PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 08-4292

KENNETH MANIGAN,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Spartanburg.

Henry M. Herlong, Jr., Senior District Judge.

(7:07-cr-00832-HMH-1)

Argued: October 30, 2009

Decided: January 26, 2010

Before MICHAEL, KING, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Agee joined. Judge Michael wrote a separate opinion concurring in part and dissenting in part.

COUNSEL

ARGUED: Joseph Bradley Bennett, SALVINI & BENNETT, LLC, Greenville, South Carolina, for Appellant. William J. Watkins, Jr., OFFICE OF THE UNITED STATES

ATTORNEY, Greenville, South Carolina, for Appellee. ON
BRIEF: Jessica Salvini, SALVINI & BENNETT, LLC,

Greenville, South Carolina, for Appellant. W. Walter Wilkins,

United States Attorney, Columbia, South Carolina, E. Jean

Howard, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Greenville, South Carolina,

for Appellee.

OPINION

KING, Circuit Judge:

Kenneth Manigan pursues this appeal from his sentence in

the District of South Carolina on three convictions for possession with intent to distribute cocaine, in contravention of 21

U.S.C. § 841(a)(1). Two contentions are presented for our

consideration. First, the Government maintains that Manigan

waived his right of appeal, precluding our review of any

assertion of sentencing error. Second, Manigan contends that

he is entitled to be resentenced because the district court erroneously enhanced his sentence, pursuant to section

2D1.1(b)(1) of the Sentencing Guidelines, for the specific

offense characteristic of possession of a dangerous weapon.

As explained below, we reject the proposition that Manigan

waived his right of appeal. On the merits, we deny Manigan’s

sentencing contention and affirm.

I.

A.

Manigan’s sentence is predicated on his involvement in

three drug offenses that occurred between April and June

2007. On April 4, 2007, a confidential informant (the "CI")

was arrested in Spartanburg, South Carolina, in possession of

approximately 4.5 ounces of cocaine.1 The CI immediately

1The facts spelled out herein are largely drawn from Manigan’s Presentence Investigation Report, which the sentencing court adopted, supple2 UNITED STATES v. MANIGAN
cooperated with the authorities and identified Manigan as his

drug supplier, advising them that he owed Manigan for nine

ounces of cocaine. The following day, April 5, 2007, the CI

met with Manigan in the front yard of the residence at 202

Charlesworth Avenue in Spartanburg.2 After a brief conversation, the two men entered the CI’s car, where the CI paid

Manigan $5600 in cash for the nine ounces of cocaine.

Thereafter, on May 26, 2007, the CI advised the authorities

that Manigan had phoned that morning to arrange a meeting

for the delivery of approximately 4.5 ounces of cocaine. As

a result, Manigan and the CI soon met in the parking lot of

a CVS Pharmacy on Union Street in Spartanburg. While

there, Manigan "fronted" the CI 124.56 grams of cocaine.3

Four days later, on May 30, 2007, the CI called Manigan to

arrange for payment of the fronted cocaine. The two men met

outside the residence at 202 Charlesworth Avenue, where the

CI paid Manigan $2800 in cash for the fronted cocaine.

Finally, on June 11, 2007, the CI again called Manigan and

asked him to front two ounces of cocaine. Manigan agreed

and sent "Tom Boy," one of his colleagues, to deliver 57.5

grams of cocaine to the CI, in exchange for $1700 in cash to

be paid when the cocaine was sold. On June 13, 2007, Manigan and the CI agreed to meet at a residence on Pennwood

Drive in Spartanburg so that the CI could pay Manigan. After

mented by relevant aspects of the record. See J.A. 60, 74–88. (Citations

herein to "J.A. ___" refer to the contents of the Joint Appendix filed by

the parties in this appeal.) 

2The Presentence Investigation Report identifies Manigan’s address as

202 Charlesworth Avenue, Spartanburg, SC 29306. Manigan’s mother

may have owned that property. 

3

"Fronting" is the common practice of a drug supplier delivering illegal

drugs to a dealer on consignment. In a fronting transaction, the drug dealer

receives the drugs up front and pays his supplier later, after the drugs have

been sold on the street. See United States v. Scheetz, 293 F.3d 175, 179

n.1 (4th Cir. 2002). 

UNITED STATES v. MANIGAN 3
obtaining $1700 in cash from the authorities, the CI drove to

the Pennwood Drive residence. Manigan was waiting inside

and the CI gave Manigan the money.

On June 20, 2007, the authorities executed a search warrant

at 202 Charlesworth Avenue. In the back right bedroom of the

residence, the agents found two shoe boxes. One shoe box,

found on the right side of the bed, contained two handguns,

which the agents seized.4 One of the seized firearms was later

determined to be stolen. The second shoe box, found near

where the handguns were seized, contained "various papers

addressed to Manigan at 202 Charlesworth Avenue." J.A. 78.

The federal agents also searched a 1990 Chevrolet Caprice

located at the residence and seized a bag containing 3.26

grams of cocaine from under the driver’s seat. Manigan was

the registered owner of the Caprice. Manigan was arrested

that very day in possession of 32.05 grams of marijuana, 6.70

grams of crack cocaine, and $9520 in cash.5 During an interview with the authorities on June 27, 2007, and again at sentencing, Manigan admitted that the seized handguns were his.

B.

