United States v. Brian Dixon ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4755
BRIAN KEITH DIXON, a/k/a Gangster,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CR-97-40)
Submitted: March 9, 1999
Decided: May 21, 1999
Before ERVIN, NIEMEYER, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Michael T. Hemenway, Charlottesville, Virginia, for Appellant. Rob-
ert P. Crouch, Jr., United States Attorney, Bruce A. Pagel, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Brian Keith Dixon appeals his sentence for conspiracy to possess
with intent to distribute cocaine base in violation of 21 U.S.C. § 846(1994). His sole claim on appeal is that the district court erred in
enhancing his base offense level for possession of a firearm during
the conspiracy pursuant to United States Sentencing Guidelines
Manual § 2D1.1(b)(1) (1998). Finding no merit to his claim, we
affirm.
The government has the burden of proving sentencing factors by
a preponderance of the evidence. See United States v. Estrada, 42
F.3d 228, 231 (4th Cir. 1994). In proving these factors, the govern-
ment may rely upon information found in a defendant's presentence
report unless the defendant affirmatively shows that such information
is inaccurate or unreliable. See United States v. Gilliam, 987 F.2d
1009, 1014 (4th Cir. 1993); United States v. Terry, 916 F.2d 157, 162
(4th Cir. 1990). The defendant maintains the burden of showing the
inaccuracy and unreliability of the presentence report even if the chal-
lenged evidence consists of nothing more than uncorroborated hear-
say testimony. See United States v. Love, 134 F.3d 595, 607 (4th Cir.)
cert. denied sub nom. Sheppard v. United States, 66 U.S.L.W. 3790(U.S., June 15, 1998) (No. 97-9085); Terry, 916 F.2d at 160-62. This
court reviews the district court's findings on sentencing factors for
clear error. United States v. McDonald, 61 F.3d 248, 255 (4th Cir.
1995).
Dixon asserts that the evidence was insufficient to connect his use
of a weapon to the conspiracy. Dixon's presentence report recom-
mended the § 2D1.1(b)(1) enhancement based on testimony from one
of Dixon's co-defendants that Dixon carried a gun during the course
of the conspiracy. Although Dixon attempted to demonstrate the unre-
liability of the co-defendant's testimony by eliciting from the proba-
tion officer that he did not personally witness the testimony, Dixon
presented no affirmative evidence undermining the reliability of the
presentence report and never maintained that he did not possess a gun
in connection with the conspiracy. Accordingly, we find no error in
the district court's reliance on Dixon's presentence report to find that
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Dixon carried a gun in connection with the drug distribution conspir-
acy and thus deserved the § 2D1.1(b)(1) firearm enhancement.
We therefore affirm Dixon's sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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