United States v. Michael Andrew Hunter

19 F.3d 895, 1994 U.S. App. LEXIS 3628, 1994 WL 97362

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 28, 1994
• Docket: 92-5761
• Status: Published

Opinions

OPINION

DONALD RUSSELL, Circuit Judge:

Defendant Michael Andrew Hunter appeals the district court’s enhancement of the sentence he received for several drug offenses. We find no error in the enhancement and affirm.

I.

On March 27, 1992, James Ward drove defendant Hunter to a Hardee’s restaurant near La Grange, North Carolina, where Hunter had arranged to make a sale of crack cocaine to John Rea. Unbeknownst to Hunter, Rea was an undercover agent for the North Carolina Bureau of Investigation.

Hunter had stashed the crack cocaine he intended to sell to Agent Rea a short distance away, and Hunter and Rea left Har-dee’s in Rea’s car to pick it up. Hunter instructed Rea to turn left from Hardee’s parking lot onto State Road 1327 and then, at the first intersection, right onto State Road 1503. Ward followed the car in which Hunter and Rea were riding for a brief time, then disappeared.

After defendant Hunter and Agent Rea had turned onto State Road 1503, Hunter expressed momentary uncertainty about conducting the transaction and asked Rea to make a U-turn. He overcame this anxiety quickly, however, and directed Rea to stop the car. Hunter then exited the ear and returned with a paper bag containing crack cocaine.

At this point, Ward reappeared on State Road 1503. Seeing Ward, Hunter told Rea, “That’s my man.” Rea gave Hunter money for the crack cocaine, then tried to arrest him. Hunter eluded Rea, however, ran to Ward’s car, and jumped into it. Ward attempted to drive away, but he and Hunter were apprehended by the surveillance team that had been observing the drug sale. A search of Ward’s car revealed a .357 magnum pistol under the driver’s seat.

Hunter was indicted for several drug offenses and for carrying a firearm during a drug crime. He was acquitted on the firearms charge, but convicted on the other charges. The district court sentenced Hunter to 151 months imprisonment, which included a two-level enhancement under U.S.S.G. § 2Dl.l(b)(l) for possessing a firearm in connection with a drug offense. The district court found this enhancement appropriate because of the pistol found under the driver’s seat in Ward’s car after Ward attempted to aid Hunter in escaping.

II.

Hunter challenges the district court’s enhancement of his sentence under U.S.S.G. § 2Dl.l(b)(l). Section 2Dl.l(b)(l) provides for enhancement “[i]f a dangerous weapon (including a firearm) was possessed” in connection with the defendant’s drug offense. Hunter argues that he did not, merely by fleeing from the scene of a drug transaction in a car with a firearm under the driver’s seat, “possess” a firearm in connection with his drug offense for the purposes of section 2Dl.l(b)(l). We disagree.

Application Note 3 of the Guidelines Commentary accompanying section 2Dl.l(b)(l) indicates that a defendant “possesses” a fire arm in connection with his drug offense “if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” See Stinson v. United States, — U.S. -, -, 113 S.Ct. 1913, 1920, 123 L.Ed.2d 598 (1993) (stating that Guidelines Commentary that does not conflict with the Constitution, a federal statute, or a Guidelines provision is binding). Here, Ward drove Hunter to meet Agent Rea for Hunter’s drug transaction, then reappeared in his car on State Road 1503 during the transaction, at which point Hunter exclaimed “[tjhat’s my man.” Ward then attempted to drive away with Hunter after the transaction when Hunter was fleeing from Agent Rea. This evidence establishes that Hunter and Ward had planned for Ward to pick up Hunter in Ward’s car after Hunter’s drug transaction with Agent Rea. Hunter could reasonably have foreseen that a firearm would be present in a car that was picking him up after a drug transaction, and we cannot say that it was clearly improbable that the firearm under the passenger seat in Ward’s car was. connected with Hunter’s drug offense. Moreover, we affirmed a section 2Dl.l(b)(l) enhancement under almost identical circumstances in United States v. White, 875 F.2d 427, 433 (4th Cir.1989).

Another issue raised by Hunter’s case is whether conduct for which he was charged but acquitted could then properly be considered as a basis on which to enhance his sentence under the Sentencing Guidelines. The government charged that Hunter’s conduct in leaving the scene of his drug transaction in a car containing a firearm violated 18 U.S.C. § 924(c)(1), which prohibits “us[ing] or carr[ying] a firearm ... during and in relation to any ... drug trafficking crime.” The jury acquitted Hunter on this charge. After Hunter was convicted on other charges, however, the district court enhanced his sentence under section 2Dl.l(b)(l) because he had left the scene of the drug transaction in a car containing a firearm.

We recently addressed this same issue of whether acquitted conduct can be considered to enhance a sentence under the Sentencing Guidelines, however, and concluded that it can be so considered. United States v. Nelson, 6 F.3d 1049, 1057 (4th Cir.1993). As we are bound by Nelson, we must find, and Hunter concedes in his brief, that the district court did not err in enhancing his sentence on the basis of conduct for which he was acquitted.

III.

For the reasons stated, we affirm the enhancement under U.S.S.G. § 2Dl.l(b)(l) of Hunter’s sentence.

AFFIRMED.