United States v. Robinson ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4740
BARRY ANTWOINE ROBINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-99-198)
Submitted: May 10, 2000
Decided: May 23, 2000
Before MURNAGHAN, WILLIAMS, and MICHAEL,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Walter Thaniel Johnson, Jr., Juanita Boger Allen, Greensboro, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
L. Patrick Auld, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Barry Antwoine Robinson appeals the seventy-eight-month sen-
tence he received after he pled guilty to possession of one ounce of
cocaine base (crack) in violation of 21 U.S.C.A.§ 844(a) (West
1999). He contends that the district court clearly erred in finding that
he possessed a firearm during the offense and making a two-level
enhancement. See U.S. Sentencing Guidelines Manual
§§ 2D2.1(b)(1), 2D1.1(b)(1) (1998). We affirm.
Robinson was arrested in his co-defendant's apartment while in the
act of flushing crack down the toilet. The presentence report recom-
mended an enhancement under § 2D1.1(b)(1)* based on information
that Robinson's papers and clothes were found in one of the bed-
rooms with two firearms (a 9 mm pistol and a .380 caliber pistol) and
400.6 grams of crack. Robinson's co-defendant told investigators that
one of the firearms belonged to Robinson and that Robinson lived at
the apartment. Additional firearms were found elsewhere in the apart-
ment. At his sentencing hearing, Robinson contested the enhance-
ment, but did not present any evidence to contradict the information
in the presentence report. Therefore, the district court was free to
adopt the findings in the presentence report without further inquiry.
See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). The
proximity of guns to illegal drugs is enough to support the enhance-
ment. See United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997).
Accordingly, the court did not clearly err in making the enhancement.
While Robinson suggests that the enhancement resulted from pro-
secutorial misconduct, he did not make that claim at sentencing and
no evidence supports it.
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*The guideline applicable to simple possession of a controlled sub-
stance is § 2D2.1; a cross reference to § 2D1.1 applies if, as in this case,
the defendant is convicted of possessing more than 5 grams of crack. See
USSG § 2D2.1(b)(1).
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We therefore affirm the sentence. 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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