UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5833
FREDERICK SHULER, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Richard C. Erwin, Senior District Judge.
(CR-95-129)
Submitted: August 22, 1996
Decided: September 12, 1996
Before RUSSELL, HALL, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
D. Thomas Lambeth, Jr., HEMRIC, LAMBETH & CHAMPION,
P.A., Burlington, North Carolina, for Appellant. Walter C. Holton, Jr.,
United States Attorney, Robert M. Hamilton, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Frederick Shuler, III, pled guilty to two counts of possession of
crack cocaine with intent to distribute and one count of possession of
powder cocaine with intent to distribute, 21 U.S.C.A. § 841 (West
1981 & Supp. 1996). He appeals his 108-month sentence alleging that
the district court clearly erred in enhancing his sentence for posses-
sion of a firearm. United States Sentencing Commission, Guidelines
Manual, § 2D1.1(b)(1) (Nov. 1994). We affirm.
Shuler sold crack to an undercover agent on two occasions. A third
transaction for powder cocaine was arranged and Shuler was arrested
when he arrived to make the sale. Shuler's girlfriend subsequently
consented to a search of the apartment they shared. In the apartment,
investigators found 32.7 grams of powder cocaine and 22.9 grams of
crack in the bathroom. On the sofa in the living room was a loaded
semi-automatic Glock pistol with a laser sight.
A two-level enhancement is made when a firearm or other danger-
ous weapon is possessed during a drug offense, USSG§ 2D1.1(b)(1),
or in preparation for it. USSG § 1B1.3(a). The enhancement is appro-
priate if the weapon is present unless the evidence shows that it is
clearly improbable that the weapon was connected to the offense.
USSG § 2D1.1, comment. (n.3). Whether a firearm is present in the
sense which justifies an enhancement is a factual question reviewed
under the clearly erroneous standard. United States v. Apple, 915 F.2d
899, 914 (4th Cir. 1990).
Shuler objected to the probation officer's recommendation that the
enhancement be made, but he presented no evidence at the sentencing
hearing on which the district court could have made a finding that the
weapon was not connected to the offense.* Because the firearm was
present in his apartment with drugs which he intended to distribute,
the district court did not clearly err in making the enhancement.
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*Defense counsel proffered that Shuler bought the gun for his girl-
friend's protection. However, neither Shuler nor his girlfriend, who was
present at the sentencing hearing, testified about the matter.
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We therefore affirm the 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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