United States v. Sutherland , 386 F. App'x 393 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4818
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BLAINE VIRL SUTHERLAND, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:08-cr-00035-RLV-DCK-1)
Submitted: June 4, 2010 Decided: July 6, 2010
Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
R. Deke Falls, BARNETT & FALLS, Charlotte, North Carolina, for
Appellant. Edward R. Ryan, United States Attorney, Mark A.
Jones, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Blaine Virl Sutherland, Jr.,
was found guilty of knowingly and intentionally manufacturing
marijuana and possessing marijuana with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2006). Although
Sutherland was also charged with using and possessing firearms
in furtherance of these drug trafficking offenses, in violation
of 18 U.S.C. § 924(c) (2006), he was found not guilty of that
offense. Sutherland was sentenced to thirty-three months’
imprisonment, four years’ supervised release, and a $25,000
fine.
On appeal, Sutherland first argues the district court
committed clear error in denying his motion to suppress the
evidence seized from his property. This court reviews the
district court’s factual findings underlying a motion to
suppress for clear error. United States v. Day, 591 F.3d 679,
682 (4th Cir. 2010). We afford the district court’s credibility
determinations due deference, because “it is the role of the
district court to observe witnesses and weigh their credibility
during a pre-trial motion to suppress.” United States v. Abu
Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal quotation marks
omitted), cert. denied, 129 S. Ct. 1312 (2009).
We have carefully reviewed the transcript of the
hearing on Sutherland’s motion and we find that, taken in the
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light most favorable to the Government, see United States v.
Matthews, 591 F.3d 230, 234 (4th Cir. 2009), petition for cert.
filed, __ U.S.L.W. __ (U.S. Apr. 23, 2010) (No. 09-10414), the
evidence adduced at the hearing amply supports the district
court’s ruling. Accordingly, we affirm the denial of
Sutherland’s motion to suppress.
Sutherland next argues the district court clearly
erred in enhancing his sentence pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 2D1.1(b)(1) (2008). This guideline
provides for a two-level increase to a defendant’s base offense
level for a narcotics offense “[i]f a dangerous weapon
(including a firearm) was possessed.” USSG § 2D1.1(b)(1). “The
adjustment should be applied if the weapon was present, unless
it is clearly improbable that the weapon was connected with the
offense.” Id. at comment. (n.3) (emphasis added). Whether the
district court properly applied the USSG § 2D1.1(b)(1)
enhancement is reviewed for clear error. United States v.
McAllister, 272 F.3d 228, 234 (4th Cir. 2001).
We find no clear error here. We have held that the
proximity of weapons to illicit narcotics is sufficient to
warrant the USSG § 2D1.1(b)(1) enhancement. United States v.
Harris, 128 F.3d 850, 852 (4th Cir. 1997). In this case, it is
undisputed that two firearms — one of which was loaded — were
seized from the garage in which Sutherland was cultivating
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marijuana. Under these circumstances, we find the district
court properly applied the § 2D1.1(b)(1) enhancement, see id.,
as it was not “clearly improbable” that the firearms were
connected to Sutherland’s marijuana offenses.
For the foregoing reasons, 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 the court and argument would not aid the
decisional process.
AFFIRMED
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