On July 10, 2007, the grand jury in Spartanburg returned a

three-count indictment against Manigan, each count charging

possession with intent to distribute cocaine, in contravention

of 21 U.S.C. § 841(a)(1). On October 23, 2007, Manigan

pleaded guilty to all three counts. In the plea agreement

between Manigan and the Government (the "Plea Agreement"), Manigan agreed, inter alia, to

4The Presentence Investigation Report does not indicate whether either

of the two handguns seized from the residence at 202 Charlesworth Avenue was loaded. 

5Manigan’s counsel acknowledged at oral argument that Manigan’s

June 20, 2007 arrest occurred at the 202 Charlesworth Avenue residence.

The Government’s counsel was unable to confirm this concession, nor

does the record clearly support it. We do not rely on the concession. 

4 UNITED STATES v. MANIGAN
waive[ ] the right to contest either the conviction or

the sentence in any direct appeal or other postconviction action. 

J.A. 49. At the completion of his plea hearing, however, the

district court advised Manigan, without objection, that "[o]nce

you are sentenced, you and the Government may have a right

to appeal this sentence." Id. at 30.

After Manigan’s guilty pleas, the probation officer calculated Manigan’s Guidelines range as 151 to 188 months,

premised on an offense level of 29 and a criminal history category of VI. The Presentence Investigation Report (the

"PSR") arrived at this offense level by starting with a base

offense level of 26 and then recommending a two-level

enhancement, pursuant to section 2D1.1(b)(1) of the Guidelines, for the specific offense characteristic of possession of

a dangerous weapon (the "weapon enhancement"), which

resulted in an adjusted offense level of 28.6 Because Manigan

qualified as a career offender, however, the PSR enhanced his

offense level to 32. See USSG § 4B1.1. Finally, the PSR subtracted three levels for acceptance of responsibility, resulting

in a total offense level of 29. See id. § 3E1.1.

On January 28, 2008, Manigan filed a written objection to

the PSR’s references to firearm possession and to application

of the weapon enhancement. His contention did not directly

relate, however, to the essential nexus between the seized firearms and his offense conduct. Instead, Manigan challenged

only the PSR’s reference to his ownership of the firearms.

More specifically, Manigan claimed that he admitted such

6Manigan was sentenced under the 2007 edition of the Guidelines. Section 2D1.1(b)(1) is found in Chapter Two of the Guidelines, entitled "Offense Conduct." Subsections of Chapter Two describe "specific offense

conduct" that can impact a defendant’s offense level. One of the "specific

offense characteristics" applicable to drug-trafficking offenses provides

that, "[i]f a dangerous weapon (including a firearm) was possessed,

increase [the offense level] by 2 levels." USSG § 2D1.1(b)(1). 

UNITED STATES v. MANIGAN 5
ownership as part of an immunized proffer he had made to the

prosecutors, arguing that such circumstances precluded the

sentencing court from using the ownership admission against

him. The probation officer responded that the authorities had

independently established Manigan’s ownership of the two

firearms prior to any such proffered admission and that, as a

result, the PSR’s recommended application of the weapon

enhancement was appropriate. 

Manigan first objected to the nexus aspect of the weapon

enhancement at his sentencing hearing on February 28, 2008.

More specifically, Manigan orally contended that the Government had failed to establish that the handguns seized at 202

Charlesworth Avenue were sufficiently related to his offenses

of conviction. The Government countered that the PSR properly recommended the weapon enhancement. The prosecutors

emphasized that (1) cocaine was found in Manigan’s car during the search at the Charlesworth Avenue residence, and (2)

the authorities had observed Manigan proceed directly from

the Charlesworth Avenue residence to other locations where

he engaged in fronting transactions. 

At the conclusion of the sentencing hearing, the district

court adopted "the findings including the guideline calculations contained in the [PSR]," thus overruling Manigan’s

objection to the weapon enhancement. J.A. 60. The court then

determined Manigan to be a career offender, calculated his

advisory Guidelines range as 151 to 188 months, and sentenced him to concurrent terms of 169 months on each of his

three convictions, followed by three years of supervised

release. Notably, the district court concluded the sentencing

proceedings by again advising Manigan that he "ha[d] the

right to appeal this sentence." Id. at 66. Manigan has filed a

timely notice of appeal, and we possess jurisdiction pursuant

to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

II.

The issue of whether a defendant has waived his right of

appeal in connection with a plea proceeding "is a matter of

6 UNITED STATES v. MANIGAN
law that we review de novo." United States v. Brown, 232

F.3d 399, 403 (4th Cir. 2000). In assessing whether a district

court has properly applied the Guidelines — including the

application of an enhancement — "we review the district

court’s legal conclusions de novo and its factual findings for

clear error." United States v. Layton, 564 F.3d 330, 334 (4th

Cir. 2009). The question of whether a defendant, as a specific

offense characteristic, possessed a dangerous weapon for purposes of the weapon enhancement is a factual determination

subject to clear error review. See United States v. Rusher, 966

F.2d 868, 880 (4th Cir. 1992). 

III.

The Government’s primary contention in this proceeding is

that we need not address the merits of Manigan’s appeal,

because the Plea Agreement’s appellate waiver mandates dismissal. Manigan’s sole appellate contention is that the district

court erred in its application of the weapon enhancement. We

assess these contentions in turn.

A.

