United States v. Kenneth Traynham ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4673
KENNETH LEE TRAYNHAM,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4674
LYNN CLAY,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Danville.
Norman K. Moon, District Judge.
(CR-97-30084)
Submitted: April 20, 1999
Decided: May 5, 1999
Before ERVIN and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Stacey W. Moreau, WILLIAMS, MORRISON, LIGHT & MOREAU,
Danville, Virginia; Barbara R. Hudson, Danville, Virginia, for Appel-
lants. Robert P. Crouch, Jr., United States Attorney, Ray B. Fitzger-
ald, Jr., Assistant United States Attorney, Charlottesville, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Kenneth Lee Traynham appeals the 210-month sentence he
received after he pled guilty to conspiracy to possess crack cocaine
with intent to distribute. See 21 U.S.C.§ 841(a) (1994). Lynn Clay
pled guilty to using and carrying a firearm during and in relation to
a drug trafficking offense. See 18 U.S.C.A.§ 924(c) (West Supp.
1999). She appeals her mandatory 60-month sentence, alleging that
the district court had authority to depart by making it concurrent to
a sentence she was already serving. We affirm the sentences in both
cases.
I. Traynham
Traynham sold crack to an undercover officer on four occasions.
His home was searched after his arrest. Powder cocaine and crack,
some of it packaged for sale, as well as two firearms, $2000 in cash
and two sets of digital scales were seized from his home. The district
court added two offense levels for possession of a firearm under U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) (1997). The enhance-
ment is required if a firearm or other dangerous weapon is possessed
during a drug offense and should be made if a firearm is present
unless it is clearly improbable that the weapon was connected to the
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offense. See USSG § 2D1.1(b)(1), comment. (n.3). The district
court's finding is reviewed for clear error. See United States v. Harris,
128 F.3d 850, 852 (4th Cir. 1997). Possession of a weapon in a place
where a drug conspiracy is carried on is sufficient to trigger the
enhancement, see United States v. Apple, 962 F.2d 335, 338 (4th Cir.
1992), as is presence of the weapon in proximity to illegal drugs. See
Harris, 128 F.3d at 852. Here, we find that the district court did not
clearly err in making the enhancement.
In 1995, Traynham received a ten-year state sentence which was
suspended on condition of good behavior. In 1996, active supervision
of his case ceased. The district court gave Traynham two criminal his-
tory points under USSG § 4A1.1(d), because he was under a criminal
justice sentence when he committed the instant offense. Traynham
argues that a sentence of good behavior cannot be equated with a
criminal justice sentence. However, his suspended sentence was sub-
ject to revocation if the condition of good behavior was not met, and
his argument is thus meritless. Application Note 4 to § 4A1.1 speci-
fies that unsupervised probation comes within the definition of a
criminal justice sentence. See also United States v. Kimberlin, 18 F.3d
1156, 1160 (4th Cir. 1994) (affirming addition of two points for com-
mission of offense while on unsupervised probation).
II. Clay
Clay was first charged with conspiracy and six substantive crack
and cocaine offenses in a February 1997 indictment (the Hammack
conspiracy). Clay pled guilty in September 1997 to all seven counts
under a plea agreement which provided that the government would
consider moving for a substantial assistance departure if Clay's infor-
mation led to the prosecution of others. Clay received a substantial
assistance departure in the Hammack case and was sentenced to 40
months imprisonment.
Clay was subsequently charged with conspiracy and use of a fire-
arm in a drug trafficking crime in a second indictment involving dif-
ferent co-defendants (the Traynham conspiracy). The basis for the
§ 924(c) charge was that Clay traded two guns she had stolen from
her father to conspirator Phillip Parker for crack in January 1997
(within the time frame of the Hammack conspiracy). The same day,
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Parker sold one of the guns to an undercover officer. Clay pled guilty
to the § 924(c) count in June 1998. At sentencing, she maintained that
her substantial assistance in the Hammack case should be considered
and that the court should depart downward by making her mandatory
five-year consecutive sentence for the § 924(c) conviction concurrent
with the sentence imposed in the prior case. The district court decided
that it had no authority to depart based on the substantial assistance
motion made at Clay's prior sentencing.
Clay now contends that the government breached her first plea
agreement by charging her with the § 924(c) offense and failing to
request a substantial assistance departure. We find that the govern-
ment did not breach the first plea agreement and that the district court
had no authority to depart on the arguments advanced at sentencing.
Accordingly, we affirm both sentences. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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