UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5620

THOMAS MICHAEL AVERITTE,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Rockingham.

N. Carlton Tilley, Jr., District Judge.

(CR-94-273)

Submitted: March 5, 1996

Decided: June 18, 1996

Before HALL and MICHAEL, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,

North Carolina, for Appellant. Walter C. Holton, Jr., United States

Attorney, Michael F. Joseph, Assistant United States Attorney,

Greensboro, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

Thomas Michael Averitte pled guilty to conspiracy to possess controlled substances with intent to distribute, 21 U.S.C.A. § 846 (West

Supp. 1995), and distribution of Diazepam (Valium) and lysergic acid

diethylamide (LSD), 21 U.S.C.A. § 841 (West 1981 & Supp. 1995).

He was acquitted of using or carrying a firearm in relation to a drug

trafficking offense, 18 U.S.C.A. § 924(c) (West Supp. 1995). Averitte

was sentenced to a term of 30 months imprisonment. He appeals his

sentence, contending that the district court clearly erred in enhancing

his sentence for possession of a shotgun, USSG § 2D1.1(b)(1).* He

also challenges the constitutionality of Application Note 3 to USSG

§ 2D1.1, alleging that it requires the defendant to disprove an aggravating factor. We affirm.

Averitte and Jessica Cunningham sold marijuana, codeine tablets,

Valium, and LSD to a confidential informant a number of times in

December 1993 and February 1994. The sales were made in the house

shared by Averitte and Cunningham. During these transactions, the

informant saw a shotgun in various places in the house, including

under the sofa where the marijuana was kept. He also saw Averitte

shooting the shotgun in his back yard. Averitte told the informant the

shotgun was his and that he had once used it for hunting. When

Averitte's house was searched in March 1994, the unloaded shotgun

was found under the sofa next to a box containing marijuana.

In calculating Averitte's sentence, the probation officer recommended a 2-level enhancement under USSG § 2D1.1(b)(1) for the

presence of a firearm, to which Averitte objected. At the sentencing

hearing, defense counsel argued that the evidence at trial showed that

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*United States Sentencing Commission, Guidelines Manual (Nov.

1994).

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the shotgun was used for hunting and was not connected to the drug

offense. However, the district court found, based on the trial evidence,

that the government had proved "that the gun not only was present but

connected with the offense."

We need not reach the constitutional issue raised by Averitte

because the burden of proof was never shifted to him. Rather than

simply finding that the shotgun was present during the offense, which

would have allowed Averitte an opportunity to show that the gun was

unconnected to the offense, the district court stated, "I think the gun

clearly was connected with the drug offense and, of course, the standard here is whether it was clearly improbable that it had a connection. I think it clearly was connected." We find, moreover, that the

district court did not clearly err in so ruling.

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

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