UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5833

FREDERICK SHULER, III,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

Richard C. Erwin, Senior District Judge.

(CR-95-129)

Submitted: August 22, 1996

Decided: September 12, 1996

Before RUSSELL, HALL, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

D. Thomas Lambeth, Jr., HEMRIC, LAMBETH & CHAMPION,

P.A., Burlington, North Carolina, for Appellant. Walter C. Holton, Jr.,

United States Attorney, Robert M. Hamilton, 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Unpublished opinions are not binding precedent in this circuit.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:

Frederick Shuler, III, pled guilty to two counts of possession of

crack cocaine with intent to distribute and one count of possession of

powder cocaine with intent to distribute, 21 U.S.C.A. § 841 (West

1981 & Supp. 1996). He appeals his 108-month sentence alleging that

the district court clearly erred in enhancing his sentence for possession of a firearm. United States Sentencing Commission, Guidelines

Manual, § 2D1.1(b)(1) (Nov. 1994). We affirm.

Shuler sold crack to an undercover agent on two occasions. A third

transaction for powder cocaine was arranged and Shuler was arrested

when he arrived to make the sale. Shuler's girlfriend subsequently

consented to a search of the apartment they shared. In the apartment,

investigators found 32.7 grams of powder cocaine and 22.9 grams of

crack in the bathroom. On the sofa in the living room was a loaded

semi-automatic Glock pistol with a laser sight.

A two-level enhancement is made when a firearm or other dangerous weapon is possessed during a drug offense, USSG§ 2D1.1(b)(1),

or in preparation for it. USSG § 1B1.3(a). The enhancement is appropriate if the weapon is present unless the evidence shows that it is

clearly improbable that the weapon was connected to the offense.

USSG § 2D1.1, comment. (n.3). Whether a firearm is present in the

sense which justifies an enhancement is a factual question reviewed

under the clearly erroneous standard. United States v. Apple, 915 F.2d

899, 914 (4th Cir. 1990).

Shuler objected to the probation officer's recommendation that the

enhancement be made, but he presented no evidence at the sentencing

hearing on which the district court could have made a finding that the

weapon was not connected to the offense.* Because the firearm was

present in his apartment with drugs which he intended to distribute,

the district court did not clearly err in making the enhancement.

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*Defense counsel proffered that Shuler bought the gun for his girlfriend's protection. However, neither Shuler nor his girlfriend, who was

present at the sentencing hearing, testified about the matter.

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We therefore affirm the 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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