UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4993

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DEMETRIUS DARRELL DAVIS, a/k/a Meatman,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.

(CR-97-248-BEL)

Submitted: June 30, 2006 Decided: July 26, 2006

Before MOTZ, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,

Maryland, for Appellant. Rod J. Rosenstein, United States

Attorney, Christine Manuelian, Assistant United States Attorney,

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

This case is before the court after a remand to the

district court for resentencing in light of United States v.

Booker, 543 U.S. 220 (2005), and United States v. Hughes, 401 F.3d

540, 546 (4th Cir. 2005). Demetrius Davis pled guilty, without the

benefit of a plea agreement, to all counts of an indictment

charging him with conspiring to distribute and to possess with

intent to distribute “a quantity” of cocaine and crack, and three

substantive counts of distributing a total of fifty-five grams of

crack cocaine. See 21 U.S.C. §§ 841(a)(1), 846 (2000).

At his original sentencing, the district court found that

Davis was responsible for 1.5 kilograms of cocaine base, resulting

in a base offense level of 38. U.S. Sentencing Guidelines Manual

§ 2D1.1(b)(1) (2000). With an additional two-level enhancement for

possession of a firearm, less a three-level reduction for

acceptance of responsibility, Davis’ final total offense level was

37, with a corresponding guidelines range of 210 to 262 months.

The district court imposed a 210-month sentence. On appeal, this

court affirmed Davis’ conviction but vacated his sentence and

remanded for resentencing consistent with Booker and Hughes. See

United States v. Davis, No. 04-4084 (4th Cir. May 26, 2005)

(unpublished). 

On remand, the district court again determined that Davis

was responsible for 1.5 kilograms of cocaine base, resulting in a
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base offense level of 38. The court also imposed the same increase

for the firearm and gave a three-level reduction for acceptance of

responsibility, resulting in a total offense level of 37, with a

corresponding guidelines range of 210 to 262 months. After taking

into account the additional factors enumerated in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2005), particularly Davis’ academic

accomplishments while incarcerated, the court sentenced Davis below

the advisory guidelines range to 188 months of imprisonment. He

has noted a timely appeal. 

Davis contends, first, that the district court erred in

enhancing his sentence for possession of a dangerous weapon in

connection with a drug offense, pursuant to USSG § 2D1.1(b)(1),

because there was no evidence that he possessed a firearm in

connection with the charges to which he pled guilty. The district

court’s enhancement under § 2D1.1(b)(1) is reviewed for clear

error. United States v. McAllister, 272 F.3d 228, 234 (4th Cir.

2001). 

Under the guidelines, a defendant receives a two-level

increase to his base offense level under USSG § 2D1.1(b)(1) if a

dangerous weapon was possessed during the offense. This

“adjustment should be applied if the weapon was present, unless it

is clearly improbable that the weapon was connected with the

offense.” USSG § 2D1.1(b)(1) cmt. n.3. The government need not

establish a perfect connection between the possession of the
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firearm and the commission of the drug offense before the

enhancement may be made. See McAllister, 272 F.3d at 234 (“In

order to prove that a weapon was present, the Government need show

only that the weapon was possessed during the relevant illegal drug

activity.”). Evidence of firearms in proximity to illegal drugs

can support a conclusion that the firearms were possessed during

the commission of the drug offense. See United States v. Harris,

128 F.3d 850, 852 (4th Cir. 1997) (noting that the test requires

nothing more than that the guns be located in the same place where

drugs are stored or distributed). Moreover, the enhancement does

not “require[] proof of precisely concurrent acts, for example, gun

in hand while in the act of storing drugs, drugs in hand while in

the act of retrieving a gun.” Id. (internal quotation marks

omitted). We find that, based on the evidence before the district

court, it was not clearly improbable that the weapons at issue were

connected with the offenses to which Davis pled guilty. Therefore,

the district court did not clearly err by applying the

§ 2D1.1(b)(1) enhancement.

Next, Davis asserts that retroactive application of the

Booker decision results in an Ex Post Facto violation. However,

Davis’ argument is foreclosed by this court’s decision in United

States v. Davenport, 445 F.3d 366 (4th Cir. 2006) (noting that “Ex

Post Facto challenges to the retroactive application of Booker have

been universally rejected by the federal courts”).
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Finally, Davis argues that the imposition of a sentence

“under a mandatory minimum and consecutive statute, where the

statute does not provide any judicial exception or ‘safety valve’

to this mandatory aspect, constituted an unreasonable and

unconstitutional sentence, as it denied the trial court the ability

to impose a sentence with regard to the important constitutional

considerations set forth in § 3553.” 

After the Supreme Court’s decision in Booker, a

sentencing court is no longer bound by the range prescribed by the

Sentencing Guidelines. Hughes, 401 F.3d at 546. In determining a

sentence post-Booker, however, sentencing courts are still required

to calculate and consider the guideline range prescribed thereby as

well as the factors set forth in 18 U.S.C.A. § 3553(a). United

States v. Green, 436 F.3d 449, 455-56 (4th Cir. 2006). As stated

in Hughes, this court will affirm a post-Booker sentence if it is

both reasonable and within the statutorily prescribed range. 401

F.3d at 546-47. Further, this court has stated that “while we

believe that the appropriate circumstances for imposing a sentence

outside the guideline range will depend on the facts of individual

cases, we have no reason to doubt that most sentences will continue

to fall within the applicable guideline range.” United States v.

White, 405 F.3d 208, 219 (4th Cir.), cert. denied, 126 S. Ct. 668

(2005). The rule announced in Booker does not apply to statutory
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mandatory minimum sentences. See United States v. Groce, 398 F.3d

679, 682 n.2 (4th Cir. 2005). 

Here, the district court appropriately treated the

guidelines as advisory and properly calculated and considered the

guidelines range as well as the relevant factors under § 3553(a).

The court imposed a sentence below the statutory maximum and below

the guidelines range after carefully reviewing the § 3553(a)

factors and stated its reasons for sentencing Davis below the

guidelines range. See Hughes, 401 F.3d at 547. We therefore find

that Davis’ sentence was reasonable. 

Accordingly, we affirm. 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