UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 04-4009

RANDY GREENE,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, District Judge.

(CR-03-126)

Submitted: May 26, 2004

Decided: September 24, 2004

Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Mary Lou Newberger, Federal Public Defender, Megan J. Schueler,

Assistant Federal Public Defender, Charleston, West Virginia, for

Appellant. Kasey Warner, United States Attorney, W. Chad Noel,

Assistant United States Attorney, Charleston, West Virginia, for

Appellee. 

Vacated by Supreme Court, March 7, 2005
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Randy Greene pled guilty to possession of methamphetamine with

intent to distribute, 21 U.S.C. § 841(a) (2000), and was sentenced to

a term of seventy-eight months imprisonment. He appeals his sentence, contending that the district court clearly erred in making a twolevel enhancement for possession of a weapon during the offense pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2003).

We affirm.1

Greene sold marijuana and methamphetamine to an undercover

state trooper at the car dealership where Greene worked. After Greene

sold methamphetamine at his home to a confidential informant, a

search warrant was executed at Greene’s residence. A total of 11.838

grams of methamphetamine and 40 grams of marijuana were recovered, as well as Diazepam, Clonazepam, methadone, and Oxazepam.2

Six shotguns and seven rifles were found in gun cabinets located in

the living room and bedroom. 

Greene maintained that it was clearly improbable that his firearms

were connected with his drug sales because the guns were unloaded,

were in locked display cabinets, and were of the type normally used

for sporting and hunting. See USSG § 2D1.1, comment. (n.3) (adjustment should be made if weapon was present "unless it is clearly

improbable that the weapon was connected with the offense;" e.g.,

1Greene has filed a supplemental brief in which he argues that he

should be resentenced in light of Blakely v. Washington, 124 S. Ct. 2531

(2004). We have recently held that Blakely does not invalidate a sentence

imposed under the federal sentencing guidelines. United States v. Hammoud, No. 03-4253, 2004 WL 1730309 (4th Cir. Aug. 2, 2004) (order).

Therefore, we reject his claim. 

2There was no evidence that Greene distributed the prescription drugs.

2 UNITED STATES v. GREENE
unloaded hunting rifle in closet would not warrant adjustment). He

also relied on the fact that three of the four controlled drug purchases

were made at the car dealership rather than at his home. At the sentencing hearing, Greene’s attorney informed the court that his client’s

guns were family heirlooms. 

The district court determined that the large number of firearms

present in Greene’s house could intimidate anyone who came there to

buy drugs and might be used to protect the drugs that Greene stored

in the house. The court held that Greene had not carried his burden

of showing that it was clearly improbable that the guns were connected with the offense. Because the court found that Greene had possessed a gun in connection with the offense, Greene did not meet the

criteria set out in § 5C1.2 and was not eligible for a two-level safety

valve reduction under § 2D1.1(b)(6). 

On appeal, Greene argues that the government failed to prove that

the firearms were in close proximity to the drugs in his house, that it

was clearly improbable that the firearms were connected with the

drug offense, and that the court’s error in applying the weapon

enhancement under § 2D1.1(b)(1) incorrectly precluded him from

receiving the safety valve reduction. The district court’s decision to

apply the enhancement is reviewed for clear error. United States v.

Harris, 128 F.3d 850, 852 (4th Cir. 1997). 

The government need not establish a perfect connection between

the possession of the firearm and the commission of the drug offense

before the enhancement may be made. The "enhancement under Section 2D1.1(b)(1) 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." Harris, 128 F.3d at 852

(alteration and internal quotation marks omitted). Instead, "possession

of the weapon during the commission of the offense is all that is

needed to invoke the enhancement." United States v. Apple, 962 F.2d

335, 338 (4th Cir. 1992); accord United States v. McAllister, 272 F.3d

228, 234 (4th Cir. 2001) ("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 HarUNITED STATES v. GREENE 3
ris, 128 F.3d at 852 (noting that "the proximity of guns to illicit narcotics can support a district court’s enhancement of a defendant’s

sentence under Section 2D1.1(b)(1)"). 

Greene’s argument that the government failed to prove that the

firearms in his home were in close proximity to the drugs found there

is unavailing. The test requires nothing more than that the guns be

located in the same place where drugs are stored or distributed. Harris, 128 F.3d at 852 (citing United States v. Nelson, 6 F.3d 1049, 1056

(4th Cir. 1993)). 

Greene argues that the court committed clear error in finding that

it was not clearly improbable that the firearms were connected to the

drug offense because (1) he did not possess a firearm during the controlled buys at the car dealership, and (2) the firearms were hunting

weapons and were in locked gun cabinets. However, these facts alone

do not make it clearly improbable that the firearms were connected

with Greene’s drug dealing. The guns were not kept in a closet, as in

the example given in Application Note 3, but in full sight. Greene

stored drugs in his house, and the presence of the guns, whether or

not they were loaded, could act as a deterrent to potential thieves.

Greene did not claim that he or anyone in his family used the guns

for hunting or sport. Because Greene had only a weak case to support

his "clearly improbable" theory and he possessed thirteen firearms

during a drug transaction in the place where the transaction was carried out, we conclude that the district court did not clearly err in

applying the enhancement. 

Given the court’s factual finding that Greene had possessed a firearm in connection with the offense, the court necessarily found that

Greene did not meet the criteria for a safety valve reduction under

§ 2D1.1(b)(1) and § 5C1.2. This determination was not clearly erroneous. United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997)

(stating standard of review). 

We therefore affirm the sentence imposed by the district court. 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

4 UNITED STATES v. GREENE