                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4545


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

WILLIAM JAMES SPRINGER,

                     Defendant - Appellant.


Appeal from the United States District Court for the Southern District of West Virginia, at
Beckley. Irene C. Berger, District Judge. (5:17-cr-00212-1)


Argued: September 20, 2019                                    Decided: October 15, 2019


Before MOTZ, KING, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.


ARGUED: David Bungard, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. Kathleen Elizabeth Robeson, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF:
Christian M. Capece, Federal Public Defender, Jonathan D. Byrne, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant. Michael B. Stuart, United States Attorney, Charleston, West
Virginia, John L. File, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

       William Springer pled guilty to a single count of distribution of oxymorphone, a

controlled substance, and received a sentence of 96 months imprisonment and five years

of supervised release. He appeals, challenging the district court’s application of a two-

level sentencing enhancement for possession of a dangerous weapon and contending that

the district court abused its discretion in imposing a five-year term of supervised release.

For the following reasons, we affirm.



                                             I.

       Springer’s conviction arises from an investigation into illegal drug trafficking in

Greenbrier County, West Virginia.       Officers conducted several “controlled buys” of

oxymorphone tablets from Springer and his associates, Joshua Smith and Jessica Honaker.

In connection with the investigation, twenty-one oxymorphone tablets were purchased

from Springer for a total of $2,030 and six tablets were purchased from Smith and Honaker

for a total of $770.

       On December 2, 2016, officers executed a search warrant of Smith and Honaker’s

residence. Officers found Tremaine Pool, Springer’s nephew, lying on a mattress in the

living room. Underneath a couch in the living room were a 9 mm handgun with the serial

number removed and a large quantity of oxymorphone tablets.

       Pool told investigators that the handgun and oxymorphone tablets belonged to him.

Pool admitted to selling approximately 260 tablets from Smith and Honaker’s residence,




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and said that Springer had supplied him with the tablets, introduced him to Smith, and

arranged for his transportation to the residence.

       Based on the controlled buys, the Government charged Springer with six counts of

distribution of oxymorphone, in violation of 21 U.S.C. § 841(a)(1). He pled guilty to one

count, preserving his right to appeal any decision or finding by the district court that the

dangerous weapon enhancement under Section 2D1.1(b)(1) of the Sentencing Guidelines

applied. In connection with his guilty plea, Springer stipulated that he had distributed, or

been involved in distributing, approximately 300 oxymorphone pills in Greenbrier County.

       At the sentencing hearing, the district court applied a two-level enhancement for

possession of a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1). The enhancement was

based on Pool’s possession of the handgun, which the court attributed to Springer as

“relevant conduct” under Section 1B1.3 of the Sentencing Guidelines. In holding that the

enhancement applied, the court found that Springer could have reasonably foreseen Pool’s

possession of a firearm given the ubiquity of firearms in the drug trafficking trade, the

quantity of drugs involved in Springer and Pool’s operation, and the fact that, at Springer’s

behest, Pool had been “bringing drugs to and staying with people he didn’t otherwise

know.”

       The Guideline range was 100 to 125 months’ imprisonment; the court varied

downwards to 96 months. The district court also sentenced Springer to five years of

supervised release — an upward variance from the Guideline range of three years. Noting

Springer’s criminal history, substance abuse issues, and lack of education, the district court

stated that “a lengthier term of supervised release will provide additional support and


                                              3
supervision to both assist Mr. Springer in returning to society and to protect the public after

his completion of a term of imprisonment.” Springer noted a timely appeal.



                                              II.

       Springer contends that the district court clearly erred in finding that he could have

reasonably foreseen Pool’s possession of a firearm. Springer also contends that the district

court’s imposition of a five-year term of supervised release was substantively

unreasonable. We review criminal sentences for reasonableness “under a deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).

                                              A.

       “In assessing whether a district court properly calculated the Guidelines range,

including its application of any sentencing enhancements, we review the district court’s

legal conclusions de novo and its factual findings for clear error.” United States v. Fluker,

891 F.3d 541, 547 (4th Cir. 2018) (alterations omitted).

       Section 2D1.1(b)(1) of the Sentencing Guidelines provides that the base offense

level of a drug offense is increased two levels “[i]f a dangerous weapon (including a

firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). Under the relevant conduct provisions

of the Guidelines, Springer is subject to the enhancement if Pool’s possession of the firearm

was “(i) within the scope of [Springer and Pool’s] jointly undertaken criminal activity, (ii)

in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with

that criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B).




                                              4
       Springer contends that the district court clearly erred in finding that he could

reasonably foresee Pool’s possession of a firearm. In determining whether an act or

omission was reasonably foreseeable for purposes of the relevant conduct provisions, we

consider both the nature of the offense and the circumstances of the case. See United States

v. Kimberlin, 18 F.3d 1156, 1160 (4th Cir. 1994); U.S.S.G. § 1B1.3 cmt. n.3(D). In

Kimberlin, we held that in drug trafficking cases, “absent evidence of exceptional

circumstances, it is fairly inferable that a codefendant’s possession of a dangerous weapon

is foreseeable to a defendant with reason to believe that their collaborative criminal venture

includes an exchange of controlled substances for a large amount of cash.” Kimberlin, 18

F.3d at 1160 (alterations omitted); accord United States v. Gomez-Jimenez, 750 F.3d 370,

381 (4th Cir. 2014).

       Here, the district court cited the large quantity of oxymorphone Springer and Pool

had distributed in West Virginia — Springer stipulated that he had been involved in

distributing approximately 300 oxymorphone pills in Greenbrier County. The court also

noted that Pool, at Springer’s direction, had been “bringing drugs to and staying with

people he didn’t otherwise know” — a potentially perilous undertaking. Although this is

a close case, the district court’s finding that Pool’s possession of a firearm was reasonably

foreseeable to Springer does not constitute clear error.

       Springer argues that the operation in which he played a part “was not the kind of

large-scale operation which suggests that firearms will inevitably become involved,”

Opening Br. at 16, and notes that the drug conspiracy at issue in Kimberlin involved fifteen

kilograms of cocaine. See Kimberlin, 18 F.3d at 1158. To be sure, the strength of any


                                              5
inference that a defendant could reasonably foresee a co-defendant’s possession of a

firearm depends on “the circumstances of the case,” see id. at 1160, including the quantity

of drugs involved, as the Government acknowledged at oral argument. Here, Springer

distributed upwards of $25,000 worth of oxymorphone tablets and did so by arranging for

Pool to sell the drugs from the home of people he did not otherwise know. While these

facts do not compel the district court’s finding that Pool’s possession of a firearm was

reasonably foreseeable to Springer, they are sufficient for us to conclude that the finding

does not constitute clear error.

       Springer also argues that the dangerous weapon enhancement should not be applied

in all drug cases involving firearms, and notes that for the enhancement to be applied under

the relevant conduct provisions, the firearm must fall within the scope of jointly undertaken

criminal activity. See U.S.S.G. § 1B1.3(a)(1)(B). We agree. 1 Here, Pool’s firearm was

found in proximity to a large quantity of oxymorphone that Springer had arranged for Pool

to distribute. This adequately supports the district court’s finding that the firearm was

within the scope of Springer and Pool’s joint criminal activity. See United States v. Harris,

128 F.3d 850, 852 (4th Cir. 1997) (holding that the “proximity of guns to illicit narcotics”

can support application of the dangerous weapon enhancement).




       1
         We do not agree, however, with Springer’s contention that the question of scope
goes to whether a co-defendant’s conduct is reasonably foreseeable. Scope and reasonable
foreseeability are independent inquiries under Section 1B1.3(a)(1)(B). See United States
v. Flores-Alvarado, 779 F.3d 250, 255–56 (4th Cir. 2015).


                                             6
      Springer argues that “[t]here was no evidence that Springer’s agreement with Pool

to enter into a criminal scheme included the possession of firearms.” Opening Br. at 15.

This argument is unavailing. The question is not whether Springer and Pool agreed to

possess firearms; the question is whether possession of a firearm was within the scope of

their agreement to distribute oxymorphone.

      Finally, Springer contends that this case “lacks the factors that have led courts to

find that possession of a firearm by a confederate was reasonably foreseeable to the

defendant”: this is not a case, like Kimberlin, “where the defendant actually saw a

confederate with a gun in his hands,” nor is it a case, like Gomez-Jimenez, “where the

defendant helped maintain [a] home that was being used as a location to distribute drugs

and where firearms were stored.” Opening Br. at 14–15. Springer reads our precedents

too narrowly. In Kimberlin and Gomez-Jimenez, we merely described relevant facts that

supported the district courts’ foreseeability findings. See Kimberlin, 18 F.3d at 1160;

Gomez-Jimenez, 750 F.3d at 382. We have never required that a defendant participate in

setting up a drug house or have actual knowledge of a firearm in order to apply the

dangerous weapon enhancement as relevant conduct. Indeed, in Kimberlin, we upheld the

district court’s application of the dangerous weapon enhancement to three co-conspirators,

including one co-conspirator for whom we referenced no facts showing actual knowledge.

See Kimberlin, 18 F.3d at 1160.

                                             B.

      Springer additionally challenges his five-year term of supervised release as

substantively unreasonable, contending that the sentence is greater than necessary to


                                             7
further the purposes of supervised release. 2       We disagree.    The district court cited

Springer’s “criminal history, including [crimes] of violence, as well as . . . substance abuse

issues and a lack of education” in imposing the five-year term, and stated that “a lengthier

term of supervised release will provide additional support and supervision to both assist

Mr. Springer in returning to society and to protect the public after his completion of a term

of imprisonment.” These are proper considerations in imposing a term of supervised

release, see 18 U.S.C. § 3583(c), and the court’s imposition of a five-year term was not an

abuse of discretion, especially in light of the below-Guidelines term of imprisonment

imposed by the court. See United States v. Helton, 782 F.3d 148, 155 (4th Cir. 2015).



                                             III.

       For the foregoing reasons, the judgment of the district court is

                                                                                AFFIRMED.




       2
        At oral argument, counsel for Springer confirmed that Springer challenges the
supervised release term on substantive reasonableness grounds.


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