US v. Joseph Foust

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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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

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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