United States v. Terry

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-6439

UNITED STATES OF AMERICA, Plaintiff - Appellee,

versus

JAMES B. TERRY, a/k/a Johnny Terry, Defendant - Appellant.

On Petition for Rehearing with Suggestion for Rehearing in Banc.

(CR-92-216, CA-96-1216-6-20)

Submitted: October 7, 1997 Decided: October 29, 1997

Before WILKINS and MICHAEL, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

James B. Terry, Appellant Pro Se. Matthew Raymond Hawley, Jr., Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

PER CURIAM:

James B. Terry pled guilty to money laundering, 18 U.S.C.

§ 1956(a)(1)(A)(i) (1994), conspiracy to distribute narcotics, 21 U.S.C. § 846 (1994), and using and carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C.A. § 924(c) (West

Supp. 1997). Terry filed a motion under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997) challenging his § 924(c) conviction under Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501 (U.S. Dec. 6, 1995)

(Nos. 94-7448, 94-7492). The district court granted relief and resentenced Terry, adding an enhancement for possession of a fire-

arm during a drug offense. U.S. Sentencing Guidelines Manual, § 2D1.1(b)(1) (1995). Terry appeals, claiming that the lower burden

of proof applicable at sentencing violated his right to due

process.

This court has held that the preponderance of evidence stan-

dard of proof at sentencing does not violate due process. See United States v. Engleman, 916 F.2d 182 (4th Cir. 1990); see also

United States v. Bowman, 926 F.2d 380, 381-82 (4th Cir. 1991) (holding that application of § 2D1.1 does not violate Due Process

Clause). Because the evidence presented by the government estab- lished that Terry possessed fourteen firearms at the time of his arrest on drug trafficking charges, the district court's applica- tion of § 2D1.1 was not clearly erroneous. See United States v. Rusher, 966 F.2d 868, 880 (4th Cir. 1992).

Accordingly, we deny a certificate of appealability and dis-

miss the appeal. We dispense with oral argument because the facts

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and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED