UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4670
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK DONNELL MABRY, a/k/a Mayberry,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:12-cr-00275-D-1)
Submitted: May 29, 2014 Decided: June 16, 2014
Before NIEMEYER and KING, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Terry F. Rose, Smithfield, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Donnell Mabry appeals from his 258-month
sentence. He asserts that the district court erred in applying
an enhancement under U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2012), for possession of a firearm in connection
with drug activity. We affirm.
The firearms in question were recovered from a storage
unit rented by Mabry’s co-conspirator. Mabry argues that the
district court erred in applying the enhancement under USSG
§ 2D1.1(b)(1), because there was insufficient evidence that he
possessed the firearms or that the firearms were connected to
the drug activity for which he was convicted. In assessing a
challenge to the district court’s application of the Guidelines,
we review the district court’s factual findings for clear error
and its legal conclusions de novo. United States v. Alvarado
Perez, 609 F.3d 609, 612 (4th Cir. 2010).
Section 2D1.1(b)(1) of the Guidelines directs a
district court to increase a defendant’s offense level by two
levels “[i]f a dangerous weapon (including a firearm) was
possessed.” The enhancement is proper when the weapon at issue
“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. Manigan, 592 F.3d 621, 628-29
(4th Cir. 2010) (internal quotation marks omitted), even in the
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absence of “proof of precisely concurrent acts, for example, gun
in hand while in the act of storing drugs, drugs in hand while
in the act of retrieving a gun.” United States v. Harris,
128 F.3d 850, 852 (4th Cir. 1997) (internal quotation marks
omitted). “[P]roof of constructive possession of the [firearm]
is sufficient, and the Government is entitled to rely on
circumstantial evidence to carry its burden.” Manigan, 592 F.3d
at 629. The defendant bears the burden to show that a
connection between his possession of a firearm and his narcotics
offense is “clearly improbable.” Harris, 128 F.3d at 852-53.
Without citing any case law, Mabry argues that it is
insufficient under USSG § 2D1.1(b)(1) to show that it was
reasonably foreseeable to Mabry that his co-conspirator would
possess the firearms. Instead, Mabry avers that it is necessary
to show that he himself possessed a weapon in connection with
his drug activity. However, Mabry is mistaken.
We have held that weapons possessed by a member of a
conspiracy are attributable to a co-conspirator when, “under the
circumstances of the case, it was fair to say that it was
reasonably foreseeable to defendant that his co-participant was
in possession of a firearm.” United States v. Kimberlin, 18
F.3d 1156, 1159-60 (4th Cir. 1994) (internal quotation marks and
alteration omitted) (upholding application of enhancement under
USSG § 2D1.1(b) based on co-conspirator’s possession of the
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firearm). Moreover, a co-conspirator’s possession of a
dangerous weapon is foreseeable when “their collaborative
criminal venture includes an exchange of controlled substances
for a large amount of cash.” United States v. Gomez-Jiminez, __
F.3d __, 2014 WL 1623072, at *8 (4th Cir. Apr. 29, 2014). Given
Mabry’s admitted conspiracy, his close relationship with his
co-conspirator, their joint and frequent trips to the storage
units, and the large scope of their drug activity, it was
“fairly inferable that [his] codefendant’s possession of [the
firearms] [was] foreseeable to [him].” Kimberlin, 18 F.3d at
1160 (internal quotation marks omitted).
In fact, Mabry does not dispute either that his
co-conspirator possessed firearms or that the co-conspirator’s
possession was foreseeable. He does, however, argue that there
was no evidence that either he or his co-conspirator used the
firearms in any drug transaction or that the firearms were
readily available during a drug transaction. Nonetheless, Mabry
has failed to present an argument that the connection between
the firearms and the drug conspiracy was “clearly improbable,”
and “[t]here is nothing in the record to suggest that the
weapons were unconnected to the offense.” See Gomez-Jiminez,
2014 WL 1623072, at *8-9. Moreover, the record supports the
connection: Mabry and his co-conspirator participated in a large
scale drug conspiracy; the firearms (assault weapons) were in a
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storage unit, visited almost daily by Mabry and his
co-conspirator; another storage unit, containing ammunition for
the firearms, also housed cash, drug paraphernalia, and heroin;
finally, three assault weapons were found near two sets of body
armor, indicating a offensive capacity and tangible preparation
for a defense of themselves and the drug proceeds. As such, we
find that the court’s factual finding that the weapons were
connected to the drug trafficking conspiracy was not error.
Accordingly, we affirm Mabry’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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