US v. Souvira Simalayvong, No. 08-4819 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4819 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SOUVIRA SIMALAYVONG, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00063-RLV-DCK-1) Submitted: December 18, 2009 Decided: January 12, 2010 Before KING, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Joshua D. Davey, MCGUIRE WOODS LLP, Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Souvira Simalayvong pled guilty to conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846 (2006) (Count 1), and two counts of possessing with intent to distribute methamphetamine and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) (2006) and 18 U.S.C. § 2 (2006) (Counts 3, 4). his remaining furtherance charge of a that drug he He proceeded to trial on used trafficking and carried crime in a firearm violation of in 18 U.S.C.A. § 924(c) (West Supp. 2009), and the jury found him not guilty. for Simalayvong was sentenced to 108 months of imprisonment each conviction, to be served concurrently. On appeal, Simalayvong argues that the district court erred by imposing a two-level enhancement for possession of a firearm during the commission of a drug trafficking offense under U.S. Sentencing Guidelines Manual ( USSG ) § 2D1.1(b)(1) (2007). For the reasons that follow, we affirm. We finding that do not find Simalayvong that the possessed district the court s gun connection with his drug dealing was clear error. at factual issue in United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006) (providing legal and factual review standard); United States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006) (factual findings at sentencing are reviewed for clear error). Sentencing enhancements need only be 2 supported by a preponderance of the evidence, United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003), and the USSG § 2D1.1 enhancement is proper if the weapon was present unless it is clearly improbable offense. the weapon was USSG § 2D1.1, comment. (n.3). Simalayvong s pistol that were trial regarding sufficient for his the connected to the The facts presented at possession district of court the to Taurus impose the enhancement. Accordingly, we find no reversible error and affirm Simalayvong 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 3
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