UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 99-4384

ELLANCER ALLEN MCGRADY, a/k/a

Lance,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Shelby.

Richard L. Voorhees, District Judge.

(CR-94-44)

Submitted: May 31, 2001

Decided: June 29, 2001

Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Roger T. Smith, Asheville, North Carolina, for Appellant. Mark T.

Calloway, United States Attorney, Jerry W. Miller, Assistant United

States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Ellancer Allen McGrady was originally sentenced to a term of life

imprisonment following a jury trial and convictions for conspiracy to

possess with intent to distribute cocaine and cocaine base, as well as

various related counts. He appealed his sentence and we remanded for

resentencing on the issue of whether McGrady possessed a firearm

and therefore was subject to an enhancement pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1998). On remand, the district court held a second sentencing hearing and again applied the

enhancement. McGrady appeals, contending that the district court

erred in applying the enhancement. McGrady also attempts to challenge his sentence, arguing that the findings the court made regarding

drug quantity and possession of a weapon should have been presented

to a jury, relying upon Apprendi v. New Jersey, 530 U.S. 466 (2000).

Finding no error, we affirm the judgment. 

First, even if the Apprendi issues McGrady wishes to raise were

before the court, his claims are without merit. As to drug quantity, his

indictment specified an amount of cocaine and crack cocaine sufficient to expose McGrady to a life sentence. The indictment was read

to the jury during jury instructions. Therefore, there is no error under

Apprendi. United States v. Richardson, 233 F.3d 223, 231 (4th Cir.

2000), petition for cert. filed, Mar. 19, 2001 (No. 00-9234). It also

was not error to make a determination that McGrady possessed a firearm for sentencing purposes. Sentencing enhancements that do not

increase the statutory maximum do not violate the principles of

Apprendi. United States v. Kinter, 235 F.3d 192, 200-01 (4th Cir.

2001), cert. denied, ___ U.S. ___, 69 U.S.L.W. 3618 (U.S. Mar. 19,

2001) (No. 00-8591). 

Section 2D1.1(b)(1) of the Sentencing Guidelines calls for the

imposition of a two-level enhancement "[i]f a dangerous weapon

(including a firearm) was possessed. The enhancement should be

applied if the weapon was present, unless it is clearly improbable that

the weapon was connected with the offense." USSG § 2D1.1, comment. (n.3). In order to avoid application of the adjustment, the defendant must show that the connection between the drug offense and the

2 UNITED STATES v. MCGRADY
dangerous weapon possession was clearly improbable. United States

v. Harris, 128 F.3d 850, 852-53 (4th Cir. 1997). The district court’s

factual findings pursuant to USSG § 2D1.1(b)(1) are reviewed for

clear error. United States v. Apple, 915 F.2d 899, 914 (4th Cir. 1990).

Our review of the record leads us to conclude that the district court

did not clearly err in applying this enhancement. Further, to the extent

that McGrady alleges that Sherry Waters, the Government’s witness,

was not credible, the district court’s credibility determination is not

reviewable on appeal. United States v. Saunders, 886 F.2d 56, 60 (4th

Cir. 1989). 

We therefore affirm the judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process. 

AFFIRMED

UNITED STATES v. MCGRADY 3