UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4263

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DANIEL LEE CANTER,

Defendant - Appellant.

Appeal from the United States District Court for the Northern

District of West Virginia, at Elkins. John Preston Bailey, 

District Judge. (2:15-cr-00014-JPB-MJA-1)

Submitted: November 22, 2016 Decided: November 29, 2016

Before WILKINSON and SHEDD, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Brian J. Kornbrath, Federal Public Defender, Kristen M. Leddy, 

Research & Writing Specialist, Clarksburg, West Virginia, for 

Appellant. William J. Ihlenfeld, II, United States Attorney, 

Stephen D. Warner, Assistant United States Attorney, Elkins, West 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Daniel Lee Canter pled guilty, pursuant to a plea agreement, 

to possession with intent to distribute methamphetamine, in 

violation of 21 U.S.C. § 841(a)(1) (2012), and the district court 

sentenced him to 188 months’ imprisonment. On appeal, Canter 

contends that the court erred in applying the enhancement under 

U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2015) for 

possession of a firearm and in calculating his criminal history 

category. We affirm.

We review a sentence for procedural and substantive 

reasonableness under a deferential abuse of discretion standard. 

Gall v. United States, 552 U.S. 38, 51 (2007); United States v. 

Berry, 814 F.3d 192, 194-95 (4th Cir. 2016). In determining 

whether a sentence is procedurally reasonable, we consider, among 

other factors, whether the district court properly calculated the 

defendant’s advisory Sentencing Guidelines range. Gall, 552 U.S. 

at 51. In evaluating a district court's application of the 

Guidelines, we review the court’s factual findings for clear error

and its legal conclusions de novo. United States v. Cox, 744 F.3d 

305, 308 (4th Cir. 2014). “Clear error occurs when the reviewing 

court on the entire evidence is left with the definite and firm 

conviction that a mistake has been committed.” Id. (alteration 

and internal quotation marks omitted).
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We first address Canter’s challenge to the district court’s 

application of the two-level enhancement under § 2D1.1(b)(1) for 

possession of a firearm. This enhancement is appropriate if a 

firearm was possessed “during the relevant illegal drug activity.” 

United States v. Slade, 631 F.3d 185, 188 (4th Cir. 2011) (internal 

quotation marks omitted). As the district court observed, the

enhancement “reflects the increased danger of violence when drug 

traffickers possess weapons” and applies “if the weapon was 

present, unless it is clearly improbable that the weapon was 

connected with the offense.” USSG § 2D1.1 cmt. n.11(A). “It is 

the defendant’s burden to show that a connection between his 

possession of a firearm and his narcotic offense is ‘clearly 

improbable.’” Slade, 631 F.3d at 189. 

We conclude that Canter has not met the burden of showing 

that it was clearly improbable that the shotgun discovered in his 

vehicle near a safe containing methamphetamine and a significant 

quantity of cash was connected to the drug-trafficking offense. 

Accordingly, the court properly applied the two-level enhancement 

for possession of a firearm. See United States v. Harris, 128 

F.3d 850, 852 (4th Cir. 1997) (holding “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)”). 

Next, we turn to Canter’s challenge to the district court’s 

calculation of his criminal history category. Section 4B1.1(b) 
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instructs courts to calculate offense levels for career offenders, 

like Canter, as follows: “Except as provided in subsection (c), if 

the offense level for a career offender from the table in this 

subsection is greater than the offense level otherwise applicable, 

the offense level from the table in this subsection shall apply.” 

USSG § 4B1.1(b). Subsection (c) provides an alternative 

sentencing scheme for those career offenders who are convicted 

under 18 U.S.C. § 924(c) (2012) and 18 U.S.C. § 929(a) (2012). 

USSG § 4B1.1(c). Section 4B1.1(b) also provides that “[a] career 

offender's criminal history category in every case under this 

subsection shall be Category VI.” USSG § 4B1.1(b). 

Canter contends that the district court’s application of the 

greater, “otherwise applicable” offense level based on his offense 

conduct automatically removed him from the ambit of the career 

offender Guideline such that the court was then obligated to apply 

his “true” criminal history category of V instead of the criminal 

history category of VI prescribed by the career offender Guideline. 

Canter argues that the court was required to apply either the 

offense level and criminal history category under the career 

offender Guideline or the “otherwise applicable” offense level and 

the criminal history category derived from the criminal history 

points assessed to him, whichever pairing produced the higher 

Guidelines range. 
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We conclude that Canter’s argument is without merit and that 

the court properly applied the career offender Guideline. “[A] 

case arises under subsection (b) of the career offender [G]uideline 

in every case in which the defendant qualifies as a career 

offender.” United States v. Marseille, 377 F.3d 1249, 1257 (11th 

Cir. 2004). “The sole exception to this rule is the one provided 

for by subsection (b) itself, which explicitly takes those 

defendants convicted under 18 U.S.C. § 924(c) or 18 U.S.C. § 929(a) 

out of the purview of the subsection.” Id. Thus, several circuits 

have adopted the rule that a career offender’s criminal history 

category is VI regardless of whether the sentencing court applies 

the offense level listed in the § 4B1.1(b) table or the “otherwise 

applicable” offense level. See United States v. Gordon, 838 F.3d 

597, 602-03 (5th Cir. 2016) (collecting cases and holding that 

“[t]here is nothing in [§ 4B1.1(b)] that suggests . . . that 

applying the ‘offense level otherwise applicable’ somehow removes 

the district court from the purview of [that] subsection”). We 

similarly conclude that the district court did not err in basing

Canter’s advisory Guidelines range on the “otherwise applicable” 

offense level and the criminal history of VI prescribed by the 

career offender Guideline.

Accordingly, we affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal contentions 
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are adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED