US v. Souvira Simalayvong

Filing 920100112

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4819

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SOUVIRA SIMALAYVONG, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00063-RLV-DCK-1)

Submitted:

December 18, 2009

Decided:

January 12, 2010

Before KING, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Joshua D. Davey, MCGUIRE WOODS LLP, Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Souvira Simalayvong pled guilty to conspiracy to

possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846 (2006) (Count 1), and two counts of

possessing with intent to distribute methamphetamine and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) (2006) and 18 U.S.C. § 2 (2006) (Counts 3, 4). his remaining of charge a that he used He proceeded to trial on and crime carried in a firearm of in 18

furtherance

drug

trafficking

violation

U.S.C.A. § 924(c) (West Supp. 2009), and the jury found him not guilty. for each Simalayvong was sentenced to 108 months of imprisonment conviction, to be served concurrently. On appeal,

Simalayvong argues that the district court erred by imposing a two-level enhancement for possession of a firearm during the commission of a drug trafficking offense under U.S. Sentencing Guidelines Manual ("USSG") § 2D1.1(b)(1) (2007). For the

reasons that follow, we affirm. We finding that do not find that the district the gun court's at factual in

Simalayvong

possessed

issue

connection with his drug dealing was clear error.

United States

v. Allen, 446 F.3d 522, 527 (4th Cir. 2006) (providing legal and factual review standard); United States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006) (factual findings at sentencing are reviewed for clear error). Sentencing enhancements need only be 2

supported by a preponderance of the evidence, United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003), and the USSG § 2D1.1 enhancement is proper if the weapon was present "unless it is clearly offense." improbable that the weapon was connected to the

USSG § 2D1.1, comment. (n.3). trial regarding for the his

The facts presented at of to the Taurus the

Simalayvong's pistol were

possession court

sufficient

district

impose

enhancement. Accordingly, we find no reversible error and affirm Simalayvong's 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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