                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5066


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHAWN KEARNS,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield.     Irene C. Berger,
District Judge. (1:10-cr-00014-1)


Submitted:   May 11, 2011                     Decided:   May 20, 2011


Before NIEMEYER, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant.
R. Booth Goodwin II, United States Attorney, Miller Bushong,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Shawn Kearns pled guilty to distributing hydromorphone

(dilaudid) in violation of 21 U.S.C.A. § 841(a), (b)(1)(C) (West

1999 & Supp. 2010), and was sentenced to a term of thirty-eight

months’ imprisonment.         Kearns appeals his sentence, contending

that the district court clearly erred in applying a two-level

increase    for    possession    of    a     dangerous       weapon    during      the

offense.         U.S.    Sentencing    Guidelines         Manual      § 2D1.1(b)(1)

(2009).    We affirm.

            In     October     2009,       Kearns     sold       dilaudid     to     a

confidential informant on three occasions.                 The first two sales

occurred   at     his    apartment.     After       the   last    sale,   a   search

warrant was executed at his apartment.               The investigators seized

$1119 in cash, of which $100 was marked currency used in one of

the controlled drug buys, and two loaded handguns, one found

under the living room sofa and the other under the pillow in the

master bedroom.         They also found a small amount of marijuana and

three small marijuana plants.               Kearns cooperated immediately.

He told the investigators that he had the firearms solely for

protection because of a break-in at his girlfriend’s apartment.

At   sentencing,    the    district    court    accepted      Kearns’     assertion

that the marijuana was for his personal use, rather than for

sale, but found that it was not clearly improbable that the



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firearms were connected with his drug sales, two of which were

conducted in the apartment.

               A two-level increase is authorized under § 2D1.1(b)(1)

if   the      defendant       possessed         a        dangerous        weapon     during       the

offense.        Application          Note       3       to    § 2D1.1     explains        that    the

enhancement “should be applied if the weapon was present, unless

it is clearly improbable that the weapon was connected with the

offense.”           The    district       court’s            factual     finding    that    Kearns

possessed a dangerous weapon during the offense is reviewed for

clear error.              United States v. McAllister, 272 F.3d 228, 234

(4th Cir. 2001).            The government “need only show that the weapon

was present during the relevant illegal drug activity.”                                           Id.

Based    on    the    evidence       presented,              the   district       court    did    not

clearly err in finding that the enhancement applied.                                        To the

extent     that      Kearns       seeks    to       bolster        his    claim    of     error    by

reference      to         District    of    Columbia            v.     Heller,     554    U.S.    570

(2008) (Second Amendment confers individual right to keep and

bear arms), and United States v. Norris, 277 F.Supp. 2d 189

(E.D.N.Y.      2003)       (finding       weapon         enhancement       inapplicable),          we

conclude that neither decision is helpful to him.

               We    therefore        affirm            the    sentence      imposed       by     the

district      court.         We    dispense         with       oral    argument     because       the

facts    and    legal       contentions         are          adequately     presented       in    the



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materials   before   the   court   and   argument   would   not   aid   the

decisional process.



                                                                  AFFIRMED




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