US v. Dennis Ferretti, No. 15-4608 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4608 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DENNIS FERRETTI, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:15-cr-00024-FPS-JES-2) Submitted: March 28, 2016 Decided: May 17, 2016 Before AGEE, KEENAN, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Elgine McArdle, MCARDLE LAW OFFICES, Wheeling, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Jarod J. Douglas, Assistant United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dennis following Ferretti his appeals guilty plea the to 46-month conspiracy sentence to imposed distribute and possess with intent to distribute Oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846 (2012). On appeal, Ferretti argues that the district court erred by applying a two-level enhancement pursuant § 2D1.1(b)(1) to (2014) U.S. for Sentencing possessing a Guidelines dangerous Manual weapon. We applying “a affirm. We review sentences for deferential abuse-of-discretion States, U.S. 552 38, 41 reasonableness, standard.” (2007); procedural reasonableness). see Gall id. at v. 51 United (discussing The Sentencing Guidelines direct a district court to increase a defendant’s offense level by two levels “[i]f possessed.” a dangerous USSG § weapon (including 2D1.1(b)(1). The a firearm) dangerous was weapon enhancement applies “if the weapon was present, unless it is clearly improbable offense.” that the Id. cmt. n.11(A). weapon was connected with the The defendant bears the burden of “show[ing] that a connection between his possession of a firearm and his narcotic offense is clearly improbable.” United States v. Slade, 631 F.3d 185, 189 (4th Cir. 2011) (internal quotation marks omitted); United States v. Manigan, 592 F.3d 621, 629 (4th Cir. 2010) (discussing factors 2 courts consider in applying weapon enhancement). “We review the district court’s legal conclusions de novo and its factual findings for clear error.” United States v. Gomez-Jimenez, 750 F.3d 370, 380 (4th Cir.) (internal quotation marks omitted), cert. denied, 135 S. Ct. 384 (2014). Ferretti argues that there is no evidence that he possessed the gun on which the enhancement was based for his protection during the conspiracy. He relies on the fact that he possessed the gun pursuant to a valid concealed carry permit and that he did not carry it during a traffic stop in which drugs were seized or after he stole coconspirator’s residence. did not err when it money and drugs from his We conclude that the district court applied the § 2D1.1(b)(1) enhancement. Ferretti kept the handgun in close proximity to the drugs and cash proceeds from the sales, and, thus, the gun was readily available should the need arise to use it to protect either the drugs or cash. See Manigan, 592 F.3d at 629 (“[F]irearms that are readily accessible during drug activities can be deemed as possessed in connection there-with.”). Moreover, the fact that Ferretti possessed the firearm pursuant to a valid concealed carry permit does not mean that he did not also possess the gun in connection with the drug conspiracy. See United States v. Carlson, 810 F.3d 544, 557 (8th Cir. 2016), petition for cert. 3 filed, __ U.S.L.W. __ (U.S. Mar. 9, 2016) (No. 15-1136); United States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998). Accordingly, we affirm the district court’s judgment. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 4
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