purpose and scope of the enhancement as recognized until
today.
Section 2D1.1(b)(1) reads: "If a dangerous weapon (includ-
ing a firearm) was possessed, increase by 2 levels." U.S. Sen-
tencing Guidelines Manual § 2D1.1(b)(1) (2007). Application
note 3 to § 2D1.1 describes the enhancement’s purpose and
reach:
The enhancement for weapon possession reflects the
increased danger of violence when drug traffickers
possess weapons. The adjustment should be applied
if the weapon was present, unless it is clearly
improbable that the weapon was connected with the
offense. For example, the enhancement would not be
applied if the defendant, arrested at his residence,
had an unloaded hunting rifle in the closet.
The application note confirms what is obvious from common
sense, but perhaps not from a literal reading of § 2D1.1(b)(1):
mere possession is not enough for application of the enhance-
ment. The majority notes this limitation, citing United States
v. McAllister’s rule that the government must prove 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." 272 F.3d 228, 233-34 (4th Cir.
2001) (emphasis added). Thus, for the enhancement to apply,
the government must prove not only that the defendant pos-
sessed the weapon, but also that the weapon had a role in the
offense of conviction. In the case of a gun, it need not have
been discharged, brandished, or even kept on the defendant’s
person during the offense, see United States v. Johnson, 943
20 UNITED STATES v. MANIGAN
F.2d 383, 386 (4th Cir. 1991), but it must have served the
defendant’s purpose in carrying out the drug crime for which
he was convicted. It is sufficient, for example, that the
weapon was "readily available to protect" the defendant or his
drugs, even if the defendant never specifically intended to use
it. United States v. Thongsophaporn, 503 F.3d 51, 58 (1st Cir.
2007).
Unless the defendant’s words or actions explained the
weapon’s role, proving that the § 2D1.1(b)(1) enhancement
applies will require evidence that the weapon had a temporal
and spatial nexus to the offense. United States v. Willie, 462
F.3d 892, 899 (8th Cir. 2006); United States v. Clark, 415
F.3d 1234, 1241 (10th Cir. 2005); United States v. Partida,
385 F.3d 546, 562 (5th Cir. 2004). When the defendant’s pos-
session of the weapon is not established until long after the
offense, the temporal nexus is not satisfied. See Clark, 415
F.3d at 1242 (rejecting application of enhancement when
defendant was found in possession of gun 15 months after
offense of conviction). Similarly, when the weapon is not in
close proximity to the drugs or a drug-related transaction, the
spatial nexus is not satisfied. See United States v. Harris, 128
F.3d 850, 852 (4th Cir. 1997). In United States v. Rusher we
held that the § 2D1.1(b)(1) enhancement applied when "one
of the firearms was located in the same briefcase that con-
tained the drugs, and the others, fully loaded, were found in
the bed of the same truck." 966 F.2d 868, 880 (4th Cir. 1992).
In United States v. Nelson we held that the enhancement
applied when guns were found with defendants in "a place of
manufacturing, storing and distributing [of] crack cocaine." 6
F.3d 1049, 1056 (4th Cir. 1993). Of course, even if a temporal
and spatial nexus exists, other evidence might establish that
it was clearly improbable that the gun had a role in the
offense. For example, even if an unloaded hunting rifle was
in a nearby closet in the defendant’s residence during a drug
transaction, the enhancement might not apply. § 2D1.1 cmt.
n.3 (2007).
UNITED STATES v. MANIGAN 21
These controlling principles prohibit the application of the
enhancement in this case because neither a temporal nor a
spatial nexus existed. The majority sees a nexus between
Manigan’s handguns and his offense because the confidential
informant gave Manigan cash for previously received drugs
outside 202 Charlesworth Avenue on April 5, 2007, and May
30, 2007. On June 20, 2007, the police executed a search war-
rant for Manigan’s car and the residence at that address.
Although the police found cocaine and drug paraphernalia in
Manigan’s car, nothing of that sort was found in the resi-
dence. The police did find two handguns belonging to Mani-
gan in a shoe box inside the house.
There is no evidence that Manigan possessed the handguns
prior to June 20, 2007, the day of the search, let alone 20 days
prior on May 30, 2007, the second (and last) day the infor-
mant paid Manigan for drugs outside the residence. There is
no suggestion that the informant ever reported that there was
a gun in Manigan’s possession during the transactions. And
the government does not claim that it had a suspicion prior to
the search that Manigan possessed guns. (Neither the search
warrant nor the application is in the record.) No evidence sup-
ports a finding that the guns Manigan possessed on June 20,
2007 — which he had received from a third party and
intended to sell — were possessed on May 30, 2007.
Similarly, even assuming Manigan possessed the guns on
May 30, 2007, they were not sufficiently close to the drug
transaction to satisfy the spatial nexus requirement. Manigan
trafficked in cocaine out of his car. Only his car is present at
every face-to-face interaction with the informant, whether
outside 202 Charlesworth Avenue or in the CVS Pharmacy
parking lot. The police found drugs in Manigan’s car, not in
the residence at 202 Charlesworth Avenue. Unlike the house
in United States v. Nelson, 202 Charlesworth Avenue was not
"a place of manufacturing, storing and distributing [of] crack
cocaine." 6 F.3d at 1056. The residence belonged to Mani-
gan’s mother, and Manigan merely lived there. The only con-
22 UNITED STATES v. MANIGAN
nection between the residence and Manigan’s offense is that
Manigan’s car was parked outside. Moreover, despite the
majority’s assertion to the contrary, it would amount to a legal
fiction to conclude that the guns were "readily available" to,
or "constructively possessed" by, Manigan during the drug
transactions. Cf. Arizona v. Gant, 129 S. Ct. 1710, 1718-19
(2009) (rejecting the "fiction . . . that the interior of a car is
always within the immediate control of an arrestee who has
recently been in the car") (quoting New York v. Belton, 453
U.S. 454, 466 (1981)) (emphasis in original). Had Manigan
conducted a transaction outside 202 Charlesworth Avenue
and been threatened with violence, keeping guns indoors and
hidden in a shoe box would not have provided him any pro-
tection. Accordingly, the absence of both a temporal and spa-
tial nexus precludes the enhancement.
