                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-4046


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BRIAN LEE FOSTER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:08-cr-00087-FL-1)


Submitted:   December 7, 2010              Decided:   December 28, 2010


Before WILKINSON, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Eric D. Goulian, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A   federal      jury       convicted      Brian       Lee        Foster     of

conspiracy to possess with intent to distribute and distribute

cocaine, in violation of 21 U.S.C. § 846 (2006).                          The district

court sentenced Foster to 324 months of imprisonment and he now

appeals.    Finding no error, we affirm.

            Foster first challenges the district court’s denial of

his   motion    to    dismiss    the     indictment        as     unconstitutionally

vague.      However,     Foster     failed      to   file        objections        to   the

magistrate judge’s report after receiving proper notice of the

requirement     to    file   objections,         and       has    therefore        waived

appellate review of this issue.               See Wright v. Collins, 766 F.2d

841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S.

140 (1985); Fed. R. Crim. P. 59(a).

            Moreover,     Foster’s      claim    fails      on    the    merits.         We

review the denial of a motion to dismiss an indictment de novo.

United States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997).

Fed. R. Crim. P. 7(c)(1) requires an indictment to be a “plain,

concise, and definite written statement of the essential facts

constituting    the    offense     charged.”         “In    order    to       be   legally

sufficient,     an    indictment    must      contain      the     elements        of   the

offense charged, fairly inform a defendant of the charge, and

enable the defendant to plead double jeopardy as a defense in a

future     prosecution    for     the    same     offense.”             Id.    (internal

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quotation     marks      and     citation         omitted).         An    indictment    is

generally sufficient if it alleges an offense “in the words of

the statute.”       United States v. Wicks, 187 F.3d 426, 427 (4th

Cir. 1999) (citing Hamling v. United States, 418 U.S. 87, 117

(1974)).      Here, the subject indictment tracked the statutory

language, cited the charging statute, and listed the elements of

the   charge.           We     therefore      find     that     the      indictment     was

sufficient.

            Foster next argues that the district court abused its

discretion in denying his motion to transfer venue.                             This court

reviews a district court’s denial of a motion to transfer venue

for abuse of discretion.                See United States v. Heaps, 39 F.3d

479, 482 (4th Cir. 1994), abrogated on other grounds, United

States v. Cabrales, 524 U.S. 1 (1998).                        Fed. R. Crim. P. 21(b)

provides    that    the       court    may    transfer    a    proceeding,       upon   the

defendant’s motion, to another district “for the convenience of

the parties and witnesses and in the interests of justice.”

            In deciding such a motion, the district court should

consider the (a) location of the defendant; (b) location of the

possible witnesses; (c) location of the events likely to be at

issue;     (d)     location       of     relevant        documents        and     records;

(e) potential for disruption of the defendant’s businesses if

transfer is denied; (f) expenses to be incurred by the parties

if    transfer     is        denied;    (g)       location     of     defense     counsel;

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(h) relative accessibility of the place of trial; and (i) docket

conditions of each potential district.                      Platt v. Minn. Mining &

Mfg.   Co.,    376      U.S.       240,    243-44      (1964).         No     one   of    these

considerations is dispositive, and “[i]t remains for the court

to try to strike a balance and determine which factors are of

greatest importance.”                United States v. Stephenson, 895 F.2d

867, 875 (2d Cir. 1990).               We have thoroughly reviewed the record

and conclude that the court did not abuse its discretion in

denying Foster’s motion to transfer venue.

              Finally,       Foster        challenges        the       district         court’s

application of an enhancement under the sentencing guidelines

for    possession       of     a    firearm.           Whether     the       district     court

properly applied an enhancement under the guidelines is reviewed

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

(4th Cir. 2001).             We will “find clear error only if, on the

entire   evidence,        [we       are]   left      with    the    definite        and    firm

conviction that a mistake has been committed.”                              United States v.

Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation

marks and citation omitted).

              Under the guidelines, a district court must increase a

defendant’s        offense         level   by       two   levels       if     the   defendant

possessed      a    dangerous         weapon,        including     a     firearm.         U.S.

Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1) (2009).                                 The

enhancement        is   proper        when      “the      weapon    was       possessed     in

                                                4
connection with drug activity that was part of the same course

of    conduct      or       common    scheme       as     the     offense    of      conviction.”

Manigan, 592 F.3d at 628-29 (internal quotation marks omitted).

Moreover, “[t]he adjustment should be applied if the weapon was

present, unless it is clearly improbable that the weapon was

connected       with        the    offense.”             McAllister,       272       F.3d      at   234

(citing USSG § 2D1.1(b)(1) cmt. n.3).

              “In assessing whether a defendant possessed a firearm

in connection with relevant drug activity, a sentencing court is

entitled     to      consider        .     .   .   the     type    of     firearm         involved.”

Manigan, 592 F.3d at 629 (citation omitted).                                In addition, the

court should consider “the location or proximity of a seized

firearm” in determining whether it was possessed in connection

with drug activity.                  Id.       The government bears the burden of

demonstrating that the enhancement applies by a preponderance of

the    evidence.             Id.     at    630-31.           “[T]he       burden      of       showing

something       by      a    preponderance          of    the     evidence       .    .    .   simply

requires the trier of fact to believe that the existence of a

fact    is   more       probable          than     its    nonexistence.”              Id.      at   631

(internal quotation marks and citation omitted).

              We     have      reviewed          the     record    and    conclude          that    the

district court did not commit clear error in finding it was not

clearly      improbable           that     the      weapon      was      connected        with      the

offense.        Accordingly, we affirm the judgment of the district

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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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