UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4599

NOLAN MEARS, JR.,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4601

RUTH VANESSA WALKER,

Defendant-Appellant.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(CR-95-455-AMD)

Argued: December 5, 1997

Decided: March 13, 1998

Before Before NIEMEYER, Circuit Judge, BUTZNER,

Senior Circuit Judge, and MICHAEL,

Senior United States District Judge for the

Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Flynn Marcus Owens, JACK B. RUBIN, P.A., Baltimore,

Maryland, for Appellants. John Francis Purcell, Jr., Assistant United

States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:

Jack B. Rubin, JACK B. RUBIN, P.A., Baltimore, Maryland, for

Appellant Mears; Leslie A. Stein, Baltimore, Maryland, for Appellant

Walker. Lynne A. Battaglia, United States Attorney, Baltimore,

Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Nolan Mears and Ruth Walker appeal the district court's judgments

entered on the verdicts of a jury. Their principal assignment of error

pertains to a warrantless, protective sweep of Walker's house that disclosed two handguns. Mears protests the consequent two-point

enhancement of his sentence pursuant to U.S.S.G.§ 2D1.1(b)(1). We

affirm.

Mears, Walker, and Eduardo Rivera were convicted of conspiracy

to distribute and possess with intent to distribute heroin (count 1).

Rivera pled guilty and testified for the government. Mears was convicted of distributing heroin (count 2). Mears and Walker were convicted of distributing heroin (counts 3 and 4). Mears was also

convicted of distributing heroin (count 5). The district court dismissed

the charges in counts 2 and 5 against Walker. Neither Mears nor

Walker contests the sufficiency of the evidence with respect to counts

1, 2, 4, and 5. Appellants' Br. at 16. Walker contends that the evidence was insufficient to convict her of the distribution of heroin

charged in count 3. Walker pled guilty to possession of a firearm by

a convicted felon (count 6). The district court enhanced Mears' and

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Walker's sentences two points for possession of a firearm during a

drug transaction. Mears, but not Walker, assigns error to this enhancement.

I

On October 30, 1995, a Maryland state trooper found 750 grams

of heroin in a car driven by Eduardo Rivera. After the discovery,

Rivera agreed to cooperate with DEA agents in a controlled delivery

of heroin to Mears and Walker. At 6:30 p.m., Rivera called Walker

at her Lanvale residence to corroborate the story he told officials.

Approximately ten minutes after the phone call ended the agents left

with Rivera to observe his meeting with Walker and Mears. Rivera

arrived at the Lanvale residence at 7:30 p.m. and remained inside for

about an hour. At that time Rivera and Mears exited the house and

entered separate cars. Both vehicles were stopped one block later and

Mears was arrested. As the police were preparing to do a protective

sweep of the house Walker and another woman were spotted leaving

the residence. The women were stopped and taken back inside. DEA

agents then conducted a protective sweep of the residence to ensure

that additional conspirators were not in the house. During the sweep,

which took less than two minutes, two guns were found. One was

found under the bed of a second floor bedroom, and the other was

found between the mattress and box spring of the same bed. Walker

later admitted that she owned the guns.

The court held that the gun found under the bed was admissible

pursuant to the protective sweep doctrine and the gun found between

the mattress and the box spring was admissible under the inevitable

discovery, exception even though it was inadmissable under the protective sweep doctrine.

II

At this stage of the proceedings it is unnecessary to consider the

legality of the sweep of Walker's house that turned up two guns.

Walker's plea of guilty to possession of a gun by a felon precludes

her from questioning the sweep. In Tollet v. Henderson, 411 U.S. 258

(1973), the Court stated a rule that is applicable to Walker's case:

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 We thus reaffirm the principle recognized in the Brady

trilogy: a guilty plea represents a break in the chain of

events which has preceded it in the criminal process. When

a criminal defendant has solemnly admitted in open court

that he is in fact guilty of the offense with which he is

charged, he may not thereafter raise independent claims

relating to the deprivation of constitutional rights that

occurred prior to the entry of the guilty plea.

411 U.S. at 267.

III

Mears acknowledges that he lacks standing to challenge the sweep

of Walker's house in which he had no possessory or property interest.

Consequently, he also lacks standing to complain about the admission

of Walker's guns into evidence. See Rakas v. Illinois, 439 U.S. 128,

148 (1978). But his lack of standing is not the end of our inquiry. The

government must prove by a preponderance of the evidence that the

district court was authorized to increase his sentence by two levels.

Mears does not contest the sufficiency of the evidence to establish

that he was guilty of conspiracy, but he does protest the two-level

increase of his sentence.

When a defendant is convicted of laws relating to drugs, the district

court is directed to enhance the sentence as follows: "If a dangerous

weapon (including a firearm) was possessed, increase by 2 levels."

U.S.S.G. § 2D1.1(b)(1). The commentary provides:

The enhancement for weapon possession reflects the

increased danger of violence when drug traffickers possess

weapons. The adjustment should be applied if the weapon

was present, unless it is clearly improbable that the weapon

was connected with the offense.

U.S.S.G. § 2D1.1, comment. n.3.

We reject Mears' argument that there is no proof that he possessed

a gun when Rivera arrived at Walker's house with heroin. Mears was

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in the house awaiting Rivera's arrival. The fact that the conspirators

intended to complete the delivery of the heroin and make payment in

some other place is immaterial. Rivera's arrival at Walker's house

facilitated, and was a part of, the drug transaction. The requirements

of the guidelines are met when the gun is found in a place where the

conspiracy is furthered. United States v. Apple , 962 F.2d 335, 338

(4th Cir. 1992). The district court found that part of the reason Walker

possessed the guns was to protect the drug operation and those

engaged in it. The district court also found that Walker's house was

one of the headquarters of the defendants' drug distribution activity.

Possession of a gun by a codefendant (Walker) can be attributed to

the defendant (Mears) when possession is in furtherance of a conspiracy and is reasonably foreseeable. United States v. Nelson, 6 F.3d

1049, 1056 (4th Cir. 1993). There can be no doubt that Walker's possession of guns was foreseeable to Mears. In fact, Rivera saw Mears

carrying a gun on some other occasions. It should come as no surprise

to him that Walker would have a gun in her house. We are satisfied

that the district court did not err by enhancing Mears' sentence by two

levels.

IV

Walker claims that the district court erred when it denied her

motion for judgment of acquittal on count 3, which charged her with

distributing heroin on September 27, 1995. When a motion for a judgment of acquittal is based on the insufficiency of the evidence, the

standard of review is whether the evidence viewed in a light most

favorable to the government is sufficient for any rational trier of fact

to find the essential elements of the crime beyond a reasonable doubt.

See Glasser v. United States, 315 U.S. 60, 80 (1941); Fed. R. Crim

P. 29.

During the transaction, a seven-minute conversation was recorded,

and that recording was played for the jury. The recording was made

by Richard Satterfield, a cooperating witness who wore a body wire

to the drug buy. Satterfield was unable to testify at trial because he

was murdered one week before trial. An FBI agent identified Walker

as one of the participants in the conversation by comparing the voice

on the recording to a sample of Walker's voice. Additionally, an

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Infiniti Q45 was involved in the drug transaction. Walker had previously been seen driving this car.

The district court ruled that a rational fact finder could find Walker

guilty of count 3 beyond a reasonable doubt, though, on the government's concession, it granted Walker's motion for acquittal on count

2. As the government emphasized, the distinguishing feature between

counts 2 and 3 was the recording and voice identification with respect

to count 3. We find no error in the district court's denial of Walker's

count 3 motion.

AFFIRMED

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