US v. Souvira Simalayvong

Filing 920100112

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4819 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SOUVIRA SIMALAYVONG, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 3

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