UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4045
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTONIO J. WHITEHEAD, a/k/a T.O.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:09-cr-00099-4)
Submitted: September 16, 2011 Decided: October 7, 2011
Before WILKINSON, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sebastian M. Joy, CURTIS LEGAL SERVICES, PSC, Ashland, Kentucky,
for Appellant. R. Booth Goodwin II, United States Attorney, J.
Christopher Krivonyak, Assistant United States Attorney,
Rosemary Logan, Third Year Law Student, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio J. Whitehead appeals from the 108-month
sentence imposed pursuant to his guilty plea to conspiracy to
possess with intent to distribute cocaine base. On appeal, he
challenges the district court’s denial of his request for a
minor role reduction and the court’s enhancement of his advisory
Guidelines range for possession of a firearm. We affirm.
Whitehead first asserts that, since he was not a
manager or supervisor, he was entitled to a minor participant
role reduction. Further, he claims that his conduct was not
essential to the conspiracy because he joined the conspiracy
after it began.
A defendant who is only a “minor participant” in a
criminal activity may have his offense level reduced by two
levels. U.S. Sentencing Guidelines Manual § 3B1.2(b) (2010).
This applies to a defendant who is “substantially less culpable
than the average participant,” “but whose role could not be
described as minimal.” USSG § 3B1.2(b), comment. (n. 3(A) &
n.5). In deciding whether the defendant played a minor role,
the “critical inquiry is thus not just whether the defendant has
done fewer bad acts than his co-defendants, but whether the
defendant’s conduct is material or essential to committing the
offense.” United States v. Pratt, 239 F.3d 640, 646 (4th Cir.
2001). The defendant has the burden of showing by a
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preponderance of the evidence that he played a minor role in the
offense. United States v. Akinkoye, 185 F.3d 192, 202 (4th Cir.
1999). When reviewing the district court’s application of the
Sentencing Guidelines, we review findings of fact for clear
error. United States v. Green, 436 F.3d 449, 456 (4th Cir.
2006).
Whitehead stipulated that he sold cocaine base as part
of his participation in the conspiracy. As such, Whitehead’s
conduct does not warrant a reduction under USSG § 3B1.2. See
United States v. Brooks, 957 F.2d 1138, 1149 (4th Cir. 1992) (A
seller holds “a central position in a drug distribution
conspiracy,” even if he participated in the conspiracy for a
relatively brief period of time.); see also United States v.
Glasco, 917 F.2d 797, 800 (4th Cir. 1990) (holding that an
“actual seller of drugs” is not entitled to role reduction);
United States v. Daughtrey, 874 F.2d 213, 218-19 (4th Cir. 1989)
(recognizing that simply because a criminal conspiracy
participant does not conceive of the conspiracy does not mean
that he should be assigned a minor role adjustment if he helped
to implement it). Moreover, the mere fact that Whitehead was
not a manager or supervisor does not entitle him to a mitigating
role reduction. Accordingly, this claim is without merit.
Whitehead next argues that the firearm for which he
was found responsible was not connected to the drugs found on
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his person and, even if it was, neither the drugs nor the
firearm were connected to the subject conspiracy. The question
of whether a defendant possessed a firearm during the commission
of a drug conspiracy is a factual determination subject to the
clearly erroneous standard. United State v. Rusher, 966 F.2d
868, 880 (4th Cir. 1992).
The Guidelines instruct that “[t]he 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.”
USSG § 2D1.1 comment. (n.3). We have found possession for
purposes of the enhancement when a handgun and drugs were
located in the same house, United States v. Nelson, 6 F.3d 1049,
1056 (4th Cir. 1993), overruled on other grounds by Bailey v.
United States, 516 U.S. 137 (1995); and where a handgun and
drugs were found in the same briefcase, Rusher, 966 F.2d at
880-81. See also United States v. Harris, 128 F.3d 850, 853
(4th Cir. 1997) (unloaded firearm found in same dresser as
drugs).
In this case, Whitehead was found in possession of a
firearm, as well as a large quantity of drugs and cash. In
fact, all of the items were found on his person. There was no
dispute that Whitehead and his co-conspirators sold drugs during
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the course of the conspiracy and that the subject arrest was
during the time period of the stipulated conspiracy. When
circumstantial evidence supports the enhancement and the
defendant fails to produce evidence to show either that the
presentence report is incorrect or that it was clearly
improbable that the firearm was connected to the drug
activities, the district court is entitled to apply the
enhancement. See United States v. Manigan, 592 F.3d 621, 632
(4th Cir. 2010). Given the proximity of the drugs and the
loaded gun and the timing of the criminal behavior, the district
court’s conclusions that the possession of the firearm and drugs
were related and were part of Whitehead’s involvement in the
subject conspiracy were not clearly erroneous.
Accordingly, we affirm Whitehead’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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