We first analyze the Government’s assertion that this

appeal must be dismissed because Manigan waived his right

of appeal. The Government contends that the Plea Agreement’s plain and unambiguous terms, coupled with Manigan’s

plea colloquy representation that he had discussed the Agreement with his attorney and understood its terms, demonstrate

that Manigan knowingly and intelligently waived his right of

appeal.7

7The waiver provision of the Plea Agreement, on which the Government relies for its contention that Manigan’s appeal must be dismissed, is

in Paragraph 14, which states as follows: 

The Defendant is aware that 18 U.S.C. § 3742 and 28 U.S.C.

§ 2255 afford every defendant certain rights to contest a conviction and/or sentence. Acknowledging those rights, the Defendant,

UNITED STATES v. MANIGAN 7
We have heretofore recognized that a defendant can,

through a plea agreement, waive his appellate rights. See

United States v. Poindexter, 492 F.3d 263, 267–68 (4th Cir.

2007). And we will enforce such a waiver if it is valid and if

the issue sought to be appealed is within its scope. See United

States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appellate waiver is valid if the defendant knowingly and intelligently agreed to it. See id. at 169. Whether a defendant

knowingly and intelligently agreed to waive his right of

appeal "must be evaluated by reference to the totality of the

circumstances." See United States v. General, 278 F.3d 389,

400 (4th Cir. 2002).

An important factor in such an evaluation is whether the

district court sufficiently explained the waiver to the defendant during the Federal Rule of Criminal Procedure 11 plea

colloquy. See General, 278 F.3d at 400. Indeed, Rule 11 specifically mandates that a district court, before accepting a plea

of guilty, 

inform the defendant of, and determine that the

defendant understands, . . . the terms of any pleaagreement provision waiving the right to appeal or to

collaterally attack the sentence.

Fed. R. Crim. P. 11(b)(1)(N). Although a district court’s failure to strictly abide by Rule 11 will not alone render an appelin exchange for the concessions made by the Government in this

Plea Agreement, waives the right to contest either the conviction

or the sentence in any direct appeal or other post-conviction

action, including any proceedings under 28 U.S.C. § 2255. This

waiver does not apply to claims of ineffective assistance of counsel or prosecutorial misconduct. This Agreement does not affect

the rights or obligations of the Government as set forth in 18

U.S.C. § 3742(b). Nor does it limit the Government in its comments in or responses to any post-sentencing matters. 

J.A. 49. 

8 UNITED STATES v. MANIGAN
late waiver unenforceable, see General, 278 F.3d at 400, "a

waiver is not knowingly or voluntarily made if the district

court fails to specifically question the defendant concerning

the waiver provision of the plea agreement during the Rule 11

colloquy and the record indicates that the defendant did not

otherwise understand the full significance of the waiver,"

United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).

After carefully assessing the relevant record, we are not

convinced that Manigan’s appellate waiver should be

enforced. During the Rule 11 proceeding, the district court

established that Manigan was a high school graduate who had

attended two years of college, and it ascertained that he had

discussed the Plea Agreement with his counsel and understood its provisions. Although these circumstances suggest

that Manigan should have understood the appeal waiver, see

General, 278 F.3d at 400, the balance of the plea colloquy

fatally taints the waiver’s enforceability, see Marin, 961 F.2d

at 496. First, the court never specifically mentioned the

waiver provision or questioned Manigan on it. In fact, contrary to the Plea Agreement, the court advised Manigan that

he would be able to appeal his sentence. Moreover, the prosecutors interposed no objection to the court’s advice to Manigan that he could appeal, and they failed to inform the court

that the Plea Agreement contained the waiver provision.

Simply put, we are unable in these circumstances to enforce

the appellate waiver. When a district court has advised a

defendant that, contrary to the plea agreement, he is entitled

to appeal his sentence, the defendant can hardly be said to

have knowingly waived his right of appeal. See United States

v. Zink, 107 F.3d 716, 718 (9th Cir. 1997) (concluding that

waiver was neither knowing nor voluntary where court

advised defendant, without objection, that he had right to

appeal); United States v. Ready, 82 F.3d 551, 557–58 (2d Cir.

1996) (allowing defendant to appeal sentence despite appellate waiver because court incorrectly advised defendant of

right to appeal sentence); see also United States v. Wood, 378

UNITED STATES v. MANIGAN 9
F.3d 342, 349 (4th Cir. 2004) (determining that defendant did

not knowingly waive right to appeal, in part because court

mischaracterized plea agreement’s material terms during plea

colloquy). It is worthy of emphasis that, in these Rule 11 proceedings, there was simply no discussion of the waiver issue.

See United States v. Wessells, 936 F.2d 165, 168 (4th Cir.

1991) (concluding that waiver was not voluntary, in part

because sentencing court failed to question defendant concerning waiver provision). Finally, this problem was compounded three months later, at the conclusion of Manigan’s

sentencing hearing, when the court again advised Manigan

that he "ha[d] the right to appeal this sentence." J.A. 66. In

these circumstances, the waiver contention interposed by the

Government must be rejected.

Having declined to dismiss Manigan’s appeal on the basis

of the Government’s waiver contention, we must turn to the

merits of his appeal — the issue of whether the district court

erred when it increased his offense level by applying the

weapon enhancement.

B.

1.

Section 2D1.1 of the Sentencing Guidelines establishes the

base offense level for narcotics offenses, including the 21

U.S.C. § 841(a)(1) offense on which Manigan was thrice convicted. See USSG § 2D1.1(a). Subsection (b) of section 2D1.1

identifies several "Specific Offense Characteristics" that,

when applicable, warrant an offense-level enhancement. See

id. § 2D1.1(b). The specific offense characteristic implicated

in this appeal provides that, "[i]f a dangerous weapon (including a firearm) was possessed," the sentencing court is to "increase by 2 levels" the offense level. Id. § 2D1.1(b)(1). 

