Filed: Mar. 03, 2006
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4245 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus VALERIE CHARLEY, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Margaret B. Seymour, District Judge. (CR-03-558-MBS) Submitted: December 12, 2005 Decided: March 3, 2006 Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Kathe
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4245 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus VALERIE CHARLEY, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Margaret B. Seymour, District Judge. (CR-03-558-MBS) Submitted: December 12, 2005 Decided: March 3, 2006 Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Kather..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4245
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VALERIE CHARLEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (CR-03-558-MBS)
Submitted: December 12, 2005 Decided: March 3, 2006
Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, William K. Witherspoon, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Valerie Charley appeals her guilty-plea conviction and
sentence for conspiracy to possess with intent to distribute more
than five grams of cocaine base, in violation of 21 U.S.C. § 846
(2000).
Charley asserts that the district court’s application of
a two-level enhancement under U.S. Sentencing Guidelines Manual
§ 2D1.1 resulted in a sentence that exceeded the maximum term
authorized by the facts established in her plea agreement, in
violation of Blakely v. Washington,
542 U.S. 296 (2004), and United
States v. Booker,
543 U.S. 220 (2005). Although the two-level
enhancement for use of a firearm was based upon facts found by the
judge and not admitted to by Charley, we conclude that Charley
suffered no Sixth Amendment violation. See United States v. Evans,
416 F.3d 298, 300-01 (4th Cir. 2005) (noting that, in determining
whether Sixth Amendment error occurred, sentence imposed must be
compared to permissible guideline range before adjusting for
acceptance of responsibility).
Charley also contends that the district court erred by
applying the firearm enhancement to her sentence because it was
clearly improbable that the firearm was connected to the drug
offense. The district court’s enhancement under § 2D1.1(b)(1) is
reviewed for clear error. United States v. McAllister,
272 F.3d
228, 234 (4th Cir. 2001). Under the guidelines, a defendant’s
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offense level must be increased by two under U.S.S.G. § 2D1.1(b)(1)
if a dangerous weapon was possessed during the offense. This
“adjustment should be applied if the weapon was present, unless it
is clearly improbable that the weapon was connected with the
offense.” U.S.S.G. § 2D1.1(b)(1) comment. (n.3). The Government
need not establish a perfect connection between the possession of
the firearm and the commission of the drug offense before the
enhancement may be applied. See McAllister, 272 F.3d at 234 (“In
order to prove that a weapon was present, the Government need show
only that the weapon was possessed during the relevant illegal drug
activity.”). Evidence of firearms in proximity to illegal drugs
can support a conclusion that the firearms were possessed during
the commission of the drug offense. See United States v. Harris,
128 F.3d 850, 852 (4th Cir. 1997) (noting that the test requires
nothing more than that the guns be located in the same place where
drugs are stored or distributed).
Here, it is undisputed that Charley distributed cocaine
base from her residence. Moreover, it is also undisputed that in
executing a search warrant, police recovered a firearm from
Charley’s residence. On these facts we cannot say that the
district court committed clear error in applying the firearm
enhancement to Charley. Harris, 128 F.3d at 852.
For the reasons set forth above, we affirm Charley’s
conviction and sentence. We dispense with oral argument because
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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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