UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4873
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID LEE KIDD, II,
Defendant - Appellant.
No. 12-4874
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID L. KIDD, II,
Defendant – Appellant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:11-cr-00017-FPS-JES-1; 5:12-cr-
00014-FPS-1)
Submitted: May 30, 2013 Decided: June 6, 2013
Before GREGORY, SHEDD, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia; Kristen M. Leddy, Research and Writing
Specialist, Martinsburg, West Virginia, for Appellant. William
J. Ihlenfeld, II, United States Attorney, John C. Parr,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
David Lee Kidd pled guilty to conspiracy to distribute
Schedule II controlled substances, 21 U.S.C. § 846 (2006),
conspiracy to commit money laundering, 18 U.S.C.A. § 1956(h)
(West Supp. 2013), and contempt, 18 U.S.C. § 402 (2006). He was
sentenced to a term of 262 months’ imprisonment. Kidd appeals
his sentence, contending that the district court clearly erred
when it found that he possessed a firearm during a drug offense. *
U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2011). We
affirm.
Kidd was one of the leaders in a conspiracy that
obtained oxycodone and other prescription medications from pain
clinics in Florida and sold them in West Virginia and eastern
Ohio in 2010 and 2011. The conspiracy involved a large number
of conspirators who engaged in buying pills, distributing pills,
collecting money from distributors, and laundering profits,
often at casinos. In March 2011, Kidd and his lieutenant, Chris
Grigg, were stopped for speeding near Orlando, Florida, and were
found to be in possession of over 6000 oxycodone pills, 294
Xanax pills, and over $13,500 in cash. Search warrants were
subsequently executed at properties occupied by Kidd in Martins
*
Although the cases are consolidated for appeal, Kidd
raises no issue with respect to his contempt conviction.
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Ferry, Ohio, and Grigg in Bridgeport, Ohio. From a safe in
Grigg’s residence, law enforcement officers seized 279 oxycodone
pills, about $3000 in cash, and six firearms. From a safe in
Kidd’s residence, they seized 1551 oxycodone pills, over $43,000
in cash, and a loaded Harrington and Richardson .32 caliber
revolver, as well as ledgers showing money owed to him by co-
conspirators and two CDs of MRIs used by conspirators to doctor-
shop in Florida. In August 2011, Kidd was released on bond. He
absconded and was apprehended almost two weeks later in
Oklahoma, which resulted in a separate charge of contempt.
Kidd objected in the district court to the two-level
increase recommended in the presentence report for possession of
a firearm during the offense. He asserted that he obtained the
gun from a friend for target practice and put it in the safe
after it jammed. At the sentencing hearing, Drug Enforcement
Agent Robert Manchas testified for the government about the
investigation, Kidd’s arrest, and finding the gun in Kidd’s
safe. Defense counsel argued that, because the safe was a large
one and the contents had fallen off the shelves when it was
moved, it was unclear whether the gun was in close proximity to
the drugs and cash within the safe before the safe was moved.
Counsel argued that the loaded gun might have been in the safe
without having any relation to the evidence of drug trafficking
also kept in the safe.
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The district court found that the dangerous weapon
enhancement was applicable. The court found that the safe was
not comparable to a large closet and that the gun was kept in
close proximity to drugs, cash, MRIs used in the conspiracy, and
ledgers showing amounts of money owed to Kidd for drugs fronted
to others. The court determined that it was not clearly
improbable that the gun was connected to the offense, and was
instead probable or likely that the gun was connected to the
offense.
Sentences are reviewed for procedural and substantive
reasonableness under an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). Miscalculation of the
Guidelines range is a significant procedural error. Id. A two-
level increase is authorized under USSG § 2D1.1(b)(1) if “a
dangerous weapon (including a firearm) was possessed” during the
commission of the offense of conviction, “unless it is clearly
improbable that the weapon was connected to the offense.”
United States v. Slade, 631 F.3d 185, 188 (4th Cir. 2011)
(quoting USSG § 2D1.1 cmt. n.3). “[P]ossession of the weapon
during the commission of the offense is all that is needed to
invoke the enhancement.” United States v. Harris, 128 F.3d 850,
852 (4th Cir. 1997). The defendant has the burden of showing
that a connection between his possession of a firearm and his
drug offense is “clearly improbable.” Slade, 631 F.3d at 189.
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We conclude that the district court’s factual finding
that Kidd possessed a dangerous weapon during the offense, which
we review for clear error, United States v. McAllister, 272 F.3d
228, 234 (4th Cir. 2001), is not clearly erroneous. Kidd’s
argument to the contrary is not persuasive. United States v.
Manigan, 592 F.3d 621, 629 (4th Cir. 2010). The district court
did not clearly err in finding that the government met its
burden of proof and that Kidd failed to establish that his
possession of a firearm during his drug trafficking was clearly
improbable.
We therefore affirm the district court’s judgment. 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 the decisional process.
AFFIRMED
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