United States v. Lemar

56 F. App'x 380

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 19, 2003
• Docket: No. 02-30108; D.C. No. CR-01-00052-BLW
• Status: Published

Opinion

MEMORANDUM

**

Samuel Gregory Lemar appeals the 41-month sentence imposed following his guilty plea conviction for one count each of conspiracy to distribute controlled substances, distribution of methylenediox-yamphetamine, and distribution of keta-mine in violation of 21 U.S.C. §§ 846 and 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

At sentencing, the district court applied a two-level increase of the offense level for possession of a firearm under U.S.S.G. § 2Dl.l(b)(l). Lemar contends the two-level increase was not warranted because there was no evidence indicating he or any of his co-conspirators possessed a firearm during the commission of their offenses.

We review for clear error the district court’s finding that the defendant possessed a firearm during the commission of a narcotics offense. See United States v. Willis, 899 F.2d 873, 874 (9th Cir.1990). A criminal defendant can be held accountable for a firearm possessed by a co-conspirator, if the possession was reasonably foreseeable to the defendant as part of the criminal activity. See id. at 875 (holding that actual knowledge of a co-conspirator possessing a firearm qualifies as foreseeability). Lemar testified at sentencing that during narcotics transactions he knew that one of his co-conspirators carried a firearm. Accordingly, the district court appropriately granted the two-level increase under U.S.S.G. § 2D1.1(b)(1).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.