The relevant Application Notes provide that the weapon

enhancement "should be applied if the weapon was present,

10 UNITED STATES v. MANIGAN
unless it is clearly improbable that the weapon was connected

with the offense." USSG § 2D1.1 cmt. n.3. As Judge Wilkins

explained, the Government must prove by a preponderance of

the evidence that "the weapon was possessed in connection

with drug activity that was part of the same course of conduct

or common scheme as the offense of conviction." United

States v. McAllister, 272 F.3d 228, 233–34 (4th Cir. 2001)

(internal quotation marks omitted). To satisfy that burden,

however, the Government does not need to prove "precisely

concurrent acts," such as a "gun in hand while in the act of

storing drugs." United States v. Johnson, 943 F.2d 383, 386

(4th Cir. 1991). Rather, proof of constructive possession of

the dangerous weapon is sufficient, and the Government is

entitled to rely on circumstantial evidence to carry its burden.

See United States v. Miggins, 302 F.3d 384, 391 (6th Cir.

2002); United States v. Hall, 46 F.3d 62, 64 (11th Cir. 1995).

In assessing whether a defendant possessed a firearm in

connection with relevant drug activity, a sentencing court is

entitled to consider several pertinent factors. One important

factor is the type of firearm involved. See United States v.

Drozdowski, 313 F.3d 819, 822 (3d Cir. 2002) (identifying

type of firearm as relevant to application of weapon enhancement). As Judge Wilkinson explained in United States v. Harris, 128 F.3d 850, 853 (4th Cir. 1997), and as the Guidelines

emphasize, see USSG § 2D1.1(b)(1) cmt. n.3, an unloaded

hunting rifle is a firearm that would not be readily connected

to drug activities. A handgun, on the other hand, has been

deemed "a tool of the drug trade because it is easy to conceal

yet deadly." United States v. Cantero, 995 F.2d 1407, 1411

(7th Cir. 1993) (internal quotation marks and alteration omitted); see also United States v. Ward, 171 F.3d 188, 195 (4th

Cir. 1999) (observing that handguns are "indicia of drug dealing"). More specifically, a drug trafficker is much more likely

to utilize a handgun — as opposed to a rifle or long gun —

due to size and concealability. See United States v. Lipford,

203 F.3d 259, 267 n.7 (4th Cir. 2000) ("When a gun is

UNITED STATES v. MANIGAN 11
involved in criminal activity, it is far more likely to be a handgun than a rifle."). 

The location or proximity of a seized firearm is also relevant to a sentencing court’s analysis of whether it was possessed in connection with drug activities that were part of the

same course of conduct or common scheme as the offense of

conviction. Indeed, "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)." Harris, 128 F.3d at 852.

Similarly, firearms that are readily accessible during drug

activities can be deemed as possessed in connection therewith. See United States v. Corral, 324 F.3d 866, 873 (7th Cir.

2003) ("[G]uns found in close proximity to drug activity are

presumptively connected to that activity."); Drozdowski, 313

F.3d at 823 (discussing accessibility as relevant factor). If a

drug offender has stored a handgun that can readily be

accessed if his drug activities turn sour, he may be said to

have possessed it in connection with such activities. Cf.

United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002)

(recognizing that readily accessible firearm suggests close

nexus between drug activities and firearm possession). In

short, as one of our sister circuits has explained, so long as a

firearm’s "location makes it readily available to protect either

the participants themselves during the commission of the illegal activity or the drugs and cash involved in the drug business, there will be sufficient evidence to connect the

weapon[ ] to the offense conduct." United States v. Corcimiglia, 967 F.2d 724, 727 (1st Cir. 1992).

Importantly, a sentencing court faced with whether to apply

the weapon enhancement is entitled to take reasonable

account of the settled connection between firearms and drug

activities. As the Guidelines commentary explains, the

weapon enhancement "reflects the increased danger of violence when drug traffickers possess weapons." USSG § 2D1.1

cmt. n.3. And, under our precedent, "drugs and guns form a

lethal combination that can lead to violence," Harris, 128

12 UNITED STATES v. MANIGAN
F.3d at 852, especially when substantial drug trafficking is

involved, see United States v. Kennedy, 32 F.3d 876, 882 (4th

Cir. 1994) ("[T]he law has uniformly recognized that substantial dealers in narcotics possess firearms . . . ." (internal quotation marks omitted)). As another court of appeals emphasized,

"substantial dealers in narcotics keep firearms on their premises as tools of the trade." United States v. Wiener, 534 F.2d

15, 18 (2d Cir. 1976). Thus, a sentencing court might reasonably infer, in the proper circumstances, that a handgun seized

from the residence of a drug trafficker was possessed in connection with his drug activities.8

2.

Manigan’s sole appellate contention is that the Government

failed to satisfy its burden of proof in support of the weapon

enhancement. Although he concedes ownership of the handguns seized from the back right bedroom of the Charlesworth

Avenue residence, Manigan maintains that the Government

failed to sufficiently prove that he possessed those weapons

in connection with his drug activities.9 The pertinent facts,

8

If the Government satisfies its burden of proving possession of a

weapon in connection with drug activities, the defendant is entitled to persuade the sentencing court that the weapon enhancement is inapplicable.

