Filed: May 17, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4608 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DENNIS FERRETTI, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:15-cr-00024-FPS-JES-2) Submitted: March 28, 2016 Decided: May 17, 2016 Before AGEE, KEENAN, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Elgine McArdle
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4608 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DENNIS FERRETTI, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:15-cr-00024-FPS-JES-2) Submitted: March 28, 2016 Decided: May 17, 2016 Before AGEE, KEENAN, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Elgine McArdle,..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4608
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS FERRETTI,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:15-cr-00024-FPS-JES-2)
Submitted: March 28, 2016 Decided: May 17, 2016
Before AGEE, KEENAN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Elgine McArdle, MCARDLE LAW OFFICES, Wheeling, West Virginia,
for Appellant. William J. Ihlenfeld, II, United States
Attorney, Jarod J. Douglas, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dennis Ferretti appeals the 46-month sentence imposed
following his guilty plea to conspiracy to distribute and
possess with intent to distribute Oxycodone, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(C), 846 (2012). On appeal, Ferretti
argues that the district court erred by applying a two-level
enhancement pursuant to U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2014) for possessing a dangerous weapon. We
affirm.
We review sentences for reasonableness, applying “a
deferential abuse-of-discretion standard.” Gall v. United
States,
552 U.S. 38, 41 (2007); see
id. at 51 (discussing
procedural reasonableness). The Sentencing Guidelines direct a
district court to increase a defendant’s offense level by two
levels “[i]f a dangerous weapon (including a firearm) was
possessed.” USSG § 2D1.1(b)(1). The dangerous weapon
enhancement applies “if the weapon was present, unless it is
clearly improbable that the weapon was connected with the
offense.”
Id. cmt. n.11(A). The defendant bears the burden of
“show[ing] that a connection between his possession of a firearm
and his narcotic offense is clearly improbable.” United States
v. Slade,
631 F.3d 185, 189 (4th Cir. 2011) (internal quotation
marks omitted); United States v. Manigan,
592 F.3d 621, 629 (4th
Cir. 2010) (discussing factors courts consider in applying
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weapon enhancement). “We review the district court’s legal
conclusions de novo and its factual findings for clear error.”
United States v. Gomez-Jimenez,
750 F.3d 370, 380 (4th Cir.)
(internal quotation marks omitted), cert. denied,
135 S. Ct. 384
(2014).
Ferretti argues that there is no evidence that he possessed
the gun on which the enhancement was based for his protection
during the conspiracy. He relies on the fact that he possessed
the gun pursuant to a valid concealed carry permit and that he
did not carry it during a traffic stop in which drugs were
seized or after he stole money and drugs from his
coconspirator’s residence. We conclude that the district court
did not err when it applied the § 2D1.1(b)(1) enhancement.
Ferretti kept the handgun in close proximity to the drugs and
cash proceeds from the sales, and, thus, the gun was readily
available should the need arise to use it to protect either the
drugs or cash. See
Manigan, 592 F.3d at 629 (“[F]irearms that
are readily accessible during drug activities can be deemed as
possessed in connection there-with.”). Moreover, the fact that
Ferretti possessed the firearm pursuant to a valid concealed
carry permit does not mean that he did not also possess the gun
in connection with the drug conspiracy. See United States v.
Carlson,
810 F.3d 544, 557 (8th Cir. 2016), petition for cert.
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filed, __ U.S.L.W. __ (U.S. Mar. 9, 2016) (No. 15-1136); United
States v. Trujillo,
146 F.3d 838, 847 (11th Cir. 1998).
Accordingly, we 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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