United States v. Augustin , 102 F. App'x 771 ( 2004 )

Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4061
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS AUGUSTIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. H. Brent McKnight,
District Judge. (CR-02-208)
Submitted: June 24, 2004 Decided: June 29, 2004
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard F. Della Fera, ENTIN, DELLA FERA & GREENBERG, P.A., Fort
Lauderdale, Florida, for Appellant. Robert J. Conrad, Jr., United
States Attorney, Keith M. Cave, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thomas Augustin pled guilty to possession of fifty grams
or more of cocaine base (crack) and 500 grams or more of cocaine
with intent to distribute, 21 U.S.C. § 841(a) (2000), and was
sentenced to a term of 210 months imprisonment. Augustin
challenges his sentence, alleging that the district court clearly
erred in finding that he possessed a firearm during the drug
offense. The court’s decision resulted in a two-level enhancement
under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2003), and
made Augustin ineligible for a reduction under the safety valve
provision. USSG § 2D1.1(b)(6). We affirm.
Augustin sold half a kilogram of crack to a confidential
informant for $12,000 and was immediately arrested by drug task
force agents. Augustin was carrying about $1200 in cash. He
cooperated, consented to a search of two apartments and assisted in
the search of the apartments. In the Whitcomb Street apartment,
the agents found another $12,000 in a shoebox and a handgun. In
the Albemarle Road apartment where Augustin lived with his
girlfriend and their children, they found cocaine and crack, some
of which was in a shoebox. The agents seized a total of 2.7
kilograms of crack and two kilograms of cocaine. Augustin told the
agents that the drugs, the gun and the money all belonged to him.
An enhancement under § 2D1.1(b)(1) is appropriate if a
gun is present during the drug offense unless it is clearly
- 2 -
improbable that the gun is connected to the offense. USSG § 2D1.1,
comment. (n.3). The government must show that the gun was
possessed during the drug activity, United States v. McAllister,
272 F.3d 228, 234 (4th Cir. 2001), but need not show “precisely
concurrent acts, for example, gun in hand while in the act of
storing drugs, drugs in hand while in the act of retrieving a gun.”
United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997) (citing
United States v. Johnson, 943 F.2d 383, 386 (4th Cir. 1991)).
Augustin claims that the enhancement was unjustified because the
gun was not found in the same apartment as the drugs and because
the government did not offer any proof that the $12,000 in cash was
derived from drug sales. However, because Augustin took the agents
to the apartment where the gun and the money were located as part
of his cooperation, we conclude that the district court did not
commit clear error in finding that it was not clearly improbable
that the gun was connected to Augustin’s drug activity.
We therefore affirm the sentence imposed by the district
court. 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
- 3 -