United States v. Butler , 311 F. App'x 610 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5150
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CEDRIC O’NEAL BUTLER,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:05-cr-01220-MBS-1)
Submitted: January 21, 2009 Decided: February 13, 2009
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Russell W. Templeton, Columbia, South Carolina, for Appellant.
W. Walter Wilkins, United States Attorney, Stanley D. Ragsdale,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cedric O’Neal Butler pled guilty to conspiracy to
possess with intent to distribute and distribute 50 grams or
more of cocaine base (crack) and 500 grams or more of powder
cocaine, 21 U.S.C. § 846 (2006), and was sentenced to the
mandatory minimum term of 240 months imprisonment. In this
appeal, Butler contests the two-level enhancement he received
for possession of a dangerous weapon during the offense, U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) (2007). We affirm.
Butler concedes that the enhancement did not affect
his sentence because his advisory guideline range was lower than
the mandatory minimum sentence, but seeks review of the issue
under the misapprehension that, if he earns a substantial
assistance departure in the future, the district court could
begin a departure from the guideline range. In fact, any
departure would have to begin at the mandatory minimum sentence.
United States v. Pillow, 191 F.3d 403, 406-07 (4th Cir. 1999);
see also United States v. Diaz, 546 F.3d 566, 568 (8th Cir.
2008) (collecting cases).
The district court’s decision that an enhancement is
warranted under § 2D1.1(b)(1) is reviewed for clear error.
United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).
As he did in the district court, Butler argues that the gun he
took to a confrontation on November 14, 2004, which resulted in
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his cousin’s arrest, was unconnected to any drug activity. He
argues that his case is like McAllister, in which we held that
the evidence did not establish that the defendant possessed a
gun during a drug transaction, although he both sold drugs and
possessed handguns. Id. However, the defendant in McAllister
was convicted of drug trafficking, not conspiracy. In
McAllister, we also noted that “the Government need only show
that the weapon was possessed during the relevant illegal drug
activity.” Id. In this case, the relevant drug activity was a
conspiracy that lasted at least from November 14, 2004, to
August 2, 2006. Moreover, the evidence need only show that the
gun was located in the same place where the drugs were stored or
sold, and need not be “proof of 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) (quoting United States
v. Johnson, 943 F.2d 383, 386 (4th Cir. 1991)).
The district court had before it undisputed evidence
that Butler possessed a gun together with crack and powder
cocaine on November 14, 2004. Because he admitted participating
in a drug trafficking conspiracy that existed on that day, and
because the government proffered evidence, which Butler did not
contest, that he “regularly carried a pistol when he dealt
drugs,” and that “he was dealing drugs during this time period,”
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we conclude that the district court did not clearly err in
applying the enhancement. See United States v. Idowu, 520 F.3d
790, 795 (7th Cir. 2008) (affirming enhancement where drugs and
guns found together). As previously stated, because Butler was
subject to a mandatory 240-month sentence, the court’s ruling
did not affect his sentence.
We 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
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