                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-5150


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

CEDRIC O’NEAL BUTLER,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:05-cr-01220-MBS-1)


Submitted:    January 21, 2009              Decided:   February 13, 2009


Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Russell W. Templeton, Columbia, South Carolina, for Appellant.
W. Walter Wilkins, United States Attorney, Stanley D. Ragsdale,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Cedric      O’Neal    Butler         pled     guilty     to    conspiracy       to

possess with intent to distribute and distribute 50 grams or

more of cocaine base (crack) and 500 grams or more of powder

cocaine,    21    U.S.C.    § 846      (2006),       and       was   sentenced       to     the

mandatory     minimum    term     of   240       months    imprisonment.            In    this

appeal, Butler contests the two-level enhancement he received

for possession of a dangerous weapon during the offense, U.S.

Sentencing Guidelines Manual § 2D1.1(b)(1) (2007).                             We affirm.

            Butler concedes that the enhancement did not affect

his sentence because his advisory guideline range was lower than

the mandatory minimum sentence, but seeks review of the issue

under   the      misapprehension       that,       if     he    earns      a    substantial

assistance departure in the future, the district court could

begin   a   departure      from    the   guideline          range.         In     fact,   any

departure would have to begin at the mandatory minimum sentence.

United States v. Pillow, 191 F.3d 403, 406-07 (4th Cir. 1999);

see also United States v. Diaz, 546 F.3d 566, 568 (8th Cir.

2008) (collecting cases).

            The district court’s decision that an enhancement is

warranted     under     § 2D1.1(b)(1)        is     reviewed         for    clear    error.

United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).

As he did in the district court, Butler argues that the gun he

took to a confrontation on November 14, 2004, which resulted in

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his cousin’s arrest, was unconnected to any drug activity.                                 He

argues that his case is like McAllister, in which we held that

the evidence did not establish that the defendant possessed a

gun during a drug transaction, although he both sold drugs and

possessed handguns.            Id.           However, the defendant in McAllister

was    convicted       of     drug           trafficking,       not    conspiracy.         In

McAllister, we also noted that “the Government need only show

that the weapon was possessed during the relevant illegal drug

activity.”      Id.        In this case, the relevant drug activity was a

conspiracy      that       lasted       at    least   from      November    14,   2004,    to

August 2, 2006.            Moreover, the evidence need only show that the

gun was located in the same place where the drugs were stored or

sold, and need not be “proof of precisely concurrent acts, for

example, gun in hand while in the act of storing drugs, drugs in

hand while in the act of retrieving a gun.”                             United States v.

Harris, 128 F.3d 850, 852 (4th Cir. 1997) (quoting United States

v. Johnson, 943 F.2d 383, 386 (4th Cir. 1991)).

           The district court had before it undisputed evidence

that   Butler    possessed          a    gun     together       with   crack   and     powder

cocaine on November 14, 2004.                    Because he admitted participating

in a drug trafficking conspiracy that existed on that day, and

because the government proffered evidence, which Butler did not

contest,   that       he    “regularly          carried     a    pistol    when   he    dealt

drugs,” and that “he was dealing drugs during this time period,”

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we   conclude   that   the    district       court   did    not    clearly      err   in

applying the enhancement.        See United States v. Idowu, 520 F.3d

790, 795 (7th Cir. 2008) (affirming enhancement where drugs and

guns found together).         As previously stated, because Butler was

subject to a mandatory 240-month sentence, the court’s ruling

did not affect his sentence.

           We affirm the sentence imposed by the district court.

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




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