UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4872

CALVIN FONVILLE, a/k/a Cal,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge.

(CR-95-49)

Submitted: May 26, 1998

Decided: June 19, 1998

Before MICHAEL and MOTZ, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jon M. Babineau, DOYLE & BABINEAU, P.L.L.C., Norfolk, Virginia, for Appellant. Helen F. Fahey, United States Attorney, Kevin

M. Comstock, Assistant United States Attorney, Norfolk, Virginia,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Calvin Fonville was convicted following a jury trial of conspiracy

to distribute and to possess with the intent to distribute crack cocaine

in violation of 21 U.S.C. §§ 841(a)(1), 846 (1994), distribution and

possession with intent to distribute crack cocaine in violation of 21

U.S.C. § 841(a)(1), using or carrying a firearm during and in relation

to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)

(1994) (current version at 18 U.S.C.A. § 924(c)(1) (West Supp.

1998)), and possession of firearms and ammunition by a convicted

felon in violation of 18 U.S.C. § 922(g)(1) (1994). On appeal, Fonville contended, inter alia, that in light of Bailey v. United States, 516

U.S. 137 (1995), the evidence was insufficient to support his § 924(c)

conviction. We vacated Fonville'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. Fonville, No. 95-5798(L)

(4th Cir. May 30, 1997) (unpublished). The district court resentenced

Fonville, enhancing his conspiracy conviction under USSG

§ 2D1.1(b)(1) for possession of a firearm. On appeal, Fonville challenges the district court's application of the sentencing enhancement.

Finding no error, we affirm.

Fonville contends that the evidence was insufficient to prove

actual, constructive, or joint possession of a firearm while engaged in,

or in furtherance of, the conspiracy. He also contends that because he

was acquitted of two other firearms offenses and because this Court

vacated his § 924(c) conviction, there was no other evidence to support the enhancement.

We review the district court's factual finding regarding possession

of a dangerous weapon during the commission of a narcotics offense

for clear error. See United States v. Kimberlin , 18 F.3d 1156, 1160

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(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 Cir. 1992). A firearms enhancement is permissible if

possession of the firearm by a co-conspirator was reasonably foreseeable to the defendant. See Kimberlin, 18 F.3d at 1160. 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 trial transcript reveals that Fonville was a member of a drug

organization that operated out of various residences and motel rooms

and shared access to a weapons cache. Law enforcement officials

conducted a search of a house from which the organization was operating, and discovered five firearms, 2.1 grams of crack cocaine, and

drug paraphernalia. Fonville went to the residence often and was at

the residence when the search was conducted. The firearms were kept

at the residence for protection, and Fonville had access to the firearms. Further, Fonville was observed by one witness trading a firearm

for drugs. We find that the district court's application of

§ 2D1.1(b)(1) was not clearly erroneous.

Accordingly, we affirm Fonville'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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