UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4873

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID LEE KIDD, II,

Defendant - Appellant.

No. 12-4874

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID L. KIDD, II,

Defendant – Appellant.

Appeals from the United States District Court for the Northern

District of West Virginia, at Wheeling. Frederick P. Stamp, 

Jr., Senior District Judge. (5:11-cr-00017-FPS-JES-1; 5:12-cr00014-FPS-1)

Submitted: May 30, 2013 Decided: June 6, 2013

Before GREGORY, SHEDD, and WYNN, Circuit Judges.
2

Affirmed by unpublished per curiam opinion.

Brendan S. Leary, Assistant Federal Public Defender, Wheeling, 

West Virginia; Kristen M. Leddy, Research and Writing 

Specialist, Martinsburg, West Virginia, for Appellant. William 

J. Ihlenfeld, II, United States Attorney, John C. Parr, 

Assistant United States Attorney, Wheeling, West Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

David Lee Kidd pled guilty to conspiracy to distribute 

Schedule II controlled substances, 21 U.S.C. § 846 (2006), 

conspiracy to commit money laundering, 18 U.S.C.A. § 1956(h) 

(West Supp. 2013), and contempt, 18 U.S.C. § 402 (2006). He was 

sentenced to a term of 262 months’ imprisonment. Kidd appeals 

his sentence, contending that the district court clearly erred 

when it found that he possessed a firearm during a drug offense.*

 

U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2011). We 

affirm.

Kidd was one of the leaders in a conspiracy that 

obtained oxycodone and other prescription medications from pain 

clinics in Florida and sold them in West Virginia and eastern 

Ohio in 2010 and 2011. The conspiracy involved a large number 

of conspirators who engaged in buying pills, distributing pills, 

collecting money from distributors, and laundering profits, 

often at casinos. In March 2011, Kidd and his lieutenant, Chris 

Grigg, were stopped for speeding near Orlando, Florida, and were 

found to be in possession of over 6000 oxycodone pills, 294 

Xanax pills, and over $13,500 in cash. Search warrants were 

subsequently executed at properties occupied by Kidd in Martins 

 * Although the cases are consolidated for appeal, Kidd 

raises no issue with respect to his contempt conviction.
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Ferry, Ohio, and Grigg in Bridgeport, Ohio. From a safe in 

Grigg’s residence, law enforcement officers seized 279 oxycodone 

pills, about $3000 in cash, and six firearms. From a safe in 

Kidd’s residence, they seized 1551 oxycodone pills, over $43,000 

in cash, and a loaded Harrington and Richardson .32 caliber 

revolver, as well as ledgers showing money owed to him by coconspirators and two CDs of MRIs used by conspirators to doctorshop in Florida. In August 2011, Kidd was released on bond. He 

absconded and was apprehended almost two weeks later in 

Oklahoma, which resulted in a separate charge of contempt.

Kidd objected in the district court to the two-level 

increase recommended in the presentence report for possession of 

a firearm during the offense. He asserted that he obtained the 

gun from a friend for target practice and put it in the safe 

after it jammed. At the sentencing hearing, Drug Enforcement 

Agent Robert Manchas testified for the government about the 

investigation, Kidd’s arrest, and finding the gun in Kidd’s 

safe. Defense counsel argued that, because the safe was a large 

one and the contents had fallen off the shelves when it was 

moved, it was unclear whether the gun was in close proximity to 

the drugs and cash within the safe before the safe was moved. 

Counsel argued that the loaded gun might have been in the safe 

without having any relation to the evidence of drug trafficking 

also kept in the safe. 
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The district court found that the dangerous weapon 

enhancement was applicable. The court found that the safe was 

not comparable to a large closet and that the gun was kept in 

close proximity to drugs, cash, MRIs used in the conspiracy, and 

ledgers showing amounts of money owed to Kidd for drugs fronted 

to others. The court determined that it was not clearly 

improbable that the gun was connected to the offense, and was 

instead probable or likely that the gun was connected to the 

offense. 

Sentences are reviewed for procedural and substantive 

reasonableness under an abuse of discretion standard. Gall v. 

United States, 552 U.S. 38, 51 (2007). Miscalculation of the 

Guidelines range is a significant procedural error. Id. A twolevel increase is authorized under USSG § 2D1.1(b)(1) if “a 

dangerous weapon (including a firearm) was possessed” during the 

commission of the offense of conviction, “unless it is clearly 

improbable that the weapon was connected to the offense.” 

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

(quoting USSG § 2D1.1 cmt. n.3). “[P]ossession of the weapon 

during the commission of the offense is all that is needed to 

invoke the enhancement.” United States v. Harris, 128 F.3d 850, 

852 (4th Cir. 1997). The defendant has the burden of showing 

that a connection between his possession of a firearm and his 

drug offense is “clearly improbable.” Slade, 631 F.3d at 189. 
6

We conclude that the district court’s factual finding 

that Kidd possessed a dangerous weapon during the offense, which 

we review for clear error, United States v. McAllister, 272 F.3d 

228, 234 (4th Cir. 2001), is not clearly erroneous. Kidd’s 

argument to the contrary is not persuasive. United States v. 

Manigan, 592 F.3d 621, 629 (4th Cir. 2010). The district court 

did not clearly err in finding that the government met its 

burden of proof and that Kidd failed to establish that his

possession of a firearm during his drug trafficking was clearly 

improbable.

We therefore affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED