                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4471


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ADRIAN LAMONTE SHANKLE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
Chief District Judge. (3:11-cr-00367-FDW-1)


Submitted:   May 26, 2015                     Decided:   June 5, 2015


Before WILKINSON, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Norman Butler, LAW OFFICE OF NORMAN BUTLER, Charlotte, North
Carolina, for Appellant.   Jill Westmoreland Rose, Acting United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Adrian      Lamonte     Shankle         pled       guilty    to     17    counts       of

distribution        of     cocaine     base,        in     violation       of    21     U.S.C.

§ 841(a)(1), (b)(1)(C) (2012) (counts 1 through 15, 19, and 20),

and   was   found     guilty       after   a       jury    trial    of    distribution        of

cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)

(count 16), and possession of a firearm by a convicted felon, in

violation     of    18     U.S.C.    § 922(g)(1)           (2012)      (count    17).      The

district court calculated Shankle’s Guidelines range under the

U.S. Sentencing Guidelines Manual (2012) at 87 to 108 months’

imprisonment and sentenced Shankle to 87 months’ imprisonment.

On appeal, Shankle challenges the district court’s calculation

of    his   Guidelines       range,    arguing            that   the     court   erred     in:

applying the 2-level enhancement under USSG § 2D1.1(b)(1) for

possession of a firearm; applying the 2-level enhancement under

USSG § 2K2.1(b)(4)(A) for a stolen firearm; applying the 4-level

enhancement        under    USSG     § 2K2.1(b)(6)(B)            for     possession      of   a

firearm in connection with the distribution of cocaine base; and

failing to apply a 2-level reduction under USSG § 3E1.1(a) for

acceptance of responsibility. *                We affirm.


       *
       Shankle has filed a motion for leave to file a pro se
supplemental brief, along with that brief.   Because Shankle is
represented by counsel who has filed a merits brief, Shankle is
not entitled to file a pro se supplemental brief, and we
therefore deny his motion.   See United States v. Penniegraft,
(Continued)
                                               2
      Section 2D1.1(b)(1) of the Guidelines directs a district

court to increase a defendant’s offense level by 2 levels “[i]f

a dangerous weapon (including a firearm) was possessed.”                            The

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

it is clearly improbable that the weapon was connected with the

offense.”    USSG § 2D1.1 cmt. n.11(A).            The enhancement is proper

when the weapon at issue “was possessed in connection with drug

activity that was part of the same course of conduct or common

scheme as the offense of conviction,” United States v. Manigan,

592 F.3d 621, 628-29 (4th Cir. 2010) (internal quotation marks

omitted), even “in the absence of 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.   Slade,    631    F.3d     185,   189    (4th       Cir.   2011)

(internal quotation marks omitted).               To prove that a weapon was

present,    the   Government     “need   show     only   that     the      weapon   was

possessed     during      the     relevant        illegal       drug       activity.”

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

The   defendant   bears   the    burden      of   showing      that    a   connection

between his possession of a firearm and his narcotics offense is




641 F.3d 566, 569 n.1 (4th Cir. 2011) (denying motion to file
pro se supplemental brief because defendant was represented by
counsel).



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“clearly       improbable.”               Slade,      631     F.3d      at    189     (internal

quotation marks omitted).

       We conclude after review of the record and the parties’

briefs    that       Shankle      has     not   met    this      burden.        The    district

court’s        application          of       the      2-level         enhancement            under

USSG § 2D1.1(b)(1) is supported by testimony adduced at trial

and reflected in the revised presentence report that Shankle

sold a loaded 9-millimeter firearm and a quantity of cocaine

base to an undercover officer during the same transaction.                                     At

sentencing, Shankle did not point to any evidence suggesting

that     the        connection       between         the      firearm         and     his    drug

distribution          was        “clearly       improbable,”          and      this        failing

continues      on     appeal.        We     also     reject      as   meritless       Shankle’s

argument       that        the    district         court    erred        in    applying       the

enhancement         based    on    its     consideration         of     acquitted      conduct.

A district court is free at sentencing to consider acquitted

conduct        in     calculating           a    defendant’s            Guidelines          range.

United States         v.    Lawing,       703   F.3d    229,      241    (4th       Cir.    2012).

Shankle thus fails to establish that the district court clearly

erred      in         applying            the        2-level          enhancement            under

USSG § 2D1.1(b)(1).               See McAllister, 272 F.3d at 234 (stating

standard of review).

       Turning       to     Shankle’s       challenge       to    the    district          court’s

refusal to apply a 2-level reduction under USSG § 3E1.1(a) for

                                                 4
acceptance of responsibility, such a reduction to a defendant’s

offense        level    is   warranted       if     he     “clearly     demonstrates”

acceptance of responsibility for his offenses.                    USSG § 3E1.1(a).

To receive a reduction under USSG § 3E1.1, the defendant “must

prove by a preponderance of the evidence that he has clearly

recognized       and    affirmatively     accepted       personal     responsibility

for his criminal conduct.”             United States v. May, 359 F.3d 683,

693     (4th     Cir.    2004)     (internal        quotation     marks       omitted).

In determining whether the adjustment is warranted, the district

court     may     consider      whether    the      defendant     has     “truthfully

admitt[ed] the conduct comprising the offense(s) of conviction,

and truthfully admitt[ed] or not falsely den[ied] any additional

relevant conduct for which the defendant is accountable under

[USSG] § 1B1.3.”         USSG § 3E1.1 cmt. n.1(A).

      We conclude after review of the record and the parties’

briefs that the district court did not clearly err in denying

Shankle a 2-level reduction under USSG § 3E1.1(a) for acceptance

of responsibility.           See May, 359 F.3d at 688 (stating standard

of review).        Shankle did not admit guilt of or responsibility

for     the     criminal     conduct      comprising        counts      16     and     17.

We further reject as meritless Shankle’s claim that the district

court never considered application note 2 to USSG § 3E1.1 and

never    considered       his    admission     to    the    probation        officer   of



                                           5
participation in and acceptance of responsibility for the 17

counts of drug distribution to which he pled guilty.

      Finally,     with    respect          to    Shankle’s       challenges      to     the

district court’s application of the 2-level enhancement under

USSG § 2K2.1(b)(4)(A)        for       a    stolen      firearm     and     the    4-level

enhancement    under      USSG    § 2K2.1(b)(6)(B)          for     possession         of   a

firearm in connection with another felony offense, we need not

resolve whether the court erred in applying the enhancements.

Assuming without deciding that application of these enhancements

was   error,   such    error      was      harmless.        See    United     States        v.

McManus, 734 F.3d 315, 318 (4th Cir. 2013) (“[S]entencing error

is subject to harmlessness review.                  Sentencing error is harmless

if the resulting sentence is not longer than that to which the

defendant would otherwise be subject.” (internal quotation marks

and alterations omitted)).                 A review of the record shows that

application of these enhancements did not affect the Guidelines

range or Shankle’s sentence.

      The district court applied the enhancements to count 17,

yielding an adjusted offense level for that count of 20.                                 The

court,   however,      did       not       rely    on    this     offense     level         in

calculating      Shankle’s       Guidelines        range.         Rather,    the       court

relied on the adjusted offense level of 28 calculated for the

group encompassing counts of distribution of cocaine base — the

greatest of the adjusted offense levels.                    This offense level and

                                             6
Shankle’s Category II criminal history result in a Guidelines

range of 87 to 108 months’ imprisonment, and Shankle received a

prison     term     at     the     bottom    of    that      range.         Without    the

enhancements       under        USSG   §§ 2K2.1(b)(4)(A),           (6)(B),    Shankle’s

offense level would remain the same as that calculated by the

district     court.             Accordingly,      any     error     in   applying      the

enhancements was harmless.

     Accordingly, we affirm the district court’s judgment.                              We

dispense     with        oral     argument     because       the    facts     and     legal

contentions       are    adequately      presented      in    the    materials      before

this court and argument would not aid the decisional process.



                                                                                AFFIRMED




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