US v. Brian Foster, No. 10-4046 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4046 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRIAN LEE FOSTER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00087-FL-1) Submitted: December 7, 2010 Decided: December 28, 2010 Before WILKINSON, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Eric D. Goulian, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A federal jury convicted Brian Lee Foster of conspiracy to possess with intent to distribute and distribute cocaine, in violation of 21 U.S.C. § 846 (2006). The district court sentenced Foster to 324 months of imprisonment and he now appeals. Finding no error, we affirm. Foster first challenges the district court s denial of his motion vague. to dismiss However, the Foster indictment failed to as file unconstitutionally objections to the magistrate judge s report after receiving proper notice of the requirement to file objections, and has therefore waived See Wright v. Collins, 766 F.2d appellate review of this issue. 841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140 (1985); Fed. R. Crim. P. 59(a). Moreover, Foster s claim fails on the merits. We review the denial of a motion to dismiss an indictment de novo. United States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997). Fed. R. Crim. P. 7(c)(1) requires an indictment to be a plain, concise, and definite written statement of the essential facts constituting sufficient, the an offense charged. indictment must In contain order the to be elements legally of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same 2 offense. Id. (internal quotation marks and citation omitted). An indictment is generally sufficient if it alleges an offense in the words of the statute. United States v. Wicks, 187 F.3d 426, 427 (4th Cir. 1999) (citing Hamling v. United States, 418 U.S. 87, 117 (1974)). Here, the subject indictment tracked the statutory language, cited the charging statute, and listed the elements of the charge. We therefore find that the indictment was sufficient. Foster next argues that the district court abused its discretion in denying his motion to transfer venue. This court reviews a district court s denial of a motion to transfer venue See United States v. Heaps, 39 F.3d for abuse of discretion. 479, 482 (4th Cir. 1994), abrogated on other grounds, United States v. Cabrales, 524 U.S. 1 (1998). provides that the court may transfer Fed. R. Crim. P. 21(b) a proceeding, upon the defendant s motion, to another district for the convenience of the parties and witnesses and in the interests of justice. In deciding such a motion, the district court should consider the (a) location of the defendant; (b) location of the possible witnesses; (c) location of the events likely to be at issue; (d) location of relevant documents and records; (e) potential for disruption of the defendant s businesses if transfer is denied; (f) expenses to be incurred by the parties if transfer is denied; (g) location 3 of defense counsel; (h) relative accessibility of the place of trial; and (i) docket conditions of each potential district. Mfg. Co., 376 U.S. 240, 243-44 Platt v. Minn. Mining & (1964). No one of these considerations is dispositive, and [i]t remains for the court to try to strike a balance and determine which factors are of United States v. Stephenson, 895 F.2d greatest importance. 867, 875 (2d Cir. 1990). We have thoroughly reviewed the record and conclude that the court did not abuse its discretion in denying Foster s motion to transfer venue. Finally, Foster challenges the district court s application of an enhancement under the sentencing guidelines for possession of a firearm. Whether the district court properly applied an enhancement under the guidelines is reviewed for clear error. (4th Cir. 2001). entire evidence, United States v. McAllister, 272 F.3d 228, 234 We will find clear error only if, on the [we are] left with the definite conviction that a mistake has been committed. and firm United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation marks and citation omitted). Under the guidelines, a district court must increase a defendant s possessed offense a level dangerous by two weapon, levels including if a the defendant firearm. Sentencing Guidelines Manual ( USSG ) § 2D1.1(b)(1) (2009). enhancement is proper when the 4 weapon was possessed U.S. The in connection with drug activity that was part of the same course of conduct or common scheme as the offense of conviction. Manigan, 592 F.3d at 628-29 (internal quotation marks omitted). Moreover, [t]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. McAllister, 272 F.3d at 234 (citing USSG § 2D1.1(b)(1) cmt. n.3). In assessing whether a defendant possessed a firearm in connection with relevant drug activity, a sentencing court is entitled to consider . . . the type of firearm Manigan, 592 F.3d at 629 (citation omitted). involved. In addition, the court should consider the location or proximity of a seized firearm in determining whether it was possessed in connection with drug activity. Id. The government bears the burden of demonstrating that the enhancement applies by a preponderance of the evidence. something by Id. a at 630-31. preponderance of [T]he the burden evidence . of . showing . simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence. at 631 that the Id. (internal quotation marks and citation omitted). We have reviewed the record and conclude district court did not commit clear error in finding it was not clearly offense. improbable that the weapon was connected with the Accordingly, we affirm the judgment of the district 5 court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 6

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