US v. Dennis Ferretti

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:15-cr-00024-FPS-JES-2. Copies to all parties and the district court. [999824622]. [15-4608]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4608

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS FERRETTI,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.
Frederick P. Stamp,
Jr., Senior District Judge. (5:15-cr-00024-FPS-JES-2)

Submitted:

March 28, 2016

Decided:

May 17, 2016

Before AGEE, KEENAN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Elgine McArdle, MCARDLE LAW OFFICES, Wheeling, West Virginia,
for Appellant.
William J. Ihlenfeld, II, United States
Attorney, Jarod J. Douglas, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dennis
following

Ferretti
his

appeals

guilty

plea

the

to

46-month

conspiracy

sentence
to

imposed

distribute

and

possess with intent to distribute Oxycodone, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(C), 846 (2012).

On appeal, Ferretti

argues that the district court erred by applying a two-level
enhancement

pursuant

§ 2D1.1(b)(1)

to

(2014)

U.S.

for

Sentencing

possessing

a

Guidelines

dangerous

Manual

weapon.

We

applying

“a

affirm.
We

review

sentences

for

deferential

abuse-of-discretion

States,

U.S.

552

38,

41

reasonableness,
standard.”

(2007);

procedural reasonableness).

see

Gall

id.

at

v.

51

United

(discussing

The Sentencing Guidelines direct a

district court to increase a defendant’s offense level by two
levels

“[i]f

possessed.”

a

dangerous

USSG

§

weapon

(including

2D1.1(b)(1).

The

a

firearm)

dangerous

was

weapon

enhancement applies “if the weapon was present, unless it is
clearly

improbable

offense.”

that

the

Id. cmt. n.11(A).

weapon

was

connected

with

the

The defendant bears the burden of

“show[ing] that a connection between his possession of a firearm
and his narcotic offense is clearly improbable.”

United States

v. Slade, 631 F.3d 185, 189 (4th Cir. 2011) (internal quotation
marks omitted); United States v. Manigan, 592 F.3d 621, 629 (4th
Cir.

2010)

(discussing

factors
2

courts

consider

in

applying

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weapon

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enhancement).

“We

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review

the

district

court’s

legal

conclusions de novo and its factual findings for clear error.”
United States v. Gomez-Jimenez, 750 F.3d 370, 380 (4th Cir.)
(internal quotation marks omitted), cert. denied, 135 S. Ct. 384
(2014).
Ferretti argues that there is no evidence that he possessed
the gun on which the enhancement was based for his protection
during the conspiracy.

He relies on the fact that he possessed

the gun pursuant to a valid concealed carry permit and that he
did not carry it during a traffic stop in which drugs were
seized

or

after

he

stole

coconspirator’s residence.
did

not

err

when

it

money

and

drugs

from

his

We conclude that the district court

applied

the

§ 2D1.1(b)(1)

enhancement.

Ferretti kept the handgun in close proximity to the drugs and
cash proceeds from the sales, and, thus, the gun was readily
available should the need arise to use it to protect either the
drugs or cash.

See Manigan, 592 F.3d at 629 (“[F]irearms that

are readily accessible during drug activities can be deemed as
possessed in connection there-with.”).

Moreover, the fact that

Ferretti possessed the firearm pursuant to a valid concealed
carry permit does not mean that he did not also possess the gun
in connection with the drug conspiracy.

See United States v.

Carlson, 810 F.3d 544, 557 (8th Cir. 2016), petition for cert.

3

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filed, __ U.S.L.W. __ (U.S. Mar. 9, 2016) (No. 15-1136); United
States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998).
Accordingly, we affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

4