UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4120

RICCO JEREMAINE MCQUEEN,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

James A. Beaty, Jr., District Judge.

(CR-98-285)

Submitted: July 6, 1999

Decided: August 10, 1999

Before ERVIN and WILKINS, Circuit Judges, and PHILLIPS,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Nils E. Gerber, Winston-Salem, North Carolina, for Appellant. Walter

C. Holton, Jr., United States Attorney, Angela H. Miller, 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Unpublished opinions are not binding precedent in this circuit.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).
OPINION

PER CURIAM:

Ricco Jeremaine McQueen appeals his 168-month sentence

imposed following his guilty plea pursuant to a plea agreement for

conspiracy to distribute cocaine base, in violation of 21 U.S.C.A.

§§ 841(b)(1)(A), 846 (West 1994 & Supp. 1999). Finding no error in

his sentencing, we affirm.

McQueen was arrested in October 1998 after an extensive investigation tied him to a cocaine distribution ring in High Point, North

Carolina, operated by John Reed, and he pleaded guilty to one count

of conspiracy to distribute cocaine base in November 1998. According to the presentence report, McQueen admitted purchasing an estimated fourteen ounces of cocaine base from Reed over one and onehalf years, that he and Reed made four trips to New York to buy

drugs, that he and two co-defendants jointly purchased a shotgun for

protection after being robbed by "the Dowdy boys," and that he gave

Reed a .45 caliber pistol he previously purchased. When Reed was

arrested on October 2, 1998, he told police that the .45 caliber pistol

seized from his apartment belonged to McQueen. According to one

co-defendant, Reed kept several firearms at McQueen's house, from

which the group distributed drugs, and that these firearms were available to all of the co-defendants.

Starting from a base offense level of 38,1 the probation officer

arrived at a total offense level of 37 by adding two levels for the firearms pursuant to U.S.S.G. § 2D1.1(b)(1) and subtracting three levels

for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a). With

a Criminal History Category I, the final result was a sentence range

of 210-262 months. The Government moved for a downward departure for "substantial assistance." See U.S.S.G. § 5K1.1.

In his objections to the presentence report, McQueen contended he

was entitled to a two-level decrease in offense level under U.S.S.G.

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1 McQueen was held accountable for 3254.58 grams of cocaine base

and 261.5 grams of cocaine hydrochloride. See U.S.S.G. § 2D1.1(c)(1)

(Nov. 1998).

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§ 3B1.2(b) for his minor role in the overall conspiracy. He also

objected to the two-level firearm enhancement under§ 2D1.1(b)(1).

The district court specifically adopted the factual findings and Guidelines applications set forth in the presentence report. More particularly, the court found it was "not clearly improbable" that the .45

caliber pistol given to Reed by McQueen was connected to the criminal drug activity. The court also found that McQueen was not entitled

to an adjustment as a minor participant in the conspiracy. On the Government's motion, the court departed downward and imposed a prison

sentence of 168 months. On appeal, McQueen raises the same sentencing issues.

With regard to drug offenses, the Guidelines provide that "[i]f a

dangerous weapon (including a firearm) was possessed, increase [the

offense level] by two levels." U.S.S.G. § 2D1.1(b)(1). The Application Notes explain that the two level increase "should be applied if the

weapon was present, unless it is clearly improbable that the weapon

was connected with the offense." U.S.S.G. § 2D1.1, comment. (n.3).

We review enhancements under § 2D1.1(b)(1) for clear error. See

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

Although McQueen accepted the facts set forth in the presentence

report, he nevertheless argues that there was no showing of a nexus

between the firearms and the drug operation. All that need be shown,

however, is "the proximity of guns to illicit narcotics" for the

enhancement to apply. Id. As the district court noted during the sentencing hearing, the firearm was provided for protection from further

robberies by "the Dowdy boys," and the court understandably surmised that the "protection" had to do with the defendants' drug operation. Other information in the presentence report includes a codefendant's statement that there were "several firearms" at the house

that McQueen and a co-defendant shared, that this house served as the

main distribution point for the conspiracy, and that these firearms

were "accessible to everyone." McQueen is unable to demonstrate a

clear improbability that the firearms were not connected to the drug

dealing.2

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2 We reject McQueen's contention that, despite a finding that he "possessed" a firearm within the meaning of § 2D1.1(b)(1), he might still be

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McQueen contends that he was entitled to an adjustment for playing only a minor role in the offense. We will affirm a district court's

finding regarding a defendant's role in the offense unless it is clearly

erroneous. See United States v. Withers, 100 F.3d 1142, 1147 (4th

Cir. 1996). In determining whether a defendant played a "minor role,"

the court must "compare the defendant's culpability to that of other

participants [and] also `measur[e] each participant's individual acts

and relative culpability against the offense of conviction.'" United

States v. Reavis, 48 F.3d 763, 769 (4th Cir. 1995) (quoting United

States v. Daughtrey, 874 F.2d 213, 216 (4th Cir. 1989)) (second

brackets in original). A review of the record belies McQueen's contention that he was little more than a low-level"lackey."

McQueen drove Reed to New York on a number of occasions to

pick up shipments of drugs, the last such trip resulting in his arrest

in New Jersey when a large cache of cocaine base and cocaine hydrochloride was seized. According to his own post-arrest statement, he

purchased a total of fourteen ounces of cocaine base from Reed over

an eighteen month period, and he continued to sell drugs even after

his arrest in New Jersey in early 1998. Most telling is that McQueen's

home served as a primary distribution site for the conspiracy. He was

clearly not "substantially less culpable than the average participant"

in the conspiracy. U.S.S.G. § 3B1.1, comment. (backg'd.).

Accordingly, we affirm McQueen'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 the decisional process.

AFFIRMED

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eligible for a two-level decrease under U.S.S.G.§ 2D1.1(b)(6), which

incorporates the eligibility criteria of § 5C1.2, the "safety valve" provision. One of these criteria is that he be found to not have "possess[ed]

a firearm . . . in connection with the offense " (emphasis added). See

United States v. Coleman, 148 F.3d 897, 903-04 (8th Cir.), cert. denied,

___ U.S. ___, 67 U.S.L.W. 3237 (U.S. Oct. 5, 10, 1998) (No. 98-5340)

(applying "clearly improbable" standard used to determine nexus

between offense and firearm under § 2D1.1(b)(1) to issue of whether

firearm was possessed "in connection with the offense" for purposes of

safety valve provision).

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