Appeal from the United States District Court for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge. (CR-96-8)
Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and HERLONG, United States District Judge for the District of South Carolina, sitting by designation.
Affirmed by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Michael and Judge Herlong joined.
Richard Harris pled guilty to possession of a controlled substance with intent to distribute and received a sentence of 50 months imprisonment. Harris now challenges this sentence on two grounds. First, he argues that the presence of unloaded firearms at his residence does not warrant a two level increase under Section 2D1.1(b)(1) of the Sentencing Guidelines. Second, he maintains that the calculation of his criminal history category under Section 4A1 of the Guidelines should not have included an earlier fine for selling alcohol to a minor. We disagree with both contentions and affirm the sentence.
On December 15, 1995, during a consensual search of Harris' residence for stolen firearms, federal agents discovered evidence of drugrelated activity. After obtaining a search warrant, they recovered several bags of cocaine, a bag of marijuana, fifteen capsules of dextroporpoxyphene (a controlled substance), and a scale with cocaine residue. While the agents did not locate the stolen weapons, they did discover boxes of ammunition and two firearms, one of which was located in the same dresser as some of the cocaine.
Harris pled guilty to one count of possession with intent to distribute a controlled substance in violation of 21 U.S.C.Section(s) 841(a)(1). Under the Guidelines, Harris' base offense level was 22. Because one of the firearms found in Harris' apartment was in close proximity to some of the narcotics, the district court increased the offense level by two. After granting Harris a three level reduction for acceptance of responsibility, the court set his final offense level at 21. Based on Harris' prior sentences, the district court set his criminal history category at III. The court sentenced Harris to 50 months in prison, in the middle of the applicable range; imposed a $50 mandatory assessment; and set a $1,200 fine, well below the fine recommended by the Guidelines. Harris now appeals.
Harris argues that the district court improperly increased his base offense level under Section 2D1.1(b)(1). He contends that the government failed to produce any evidence linking the firearms discovered at his residence to the drug-trafficking charge. He further maintains that the enhancement is improper where, as here, the firearms are unloaded. We disagree and hold that the Section 2D1.1(b)(1) enhancement in this case was not clear error. See United States v. Rusher, 966 F.2d 868, 880 (4th Cir. 1992) (reviewing Section(s) 2D1.1(b)(1) enhancement for clear error).
The Sentencing Commission recognized that drugs and guns form a lethal combination that can lead to violence. Section 2D1.1(b)(1) reflects this recognition by providing a two level increase in a defendant's base offense level when the defendant "possessed" a dangerous weapon during commission of a narcotics offense. Application Note 3 explains that this "enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons." U.S.S.G. Section(s) 2D1.1 Application Note 3 (1995).
The Application Notes to Section 2D1.1 further direct that the "adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." Id. We accept the Application Notes as authoritative unless they are inconsistent with the Constitution, a federal statute, or a plain reading of the Guidelines. Stinson v. ...