He may do so by showing that it was "clearly improbable" that the weapon

was connected with his drug activities. See, e.g., United States v. Bothun,

424 F.3d 582, 586 (7th Cir. 2005) ("If the government [proves by a preponderance of the evidence that the defendant possessed the weapon], the

burden shifts to the defendant to show that it was ‘clearly improbable’ that

the weapon was connected to the offense."); United States v. Heckard, 238

F.3d 1222, 1233 (10th Cir. 2001); United States v. Calhoun, 49 F.3d 231,

236 (6th Cir. 1995); Hall, 46 F.3d at 63; Corcimiglia, 967 F.2d at 727–28.

When the government satisfies its burden, however, and if the defendant

fails to make the "clearly improbable" showing, the weapon enhancement

may properly be applied. See Harris, 128 F.3d at 853. 

9Manigan has not further pursued the immunity contention he raised in

the district court with respect to his proffer of handgun ownership. For our

purposes, therefore, he owned both of the handguns seized from the Charlesworth Avenue residence. 

UNITED STATES v. MANIGAN 13
Manigan emphasizes, fail to show "that [he] utilized the firearms during his drug activity." Br. of Appellant 11. This

assertion misses the point, however, because it was not necessary for Manigan to have actually "utilized" the seized handguns during an observed and prosecuted drug transaction.

Rather, the Government’s burden was to prove, by a preponderance of the evidence, that Manigan possessed the handguns "in connection with drug activity that was part of the

same course of conduct or common scheme as the offense of

conviction." McAllister, 272 F.3d at 233-34. 

Our resolution of this appellate contention implicates a circumstantial evidence issue, and the sentencing court’s application of the weapon enhancement presents a relatively close

question. Cf. McAllister, 272 F.3d at 233–34 (deeming

weapon enhancement inapplicable where only evidence of

possession was witness’s statement); United States v. Nelson,

6 F.3d 1049, 1056 (4th Cir. 1993) (affirming weapon

enhancement when handguns found in dwelling where drugs

seized); United States v. Rusher, 966 F.2d 868, 880 (4th Cir.

1992) (affirming weapon enhancement when drugs and handgun seized from same briefcase). This issue, however — even

if it could have been resolved differently — is reviewed only

for clear error, see Harris, 128 F.3d at 852, and the trial

court’s fact-finding in support of the enhancement is entitled

to appropriate deference, see 18 U.S.C. § 3742(e) ("The court

of appeals . . . shall accept the findings of fact of the district

court unless they are clearly erroneous . . . ."). 

Applying a clear error standard, we "will not reverse a

lower court’s finding of fact simply because we would have

decided the case differently." Easley v. Cromartie, 532 U.S.

234, 242 (2001) (internal quotation marks omitted). According to the Supreme Court, we can find clear error only if, "‘on

the entire evidence,’ [we are] ‘left with the definite and firm

conviction that a mistake has been committed.’" Id. (quoting

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

We have identified clear error when we have determined that,

14 UNITED STATES v. MANIGAN
"without regard to what the actual facts may be, the findings

under review . . . are not supported by substantial evidence."

Stanley v. Hejirika, 134 F.3d 629, 633 (4th Cir. 1998) (internal quotation marks omitted); see United States v. Whorley,

550 F.3d 326, 338 (4th Cir. 2008) (defining "substantial evidence" as "evidence that a reasonable finder of fact could

accept as adequate and sufficient to support" the finding under

review).

Because the Government bore the burden — by a preponderance — of showing that the weapon enhancement was

appropriate, see United States v. Urrego-Linares, 879 F.2d

1234, 1238 (4th Cir. 1989), we must be mindful of what that

burden entails. As the Supreme Court has explained, "[t]he

burden of showing something by a preponderance of the evidence . . . simply requires the trier of fact to believe that the

existence of a fact is more probable than its nonexistence."

Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993) (internal quotation marks omitted). 

Thus, our task in analyzing the weapon enhancement’s

applicability is somewhat comparable to the appellate review

of a jury verdict in a civil case: we must affirm if there was

substantial evidence to support the finding that it was more

probable than not that Manigan possessed the handguns

seized at 202 Charlesworth Avenue in connection with the

common scheme or plan of his drug activities. In making that

assessment, the following pertinent facts were either expressly

found by the PSR and the sentencing court, or could reasonably be inferred from the facts so found:

• Predicated on the large quantities of drugs that

Manigan fronted, he was a substantial drug supplier in the Spartanburg area;

• Manigan resided at 202 Charlesworth Avenue,

where portions of his April and May drug transUNITED STATES v. MANIGAN 15
actions occurred. And the authorities observed

Manigan travel directly from the residence to

other locations where he engaged in drugfronting transactions. The Charlesworth Avenue

residence was thus central to the common scheme

or plan relating to Manigan’s drug activities;

• During the search of June 20, 2007, cocaine was

seized from Manigan’s Caprice on the Charlesworth Avenue property and the two handguns

were seized from the back right bedroom of the

residence, where his personal papers were also

found;

• The handguns were seized from a shoebox on the

right side of the bed and were thus readily accessible to an occupant of the residence; and 

• When Manigan was arrested on June 20, 2007, he

possessed on his person substantial quantities of

marijuana and crack cocaine, plus nearly $10,000

in cash. 

