UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5066
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAWN KEARNS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. Irene C. Berger,
District Judge. (1:10-cr-00014-1)
Submitted: May 11, 2011 Decided: May 20, 2011
Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant.
R. Booth Goodwin II, United States Attorney, Miller Bushong,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Kearns pled guilty to distributing hydromorphone
(dilaudid) in violation of 21 U.S.C.A. § 841(a), (b)(1)(C) (West
1999 & Supp. 2010), and was sentenced to a term of thirty-eight
months’ imprisonment. Kearns appeals his sentence, contending
that the district court clearly erred in applying a two-level
increase for possession of a dangerous weapon during the
offense. U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)
(2009). We affirm.
In October 2009, Kearns sold dilaudid to a
confidential informant on three occasions. The first two sales
occurred at his apartment. After the last sale, a search
warrant was executed at his apartment. The investigators seized
$1119 in cash, of which $100 was marked currency used in one of
the controlled drug buys, and two loaded handguns, one found
under the living room sofa and the other under the pillow in the
master bedroom. They also found a small amount of marijuana and
three small marijuana plants. Kearns cooperated immediately.
He told the investigators that he had the firearms solely for
protection because of a break-in at his girlfriend’s apartment.
At sentencing, the district court accepted Kearns’ assertion
that the marijuana was for his personal use, rather than for
sale, but found that it was not clearly improbable that the
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firearms were connected with his drug sales, two of which were
conducted in the apartment.
A two-level increase is authorized under § 2D1.1(b)(1)
if the defendant possessed a dangerous weapon during the
offense. Application Note 3 to § 2D1.1 explains that the
enhancement “should be applied if the weapon was present, unless
it is clearly improbable that the weapon was connected with the
offense.” The district court’s factual finding that Kearns
possessed a dangerous weapon during the offense is reviewed for
clear error. United States v. McAllister, 272 F.3d 228, 234
(4th Cir. 2001). The government “need only show that the weapon
was present during the relevant illegal drug activity.” Id.
Based on the evidence presented, the district court did not
clearly err in finding that the enhancement applied. To the
extent that Kearns seeks to bolster his claim of error by
reference to District of Columbia v. Heller, 554 U.S. 570
(2008) (Second Amendment confers individual right to keep and
bear arms), and United States v. Norris, 277 F.Supp. 2d 189
(E.D.N.Y. 2003) (finding weapon enhancement inapplicable), we
conclude that neither decision is helpful to him.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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