The majority reaches a contrary conclusion after several
missteps, starting with the standard of review it applies. Cit-
ing Rusher, the majority states that "[t]he question of whether
a defendant, as a specific offense characteristic, possessed a
dangerous weapon . . . is a factual determination subject to
clear error review." Ante at 7. Rusher, however, says that the
general rule for reviewing a guidelines determination is a
"sliding scale" with primarily factual issues reviewed for clear
error and primarily legal issues reviewed de novo. 966 F.2d
at 880. It concludes that a finding of possession, that is, con-
trol or dominion over a weapon, is reviewed for clear error.
Id. But a finding of weapon possession is not the final step.
A determination of whether the weapon had a role in the
offense of conviction is still required. Here, pure possession,
along with the fact of the transactions themselves, is not dis-
puted. We are left to review only whether the facts in the pre-
sentence report — adopted by the district court — require
application of the enhancement. This question is primarily
legal and should be reviewed de novo.
The majority’s next error is to place disproportionate
weight — in what is a case-specific inquiry — on the general
UNITED STATES v. MANIGAN 23
ground that handguns are associated with drugs and that there
is a "settled connection between firearms and drug activities."
Ante at 12. Indeed, the majority goes so far as to say that "a
sentencing court might reasonably infer, in proper circum-
stances, that a handgun seized from the residence of a drug
trafficker was possessed in connection with his drug activi-
ties." Ante at 13. Of all the cases cited by the majority in sup-
port of the association between handguns and drugs, only one
cites any empirical evidence, and that evidence supports a
strong (and obvious) correlation between handguns and
firearm-related crimes, not drug-related crimes. See United
States v. Lipford, 203 F.3d 259, 267 n.7 (4th Cir. 2000) (citing
Department of Justice, Bureau of Justice Statistics, Selected
Findings, Firearms, Crime, and Criminal Justice: Guns Used
in Crime (July 1995)). In any event, like the "settled connec-
tion between firearms and drug activities," the connection
between handguns and drugs is a reason for the inclusion of
the weapons enhancement potential in § 2D1.1(b)(1), not a
reason for relaxing the standard for determining whether a
gun was connected to a particular drug offense. More specifi-
cally, giving sentencing courts what appears to be a green
light to apply the § 2D1.1(b)(1) enhancement to every drug
dealer with a handgun in his residence will practically elimi-
nate any limitation on the scope of the provision.
Finally, the majority errs when it concludes that the hand-
guns had a role in the offense in this case. Perhaps recogniz-
ing that the guns were not close enough to the drug
transactions to support a spatial nexus, the majority attempts
to link the 202 Charlesworth Avenue residence directly to
Manigan’s crimes. Ante at 15-16 ("[T]he Charlesworth Ave-
nue residence was . . . central to the common scheme or plan
relating to Manigan’s drug activities."). In support of this link,
the majority cites the two occasions when the informant gave
Manigan money outside the residence and the fact that "the
authorities observed Manigan travel directly from the resi-
dence to other locations where he engaged in drug-fronting
transactions." Id. Manigan had to live somewhere, and simply
24 UNITED STATES v. MANIGAN
saying that he left his residence to go to other locations to do
drug deals does not make his residence central to his drug
trafficking. It is only Manigan’s choice to accept payment
from the informant on two occasions outside his residence
that supports the argument that the residence had a "central"
role in Manigan’s drug dealings. This choice is not, however,
enough to establish a role for the residence, and therefore for
the gun, any more than Manigan’s choice to meet in a CVS
Pharmacy parking lot is sufficient to establish a role for CVS.
The majority is left only with the transactions’ relative prox-
imity to the handgun which, as I have already noted, is not
sufficient because the handguns were not close enough to be
readily available for use by Manigan.
Because I conclude that the district court erred when it
applied the enhancement, I must reach the question of
whether the error was harmless. Manigan admits that if this
court reversed the district court’s application of the enhance-
ment, his sentence would remain the same. He nevertheless
argues that application of the enhancement prejudices him
because it disqualifies him from the Bureau of Prison’s (BOP)
drug treatment program and therefore from early release. The
government responds that this should not count as prejudice
and that, in any event, the injury is hypothetical because there
is no guarantee Manigan will be admitted to BOP’s treatment
program.
The Tenth Circuit opinion in United States v. Torres per-
suades me that the district court’s error is not harmless. In
Torres the court considered and rejected the exact argument
advanced by the government here. 409 F.3d 1000, 1002-03
(10th Cir. 2005). The court reasoned that if the enhancement
barred the defendant from a shorter sentence, it was clearly
prejudicial, and the only question was whether the defendant
needed to wait until he was actually denied acceptance to the
BOP’s program to challenge the enhancement. Id. at 1002.
Because the defendant’s challenge at that point would be
through habeas corpus, and because a habeas petitioner can-
UNITED STATES v. MANIGAN 25
not challenge the execution of a sentence, denying review on
direct appeal would deny all review. Id. at 1003. I agree with
the Tenth Circuit’s reasoning and conclude that this same
prospect in Manigan’s case requires a finding of prejudice.
Because the district court erred and the error is prejudicial,
I would vacate Manigan’s sentence and remand for him to be
resentenced without the § 2D1.1(b)(1) weapon enhancement.