United States v. Bernard ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4873
PHGERO M. BERNARD,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Rebecca B. Smith, District Judge.
(CR-96-31)
Submitted: August 12, 1997
Decided: September 3, 1997
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jennifer T. Stanton, J. T. STANTON, P.C., Norfolk, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Robert E. Braden-
ham, II, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Phgero M. Bernard pled guilty to distribution of and possession
with intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (1994). He appeals his 192-month sentence, contending
that the district court erred in imposing a two-level enhancement for
possession of a firearm. See United States Sentencing Commission,
Guidelines Manual, § 2D1.1(b)(1) (Nov. 1995). Finding no error, we
affirm.
Under the surveillance of law enforcement officials, Bernard sold
414.9 grams of cocaine base to an undercover confidential informant.
The transaction occurred in the vehicle that Bernard drove to the
meeting. After the sale was completed, the informant exited the vehi-
cle and Bernard was arrested. During the search of the vehicle inci-
dent to Bernard's arrest, 199.1 grams of cocaine base were recovered
from inside a knapsack on the seat behind the driver's seat, and a .40
caliber Taurus pistol was recovered from the back seat on the passen-
ger side floorboard. In imposing sentence, the district court found that
Bernard possessed the weapon during the commission of a drug traf-
ficking crime and applied the two-level enhancement of USSG
§ 2D1.1(b)(1).
Relying on Bailey v. United States, #6D6D 6D# U.S. ___, 64 U.S.L.W.
4039 (U.S. Dec. 6, 1995) (Nos. 94-7448, 94-7492), Bernard contends
that the district court clearly erred in making the enhancement for
possession of a firearm because there was no evidence presented that
he actively employed the firearm. However, Bailey does not preclude
a sentencing enhancement for possession of a firearm during a drug
offense. See United States v. Hawthorne, 94 F.3d 118, 122 (4th Cir.
1996). Rather, the commentary to USSG § 2D1.1(b)(1) directs that
the enhancement for weapon possession by drug traffickers "should
be applied if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense." USSG
§ 2D1.1(b)(1), comment (n.3). We find no clear error in the district
court's finding that the firearm in the vehicle where the drug transac-
tion occurred was sufficient to enhance Bernard's sentence for
2
weapon possession under the guidelines. See United States v. Rusher,
966 F.2d 868, 880-81 (4th Cir. 1992).
We therefore affirm Bernard's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
3