UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4321
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO DONTA KEITT,
Defendant - Appellant.
No. 15-4461
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TREMAINE ANTWAUN BROWN,
Defendant - Appellant.
Appeals from the United States District Court for the Middle of
North Carolina, at Greensboro. William L. Osteen, Jr., Chief
District Judge, Catherine C. Eagles, District Judge. (1:14-cr-
00285-WO-4, 1:14-cr-00285-CCE-1)
Submitted: March 30, 2016 Decided: April 25, 2016
Before MOTZ, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sue Genrich Berry, BOWEN & BERRY, PLLC, Lumberton, North
Carolina; Raymond C. Tarlton, TARLTON LAW PLLC, Raleigh, North
Carolina, for Appellants. Ripley Rand, United States Attorney,
Graham Tod Green, Michael Francis Joseph, Assistant United
States Attorneys, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Antonio Donta Keitt and Tremaine Antwaun Brown pled guilty,
pursuant to written plea agreements, to the following: (1)
Keitt pled guilty to conspiracy to distribute cocaine base and
distributing and possessing with intent to distribute cocaine
base, 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846 (Counts 1 and 16);
(2) Brown pled guilty to conspiracy to distribute cocaine base
and possession of a firearm in furtherance of a drug trafficking
offense, 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C.
§ 924(c)(1)(A)(i) (Counts 1 and 21).
Keitt was sentenced to 144 months on each count, to run
concurrently. Brown was sentenced to a total term of 204
months’ imprisonment. They appeal and have filed a joint brief.
Keitt asserts that the district court plainly erred in applying
a two-level sentencing enhancement for maintaining a premises
for the purpose of distributing a controlled substance, U.S.
Sentencing Guidelines Manual (USSG) § 2D1.1(b)(12), and erred in
applying the two-level firearm enhancement, id. § 2D1.1(b)(1).
Brown argues that the factual basis was insufficient to support
his guilty plea to the firearm offense. * Finding no error, we
affirm.
*We note that, although Brown’s plea agreement contains an
appellate waiver provision, the Government has not unequivocally
asserted the waiver. Accordingly, we will not sua sponte apply
(Continued)
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No. 15-4321. Keitt raises two issues regarding his
sentence. His first claim—that the district court erroneously
applied the two-level enhancement under USSG § 2D1.1(b)(12)—is
reviewed for plain error as he did not challenge the enhancement
in the district court. To satisfy the plain error standard,
Keitt must show (1) an error; (2) that is plain; (3) that
affects substantial rights; and (4) that seriously affects the
fairness, integrity or public reputation of judicial
proceedings. United States v. Webb, 738 F.3d 638, 640-41 (4th
Cir. 2013). Keitt cannot meet this standard.
The Guidelines provide that “[i]f the defendant maintained
a premises for the purpose of manufacturing or distributing a
controlled substance, increase [the sentence] by 2 levels.”
USSG § 2D1.1(b)(12). According to the Guidelines commentary,
“[a]mong the factors the court should consider in determining
whether the defendant maintained the premises are (A) whether
the defendant held a possessory interest in (e.g., owned or
rented) the premises and (B) the extent to which the defendant
controlled access to, or activities at, the premises.” Id. §
2D1.1 cmt. n.17. “Manufacturing or distributing a controlled
the waiver. See United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005).
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substance need not be the sole purpose for which the premises
were maintained, but must be one of the defendant’s primary or
principal uses for the premises.” Id.
Keitt does not dispute that the controlled purchases were
made at his residence. Moreover, a search of the residence
after the controlled purchases resulted in the seizure of
fifteen ounces of cocaine base and $5600 in cash. There are
also statements in the record from witnesses detailing drug
activity at Keitt’s residence, including a statement that
Keitt’s residence was a known “crack house.” On these facts,
Keitt cannot establish that the application of the §
2D1.1(b)(12) enhancement constituted plain error affecting his
substantial rights.
Next, Keitt asserts that the district court improperly
applied the two-level Guidelines enhancement for possession of a
firearm. We review application of the § 2D1.1(b)(1) enhancement
for clear error. United States v. Manigan, 592 F.3d 621, 630–31
(4th Cir. 2010). In order for the enhancement to apply, “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.” Id. at 628–29 (internal quotation marks
omitted). “[P]roof of constructive possession of the [firearm]
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is sufficient, and the Government is entitled to rely on
circumstantial evidence to carry its burden.” Id. If the
Government carries its burden, “[t]he enhancement should be
applied . . . unless it is clearly improbable that the weapon
was connected with the offense.” USSG § 2D1.1 cmt. n.11(A). The
defendant bears the burden of establishing such a clear
improbability. United States v. Slade, 631 F.3d 185, 189 (4th
Cir. 2011). Keitt cannot make this showing.
In addition to a co-conspirator’s testimony that he saw
Keitt in possession of a firearm, other witnesses provided
statements that there was widespread possession of firearms
among members of the conspiracy. Thus, the district court did
not clearly err in finding that possession of firearms by other
conspirators was foreseeable to Keitt. See United States v.
Kimberlin, 18 F.3d 1156, 1160 (4th Cir. 1994) (upholding firearm
enhancement where possession by co-conspirators was reasonably
foreseeable to defendant).
No. 15-4461. Brown’s only claim on appeal is that the
amended factual basis presented by the Government was
insufficient to support his conviction under 18 U.S.C. § 924(c)
for possession of a firearm in furtherance of a drug trafficking
offense. Brown did not challenge the factual basis during his
Rule 11 hearing, other than to note his disagreement with being
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characterized as a leader or organizer of the conspiracy.
Therefore, review is for plain error. United States v.
Mastrapa, 509 F.3d 652, 656–57 (4th Cir. 2007).
Under 18 U.S.C. § 924(c), the Government was required to
show that Brown knowingly and unlawfully possessed a firearm in
furtherance of the specified drug trafficking crime. See United
States v. Moore, 769 F.3d 264, 269-70 (4th Cir. 2014)
(identifying elements and standard of review), cert. denied, 135
S. Ct. 1463 (2015). In other words, Ҥ 924(c) requires the
government to present evidence indicating that the possession of
a firearm furthered, advanced, or helped forward a drug
trafficking crime.” United States v. Lomax, 293 F.3d 701, 705
(4th Cir. 2002).
The evidence presented in the amended factual basis was
sufficient to establish the necessary elements to support
Brown’s conviction on the § 924(c) count. The amended factual
basis included statements from a witness that Brown “always had
a gun” for protection in case “Somebody roll up on me it’s a
done deal.” J.A. 147. In addition, the amended factual basis
stated that “[c]ooperating witnesses indicate that during the
conspiracy [Brown and other named conspirators] were in
possession of firearms.” J.A. 144. The district court’s
reliance on these facts was not plainly erroneous.
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Accordingly, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid in
the decisional process.
AFFIRMED
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