The proximity — or lack thereof — between the two handguns and the drugs seized from Manigan’s person and his

Caprice is the strongest contention that he can muster against

application of the weapon enhancement, and Manigan understandably emphasizes it. But see United States v. Hall, 473

F.3d 1295, 1312 (10th Cir. 2007) (concluding weapon was

connected to drug activities where shotgun was stored in

defendant’s car and drug paraphernalia was found in his residence); United States v. Almonte, 952 F.2d 20, 21–22 (1st Cir.

1991) (affirming application of weapon enhancement where

cocaine was stored in defendant’s residence and handgun was

seized from his store, located across street from residence).

Whether there was, in this case, sufficient proximity between

the handguns and the drugs is a factual issue, and the location

of the seized handguns, in the context of Manigan’s drug

16 UNITED STATES v. MANIGAN
activities, does not preclude the court’s application of the

weapon enhancement. See Corral, 324 F.3d at 873 ("[G]uns

found in close proximity to drug activity are presumptively

connected to that activity."). It is sufficient that the firearms

were seized from the location — 202 Charlesworth Avenue

— that was the focal point of Manigan’s drug fronting transactions, and the handguns could be deemed readily accessible

to him. In addition, unlike the possession of an unloaded hunting rifle, Manigan possessed two handguns, the weapons of

choice for drug suppliers. See Ward, 171 F.3d at 195.10

Finally, Manigan was a substantial drug supplier and, as such,

was an offender who would typically possess a handgun in

connection with drug activities. See Kennedy, 32 F.3d at 882;

United States v. Hinds, 856 F.2d 438, 443 (1st Cir. 1988). 

Because the PSR recitation circumstantially supports the

district court’s application of the weapon enhancement — and

because Manigan failed to show that it was "clearly improbable" for the handguns to be connected to the common scheme

or plan surrounding his drug activities, see supra note 8 — the

district court was entitled to rule as it did.11 Thus, the court did

not clearly err, and Manigan’s appellate contention must be

rejected.12

10As noted, see supra note 4, the record does not indicate whether the

handguns were loaded when they were seized. In any event, the weapon

enhancement may properly be applied for possession of an unloaded handgun. See Harris, 128 F.3d at 853 ("[T]he mere fact that a weapon is

unloaded cannot prevent a court from enhancing a sentence under Section

2D1.1(b)(1)."). 

11We note that the district court, in determining whether to apply the

weapon enhancement, appropriately relied on the PSR, as Manigan failed

to show that the PSR was inaccurate. See United States v. Love, 134 F.3d

595, 606 (4th Cir. 1998) ("Without an affirmative showing the information

is inaccurate, the court is free to adopt the findings of the presentence

report without more specific inquiry or explanation." (internal quotation

marks and alterations omitted)). 

12Finally, the Government argues that, if the district court erroneously

applied the weapon enhancement, such error would be harmless, as the

UNITED STATES v. MANIGAN 17
IV.

Pursuant to the foregoing, we reject the Government’s

appellate waiver contention and affirm Manigan’s sentence.

AFFIRMED

MICHAEL, Circuit Judge, concurring in part and dissenting

in part: 

I concur in part III.A of the majority opinion, which holds

that Kenneth Manigan did not waive his right to appeal his

sentence. I respectfully dissent, however, from the majority’s

determination that the district court properly enhanced Manigan’s sentence under guideline § 2D1.1(b)(1) for possession

of a dangerous weapon. Manigan’s handguns were not connected to the drug crimes he committed, and the enhancement

should not apply.

Section 2D1.1(b)(1)’s weapon enhancement may be the

most frequently applied enhancement in all the guidelines.

See U.S. Sentencing Commission, Sourcebook of Federal

Sentencing Statistics tbl. 3 (2008) (listing § 2D1.1 as the most

frequently applied guideline); U.S. Sentencing Commission,

Application of Weapon Specific Offense Characteristic in

§2D1.1 Cases for Each Drug Type (2008) (enhancement

court ultimately calculated Manigan’s sentencing range on the basis of his

career offender status. See United States v. Branch, 537 F.3d 328, 343 (4th

Cir. 2008) (observing that weapon enhancement had no impact on

Branch’s sentence because court sentenced him as career offender). Manigan maintains that application of the weapon enhancement was not harmless because it precludes him from participating in the Bureau of Prison’s

drug treatment program and possibly obtaining an early release, a contention that at least one circuit has apparently found persuasive. See United

States v. Torres, 409 F.3d 1000, 1002–03 (8th Cir. 2005). Because the district court did not err in applying the weapon enhancement, however, we

need not address this assertion. 

18 UNITED STATES v. MANIGAN
applied in 2,845 out of 23,637 cases). This frequency of use

makes it imperative that the boundaries for application of the

enhancement remain clear and meaningful. Here, the majority’s error is compounded by the fact that it blurs a previously

clear boundary, leaving district courts to wonder whether any

real limitation remains. To maintain clarity, we should hold to

the purpose and scope of the enhancement as recognized until

today. 

Section 2D1.1(b)(1) reads: "If a dangerous weapon (including a firearm) was possessed, increase by 2 levels." U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2007). Application

note 3 to § 2D1.1 describes the enhancement’s purpose and

reach:

The enhancement for weapon possession reflects the

increased danger of violence when drug traffickers

possess weapons. The adjustment should be applied

if the weapon was present, unless it is clearly

improbable that the weapon was connected with the

offense. For example, the enhancement would not be

applied if the defendant, arrested at his residence,

had an unloaded hunting rifle in the closet.

