United States v. Lorenzo Rivas Cruz , 986 F.2d 1415 ( 1993 )

986 F.2d 1415

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Lorenzo Rivas CRUZ, Defendant-Appellant.

No. 92-5202.

United States Court of Appeals,
Fourth Circuit.

Submitted: February 1, 1993
Decided: February 17, 1993

Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. Norwood Carlton Tilley, Jr., District Judge. (CR-90-165-WS)

David F. Tamer, Winston-Salem, North Carolina, for Appellant.

Robert H. Edmunds, Jr., United States Attorney, Paul A. Weinman, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

M.D.N.C.

AFFIRMED.

Before HALL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

1

Lorenzo Rivas Cruz appeals from his sentence of ninety-two months imprisonment following this Court's decision vacating his conspiracy conviction, but upholding his conviction for possession with intent to distribute cocaine base. We affirm.

2

Cruz was in constructive possession of cocaine found in a secret compartment of a car in which he was a passenger. A pistol was found in the same compartment. Cruz argues that the district court erred in making a two level upward adjustment in his offense level for possession of a firearm in connection with his offense. United States Sentencing Commission, Guidelines Manual, § 2D1.1 (Nov. 1991). He claims that there was insufficient evidence linking him to the firearm to support the enhancement.

3

This Court will uphold an enhancement under the applicable sentencing guideline unless it is clearly improbable that the weapon was connected to the offense. See United States v. Rusher, 966 F.2d 868, 880-81 (4th Cir.), cert. denied, 61 U.S.L.W. 3285 (U.S. 1992). Considering the proximity of the weapon to the controlled substance constructively possessed by Cruz, we find that the district court did not err in imposing the enhancement. We therefore affirm. 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