UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4902

ERIC EUGENE MOBLEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Richard L. Voorhees, Chief District Judge.

(CR-94-92-V)

Submitted: June 23, 1998

Decided: July 20, 1998

Before HAMILTON and MOTZ, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jesse J. Waldon, Jr., Matthews, North Carolina, for Appellant. Mark

T. Calloway, United States Attorney, Gretchen C.F. Shappert, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Eric Eugene Mobley pleaded guilty, pursuant to a written plea

agreement, to conspiracy to possess with intent to distribute and distribution of cocaine base, in violation of 21 U.S.C.§§ 841(A)(1), 846

(1994), and using and carrying a firearm during and in relation to a

drug trafficking offense, in violation 18 U.S.C.§ 924(c)(1) (1994)

(current version at 18 U.S.C.A. § 924(c)(1) (West Supp. 1988)). On

appeal, Mobley contended, inter alia, that in light of Bailey v. United

States, 516 U.S. 137 (1995), his § 924(c) conviction should be

vacated. We vacated Mobley's § 924(c) conviction and sentence and

remanded the case for a determination whether an enhancement was

appropriate under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)

(1995). See United States v. Mobley, No. 95-5569 (4th Cir. Aug. 19,

1997) (unpublished). The district court resentenced Mobley, enhancing his conspiracy conviction under USSG § 2D1.1(b)(1) for possession of a firearm. On appeal, Mobley challenges the district court's

application of the sentencing enhancement. Finding no error, we

affirm.

Mobley contends that the evidence was insufficient to prove that

the firearms were connected to the drug activities. He also contends

that, because the Government failed to specifically seek the enhancement at resentencing, the district court was precluded from awarding

the enhancement. Mobley asserts that the district court erred in

accepting the probation officer's recommendation in the revised Presentence Report, which was unsupported by any new proffer of evidence by the Government.

We review the district court's factual finding regarding possession

of a dangerous weapon during the commission of a drug offense for

clear error. See United States v. Kimberlin, 18 F.3d 1156, 1160 (4th

Cir. 1994). The commentary to USSG § 2D1.1(b)(1) directs that the

enhancement for weapon possession by drug traffickers "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),

comment. (n.3). In a conspiracy case the proximity condition is met

when the weapon is present in a place where the conspiracy is carried

on or furthered. See United States v. Apple, 962 F.2d 335, 338 (4th

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Cir. 1992). An enhancement under § 2D1.1(b)(1) may be applicable

even if the defendant was acquitted of a § 924(c) offense, or if the

§ 924(c) offense was vacated. See United States v. Nelson, 6 F.3d

1049, 1057 (4th Cir. 1993); see also United States v. Smith, 94 F.3d

122, 125 (4th Cir. 1996).

The government has the burden of proving by a preponderance of

the evidence the sentencing factors for which the defendant should be

held accountable. See United States v. Estrada , 42 F.3d 228, 231 (4th

Cir. 1994). In resolving a factual dispute regarding a sentencing determination, the court may rely upon any relevant information without

regard to its admissibility under the rules of evidence provided that

the information has sufficient indicia of reliability to support its probable accuracy. See USSG § 6A1.3(a), p.s. The government may rely

upon information found in the PSR unless the defendant affirmatively

shows that the information found there is inaccurate or unreliable. See

United States v. Gilliam, 987 F.2d 1009, 1014 (4th Cir. 1993). A

"mere objection" to the PSR's contents "is not sufficient" to challenge

the accuracy of a PSR. See United States v. Terry, 916 F.2d 157, 162

(4th Cir. 1990). In the absence of such a showing, the sentencing

court is free to adopt the PSR's findings.

At the sentencing hearing, the Government, relying on the facts as

reported in the original PSR, which were restated verbatim in the

revised PSR, asserted that the enhancement was proper. At the original sentencing hearing, Mobley stipulated to the offense conduct section of the PSR as the factual basis for his plea. The uncontested facts

revealed that Mobley would supply crack to his co-defendant, who in

turn made a number of sales to an undercover agent. Mobley stored

the drugs he provided to his co-defendant in his apartment. On May

4, 1994, Mobley was arrested while retrieving crack from his apartment for a sale to the undercover agent. His apartment was searched

by federal agents, who found 223 grams of crack, nearly $9000 in

cash, seven firearms, and drug paraphernalia. We find that the district

court's application of § 2D1.1(b)(1) was not clearly erroneous.

Accordingly, we affirm Mobley's sentence. 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

in the decisional process.

AFFIRMED

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