The application note confirms what is obvious from common

sense, but perhaps not from a literal reading of § 2D1.1(b)(1):

mere possession is not enough for application of the enhancement. The majority notes this limitation, citing United States

v. McAllister’s rule that the government must prove that "the

weapon was possessed in connection with drug activity that

was part of the same course of conduct or common scheme

as the offense of conviction." 272 F.3d 228, 233-34 (4th Cir.

2001) (emphasis added). Thus, for the enhancement to apply,

the government must prove not only that the defendant possessed the weapon, but also that the weapon had a role in the

offense of conviction. In the case of a gun, it need not have

been discharged, brandished, or even kept on the defendant’s

person during the offense, see United States v. Johnson, 943

UNITED STATES v. MANIGAN 19
F.2d 383, 386 (4th Cir. 1991), but it must have served the

defendant’s purpose in carrying out the drug crime for which

he was convicted. It is sufficient, for example, that the

weapon was "readily available to protect" the defendant or his

drugs, even if the defendant never specifically intended to use

it. United States v. Thongsophaporn, 503 F.3d 51, 58 (1st Cir.

2007).

Unless the defendant’s words or actions explained the

weapon’s role, proving that the § 2D1.1(b)(1) enhancement

applies will require evidence that the weapon had a temporal

and spatial nexus to the offense. United States v. Willie, 462

F.3d 892, 899 (8th Cir. 2006); United States v. Clark, 415

F.3d 1234, 1241 (10th Cir. 2005); United States v. Partida,

385 F.3d 546, 562 (5th Cir. 2004). When the defendant’s possession of the weapon is not established until long after the

offense, the temporal nexus is not satisfied. See Clark, 415

F.3d at 1242 (rejecting application of enhancement when

defendant was found in possession of gun 15 months after

offense of conviction). Similarly, when the weapon is not in

close proximity to the drugs or a drug-related transaction, the

spatial nexus is not satisfied. See United States v. Harris, 128

F.3d 850, 852 (4th Cir. 1997). In United States v. Rusher we

held that the § 2D1.1(b)(1) enhancement applied when "one

of the firearms was located in the same briefcase that contained the drugs, and the others, fully loaded, were found in

the bed of the same truck." 966 F.2d 868, 880 (4th Cir. 1992).

In United States v. Nelson we held that the enhancement

applied when guns were found with defendants in "a place of

manufacturing, storing and distributing [of] crack cocaine." 6

F.3d 1049, 1056 (4th Cir. 1993). Of course, even if a temporal

and spatial nexus exists, other evidence might establish that

it was clearly improbable that the gun had a role in the

offense. For example, even if an unloaded hunting rifle was

in a nearby closet in the defendant’s residence during a drug

transaction, the enhancement might not apply. § 2D1.1 cmt.

n.3 (2007).

20 UNITED STATES v. MANIGAN
These controlling principles prohibit the application of the

enhancement in this case because neither a temporal nor a

spatial nexus existed. The majority sees a nexus between

Manigan’s handguns and his offense because the confidential

informant gave Manigan cash for previously received drugs

outside 202 Charlesworth Avenue on April 5, 2007, and May

30, 2007. On June 20, 2007, the police executed a search warrant for Manigan’s car and the residence at that address.

Although the police found cocaine and drug paraphernalia in

Manigan’s car, nothing of that sort was found in the residence. The police did find two handguns belonging to Manigan in a shoe box inside the house.

There is no evidence that Manigan possessed the handguns

prior to June 20, 2007, the day of the search, let alone 20 days

prior on May 30, 2007, the second (and last) day the informant paid Manigan for drugs outside the residence. There is

no suggestion that the informant ever reported that there was

a gun in Manigan’s possession during the transactions. And

the government does not claim that it had a suspicion prior to

the search that Manigan possessed guns. (Neither the search

warrant nor the application is in the record.) No evidence supports a finding that the guns Manigan possessed on June 20,

2007 — which he had received from a third party and

intended to sell — were possessed on May 30, 2007.

Similarly, even assuming Manigan possessed the guns on

May 30, 2007, they were not sufficiently close to the drug

transaction to satisfy the spatial nexus requirement. Manigan

trafficked in cocaine out of his car. Only his car is present at

every face-to-face interaction with the informant, whether

outside 202 Charlesworth Avenue or in the CVS Pharmacy

parking lot. The police found drugs in Manigan’s car, not in

the residence at 202 Charlesworth Avenue. Unlike the house

in United States v. Nelson, 202 Charlesworth Avenue was not

"a place of manufacturing, storing and distributing [of] crack

cocaine." 6 F.3d at 1056. The residence belonged to Manigan’s mother, and Manigan merely lived there. The only conUNITED STATES v. MANIGAN 21
nection between the residence and Manigan’s offense is that

Manigan’s car was parked outside. Moreover, despite the

majority’s assertion to the contrary, it would amount to a legal

fiction to conclude that the guns were "readily available" to,

or "constructively possessed" by, Manigan during the drug

transactions. Cf. Arizona v. Gant, 129 S. Ct. 1710, 1718-19

(2009) (rejecting the "fiction . . . that the interior of a car is

always within the immediate control of an arrestee who has

recently been in the car") (quoting New York v. Belton, 453

U.S. 454, 466 (1981)) (emphasis in original). Had Manigan

conducted a transaction outside 202 Charlesworth Avenue

and been threatened with violence, keeping guns indoors and

hidden in a shoe box would not have provided him any protection. Accordingly, the absence of both a temporal and spatial nexus precludes the enhancement. 

