US v. Joseph Foust


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00277-TDS-1 Copies to all parties and the district court/agency. [999739581].. [15-4374]

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Appeal: 15-4374 Doc: 25 Filed: 01/21/2016 Pg: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4374 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSEPH KYLE FOUST, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:14-cr-00277-TDS-1) Submitted: January 15, 2016 Decided: January 21, 2016 Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, John A. Duberstein, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, Terry M. Meinecke, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4374 Doc: 25 Filed: 01/21/2016 Pg: 2 of 4 Foust from PER CURIAM: Joseph Kyle appeals his 120-month sentence entered pursuant to his guilty plea to possession with intent to distribute methamphetamine. Sentencing Guidelines dangerous weapon, range under § 2D1.1(b)(1) (2014). Section On appeal, enhancement U.S. he for Sentencing challenges possession Guidelines his of a Manual We affirm. 2D1.1(b)(1) provides for a two-level enhancement “[i]f a dangerous weapon (including a firearm) was possessed” in connection with commentary to should applied be clearly the § 2D1.1 “if improbable offense.” drug USSG § offense. explains the that 2D1.1, that weapon the USSG comment. the was weapon § 2D1.1(b)(1). weapons present, was enhancement unless connected (n.11(A)). The it The with is the district court’s decision to apply the enhancement is reviewed for clear error. United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997). The Government need not establish a perfect connection between the possession of the firearm and the commission of the drug offense before the enhancement may be made. That is because “enhancement under Section 2D1.1(b)(1) does not require 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.” Harris, 128 F.3d at 852 (alteration 2 Appeal: 15-4374 Doc: 25 Filed: 01/21/2016 Pg: 3 of 4 and internal quotation marks omitted). Instead, “possession of the weapon during the commission of the offense is all that is needed to invoke the enhancement.” F.2d 335, 338 (4th Cir. United States v. Apple, 962 1992); accord United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001) (“In order to prove that a weapon was present, the Government need show only that the weapon was possessed during the relevant illegal drug activity.”). Evidence of firearms in proximity to illegal drugs can support a conclusion that the firearms were possessed during the commission of the drug offense. See Harris, 128 F.3d at 852 (noting that “the proximity of guns to illicit narcotics can support a district court's enhancement of a defendant's sentence under Section 2D1.1(b)(1)”). The defendant has the burden of showing that a connection between his possession of a firearm and his drug offense is “clearly improbable.” United States v. Slade, 631 F.3d 185, 189 (4th Cir. 2011). While enhancement Foust raises was improper, several we arguments find that as these to why the arguments are either unsupported or would not make it clearly improbable that the firearm was connected with Foust’s drug dealing. Foust was found in a locked bedroom, in possession of a gun, ammunition, drug paraphernalia, and methamphetamine. He did not produce any evidence that he was unaware of the presence of the gun or that it was used for hunting or sport. 3 Because Foust had only a weak Appeal: 15-4374 Doc: 25 Filed: 01/21/2016 Pg: 4 of 4 case to support his “clearly improbable” theory and he possessed a firearm in close proximity to drugs and drug paraphernalia, the district court did not clearly err in applying the enhancement. Accordingly, we affirm Foust’s sentence. oral argument adequately because presented in the the facts and materials legal before We dispense with contentions this court are and argument would not aid the decisional process. AFFIRMED 4

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