UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5180
ROBERT DANIEL PRINCE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CR-94-193)
Submitted: August 13, 1996
Decided: August 23, 1996
Before ERVIN, Circuit Judge, and BUTZNER and PHILLIPS,
Senior Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Preston Strom, Jr., United States
Attorney, Sean Kittrell, Assistant United States Attorney, Columbia,
South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Robert Daniel Prince was convicted of possession of a firearm by
a convicted felon, 18 U.S.C.A. §§ 922(g), 924(a) (West Supp. 1996),
and of possession of an unregistered firearm (a sawed-off shotgun),
26 U.S.C. §§ 5841, 5861(d), 5871 (1988). He appeals his 225-month
sentence, contending that the district court erred in enhancing his sen-
tence for possession of a firearm in connection with another felony.
United States Sentencing Commission, Guidelines Manual
§ 2K2.1(b)(5) (Nov. 1994). Prince has also requested leave to file a
pro se supplemental brief in which he challenges his conviction on the
ground that the district court erred in denying his motion to suppress
evidence seized in a search of his apartment. We affirm the conviction
and the sentence.
In early 1994, an arrest warrant was issued in Sumter, South Caro-
lina, for Ricky Govan after he threatened to kill his ex-girlfriend and
fired a shotgun into her bedroom, wounding another woman. The
intended victim informed police that Govan was staying with two
brothers named Prince in the Gamecock Apartments and that she had
seen him in front of Apartment 32. A car parked near that apartment
was registered to Robert Prince, and the listed address was Apartment
32. Police obtained a search warrant for the apartment which autho-
rized a search for Govan, a shotgun, and ammunition for the shotgun.
When the search warrant was executed on March 3, 1994, Govan
was not present. However, Robert Prince was sleeping in the apart-
ment; under his mattress was a bag containing 14.46 grams of mari-
juana and a loaded pistol. The officers telephoned the judge who had
issued the search warrant and obtained authorization to search for nar-
cotics and related items. Also found in the room were a sawed-off
shotgun, shotgun shells and other ammunition, two beepers, a set of
small scales, $1588 in cash hidden under the dresser, and various doc-
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uments belonging to Prince. Shortly after the search was completed,
a call came in to one of the beepers and an officer dialed the number
displayed. The caller asked, "Are you holding?" and said he would be
over in a white Chevrolet. Later a white Chevrolet drove by but did
not stop.
After being advised of his Miranda* rights, Prince stated that he
bought the marijuana the day before. He said he had received the fire-
arms as collateral for a loan and that he intended to sell the guns if
the money was not repaid. Following a suppression hearing, the dis-
trict court found that the search warrant was supported by probable
cause and that Prince's statement was voluntary. The court denied
Prince's motion to suppress the evidence seized during the search.
In his pro se supplemental brief, Prince argues that the search war-
rant was not supported by probable cause and that the expanded
search was thus also tainted. However, the evidence produced at the
suppression hearing established that when the warrant was obtained
there was good reason to believe that Ricky Govan would be found
in Prince's apartment. See Illinois v. Gates, 462 U.S. 213, 238 (1983)
(totality of circumstances test). Because the initial search warrant was
supported by probable cause, the expanded search warrant obtained
by telephone was not tainted.
Prince also asserts in his pro se brief that his statement was coerced
because Agent Blair told him a weapons charge would be brought
against his mother if he did not confess. Even assuming that such a
statement might be coercive, Prince did not make this claim in the
district court and we review it under the plain error standard. United
States v. Brewer, 1 F.3d 1430, 1434-35 (4th Cir. 1993). Defense
counsel did not contest the government's evidence that the statement
was lawfully obtained once the district court determined that the
search warrant was supported by probable cause. We cannot find that
the district court plainly erred in admitting the statement.
At Prince's sentencing hearing, the government argued that Prince
had been engaged in drug trafficking and that the firearm was present
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*Miranda v. Arizona, 384 U.S. 436 (1966).
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to protect him and his marijuana. The district court ultimately found,
by a preponderance of the evidence, that Prince possessed the pistol
in connection with the felony offense of marijuana trafficking and
enhanced his sentence accordingly. USSG § 2K2.1(b)(5). The court
based its finding on the presence of the pistol and the marijuana
together under Prince's mattress, together with the presence of the
scales, beepers, and the call from a drug customer.
Prince contends on appeal that the evidence established marijuana
possession, but not marijuana trafficking, and thus was insufficient to
show that he possessed the pistol "in connection with" another felony
offense. He argues that the phrase should be interpreted by analogy
to the phrase "in relation to" used in 18 U.S.C.A. § 924(c) (West
Supp. 1995). Some circuits have taken that approach. See United
States v. Routon, 25 F.3d 815, 818 (9th Cir. 1994); United States v.
Gomez-Arellano, 5 F.3d 464, 466-67 (10th Cir. 1993). Others have
looked to the commentary to USSG § 2D1.1(b)(1) for guidance in
interpreting the phrase when the other offense is drug trafficking. See
United States v. Condren, 18 F.3d 1190, 1196-99 (5th Cir.), cert.
denied, ___ U.S. ___, 63 U.S.L.W. 3261 (U.S. Oct. 3, 1994) (No. 93-
9610); United States v. Brewster, 1 F.3d 51, 53-54 (1st Cir. 1993);
United States v. Sanders, 990 F.2d 582, 584-85 (10th Cir.), cert.
denied, 510 U.S. 878 (1993). This court has not yet construed the
phrase "in connection with" as used in section 2K2.1; it is not defined
or explained in the guideline or the commentary.
However, we are satisfied that the enhancement was appropriate in
Prince's case. The district court's factual finding that Prince was
engaged in drug trafficking was not clearly erroneous. Under the
more lenient standard of USSG § 2D1.1, comment. (n.3), the mere
presence of a firearm during a drug trafficking offense is enough to
trigger an enhancement. Those courts which have analogized to
§ 924(c) have interpreted the phrase "in relation to" as meaning that
the firearm's presence must at least "have some purpose or effect with
respect to the drug trafficking" rather than being accidental or coinci-
dental, following Smith v. United States, 508 U.S. 223 (1993). In an
ordinary case, the connection may be that the firearm "facilitates the
offense by providing a means of protection or intimidation." Id.;
Routon, 25 F.3d at 819. The district court's finding that Prince was
engaged in drug dealing and that the firearm was connected to his
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drug dealing encompasses a finding that Prince had the weapon under
his mattress for protection or intimidation. Therefore, the enhance-
ment was not error.
The Supreme Court's holding in Bailey v. United States, ___ U.S.
___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (No. 94-7448), does not
affect our decision because USSG § 2K2.1(b)(5) permits an enhance-
ment based on possession as well as use of a firearm. See United
States v. Gary, 74 F.3d 304, 317 n.11 (1st Cir.) (Bailey inapplicable
to USSG § 4B1.4(b)(3)(A) which provides enhancement for use or
possession of firearm in connection with specified offenses because
meaning of "in connection with" remains unchanged), cert. denied,
___ U.S. ___, 64 U.S.L.W. 3855 (U.S. June 24, 1996) (No. 95-9074).
We therefore affirm the conviction and the sentence imposed by
the district court. 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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