The majority reaches a contrary conclusion after several

missteps, starting with the standard of review it applies. Citing Rusher, the majority states that "[t]he question of whether

a defendant, as a specific offense characteristic, possessed a

dangerous weapon . . . is a factual determination subject to

clear error review." Ante at 7. Rusher, however, says that the

general rule for reviewing a guidelines determination is a

"sliding scale" with primarily factual issues reviewed for clear

error and primarily legal issues reviewed de novo. 966 F.2d

at 880. It concludes that a finding of possession, that is, control or dominion over a weapon, is reviewed for clear error.

Id. But a finding of weapon possession is not the final step.

A determination of whether the weapon had a role in the

offense of conviction is still required. Here, pure possession,

along with the fact of the transactions themselves, is not disputed. We are left to review only whether the facts in the presentence report — adopted by the district court — require

application of the enhancement. This question is primarily

legal and should be reviewed de novo.

The majority’s next error is to place disproportionate

weight — in what is a case-specific inquiry — on the general

22 UNITED STATES v. MANIGAN
ground that handguns are associated with drugs and that there

is a "settled connection between firearms and drug activities."

Ante at 12. Indeed, the majority goes so far as to say that "a

sentencing court might reasonably infer, in proper circumstances, that a handgun seized from the residence of a drug

trafficker was possessed in connection with his drug activities." Ante at 13. Of all the cases cited by the majority in support of the association between handguns and drugs, only one

cites any empirical evidence, and that evidence supports a

strong (and obvious) correlation between handguns and

firearm-related crimes, not drug-related crimes. See United

States v. Lipford, 203 F.3d 259, 267 n.7 (4th Cir. 2000) (citing

Department of Justice, Bureau of Justice Statistics, Selected

Findings, Firearms, Crime, and Criminal Justice: Guns Used

in Crime (July 1995)). In any event, like the "settled connection between firearms and drug activities," the connection

between handguns and drugs is a reason for the inclusion of

the weapons enhancement potential in § 2D1.1(b)(1), not a

reason for relaxing the standard for determining whether a

gun was connected to a particular drug offense. More specifically, giving sentencing courts what appears to be a green

light to apply the § 2D1.1(b)(1) enhancement to every drug

dealer with a handgun in his residence will practically eliminate any limitation on the scope of the provision.

Finally, the majority errs when it concludes that the handguns had a role in the offense in this case. Perhaps recognizing that the guns were not close enough to the drug

transactions to support a spatial nexus, the majority attempts

to link the 202 Charlesworth Avenue residence directly to

Manigan’s crimes. Ante at 15-16 ("[T]he Charlesworth Avenue residence was . . . central to the common scheme or plan

relating to Manigan’s drug activities."). In support of this link,

the majority cites the two occasions when the informant gave

Manigan money outside the residence and the fact that "the

authorities observed Manigan travel directly from the residence to other locations where he engaged in drug-fronting

transactions." Id. Manigan had to live somewhere, and simply

UNITED STATES v. MANIGAN 23
saying that he left his residence to go to other locations to do

drug deals does not make his residence central to his drug

trafficking. It is only Manigan’s choice to accept payment

from the informant on two occasions outside his residence

that supports the argument that the residence had a "central"

role in Manigan’s drug dealings. This choice is not, however,

enough to establish a role for the residence, and therefore for

the gun, any more than Manigan’s choice to meet in a CVS

Pharmacy parking lot is sufficient to establish a role for CVS.

The majority is left only with the transactions’ relative proximity to the handgun which, as I have already noted, is not

sufficient because the handguns were not close enough to be

readily available for use by Manigan.

Because I conclude that the district court erred when it

applied the enhancement, I must reach the question of

whether the error was harmless. Manigan admits that if this

court reversed the district court’s application of the enhancement, his sentence would remain the same. He nevertheless

argues that application of the enhancement prejudices him

because it disqualifies him from the Bureau of Prison’s (BOP)

drug treatment program and therefore from early release. The

government responds that this should not count as prejudice

and that, in any event, the injury is hypothetical because there

is no guarantee Manigan will be admitted to BOP’s treatment

program. 

The Tenth Circuit opinion in United States v. Torres persuades me that the district court’s error is not harmless. In

Torres the court considered and rejected the exact argument

advanced by the government here. 409 F.3d 1000, 1002-03

(10th Cir. 2005). The court reasoned that if the enhancement

barred the defendant from a shorter sentence, it was clearly

prejudicial, and the only question was whether the defendant

needed to wait until he was actually denied acceptance to the

BOP’s program to challenge the enhancement. Id. at 1002.

Because the defendant’s challenge at that point would be

through habeas corpus, and because a habeas petitioner can24 UNITED STATES v. MANIGAN
not challenge the execution of a sentence, denying review on

direct appeal would deny all review. Id. at 1003. I agree with

the Tenth Circuit’s reasoning and conclude that this same

prospect in Manigan’s case requires a finding of prejudice.

Because the district court erred and the error is prejudicial,

I would vacate Manigan’s sentence and remand for him to be

resentenced without the § 2D1.1(b)(1) weapon enhancement.

UNITED STATES v. MANIGAN 25