     14-3147-cr
     United States v. Sam

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
     BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
     WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
     NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
     OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   25th day of August, two thousand fifteen.
 4
 5   Present:    GUIDO CALABRESI,
 6               CHESTER J. STRAUB,
 7               ROSEMARY S. POOLER,
 8                           Circuit Judges.
 9   _____________________________________________________
10
11   UNITED STATES OF AMERICA,
12
13                                 Appellee,
14
15                          v.                                                  14-3147-cr
16
17   EDWARD CHAVIN, AKA Tommy, CHRISTOPHER
18   NASON, JAMES NASTRI, NICOLE RIVERS, LAURA
19   URBAN, AKA Laura Zakhar, BRYAN RICHARDS,
20   AKA Chico, CHRISTIAN C STILLER, CHANDRA SAM,
21   AKA Po,
22
23                                 Defendants,
24
25   BUNTHAN SAM, AKA Adam, AKA Taun,
26
27                           Defendant-Appellant.
28   _____________________________________________________
29
30   Appearing for Appellant:      Richard R. Goldsborough, Kirkpatrick & Goldsborough, PLLC,
31                                 South Burlington, VT.
 1
 2   Appearing for Appellee:        Christina E. Nolan, Assistant United States Attorney (Gregory L.
 3                                  Waples, Assistant United States Attorney, on the brief), for
 4                                  Eugenia A.P. Cowles, Acting United States Attorney for the
 5                                  District of Vermont, Burlington, VT.
 6
 7   Appeal from the United States District Court for the District of Vermont (Sessions, J.).
 8
 9        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
10   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
11
12            Defendant-Appellant Bunthan Sam appeals from the August 18, 2014 judgment of the
13   United States District Court for the District of Vermont (Sessions, J.), sentencing him principally
14   to 120 months’ imprisonment, following his guilty plea to one count of conspiracy to distribute
15   100 grams or more of heroin, in violation of 21 U.S.C. §§ 846, 841(b)(1)(B).We assume the
16   parties’ familiarity with the underlying facts, procedural history, and specification of issues for
17   review.
18
19           Sam challenges the district court’s application of a two-level sentencing enhancement
20   pursuant to Section 2D1.1(b)(1) of the United States Sentencing Guidelines for possession of a
21   dangerous weapon during the drug trafficking conspiracy. Under our “reasonableness” standard
22   of review for sentencing challenges, the district court’s application of the Guidelines is subject to
23   de novo review. United States v. Cramer, 777 F.3d 597, 600–01 (2d Cir. 2015). A “sentencing
24   court’s finding that a firearm was possessed in connection with a drug offense for purposes of
25   § 2D1.1 will not be overturned unless it is clearly erroneous.” United States v. Santiago, 384
26   F.3d 31, 33 (2d Cir. 2004) (internal quotation marks omitted).
27
28           Here, the district court rested its application of the enhancement on, among other factual
29   findings, the discovery of an unloaded pistol in the engine compartment of a vehicle Sam drove
30   during the course of the conspiracy. Sam argues that in making this finding the district court
31   failed to determine explicitly who possessed the firearm and further lacked sufficient evidence to
32   conclude that Sam constructively possessed the weapon and that such possession occurred during
33   conduct relevant to the instant offense. We disagree.
34
35           “[A] defendant is subject to a two-level enhancement under § 2D1.1(b)(1) for possession
36   of a dangerous weapon if he constructively possessed the weapon by having dominion or control
37   over the item itself, or dominion over the premises where the item was located.” United States v.
38   Herrera, 446 F.3d 283, 287 (2d Cir. 2006) (internal quotation marks and alterations omitted).
39   We have little difficultly discerning from the court’s remarks at sentencing that it found Sam
40   constructively possessed the weapon. Further, as the driver of the vehicle, Sam exercised control
41   over the location where the weapon was found. That Sam’s brother was a passenger “is of no
42   moment” in determining whether Sam exercised constructive possession as “other individuals
43   also may have exercised control over the weapon[].” United States v. Dhinsa, 243 F.3d 635, 677
44   (2d Cir. 2001). And this is only one of several facts tying Sam to, and supporting his possession
45   of, the weapon found in the vehicle.
46


                                                       2
 1           The Section 2D1.1(b)(1) enhancement applies only if the defendant possessed the firearm
 2   during conduct relevant to the offense. See United States v. Smith, 215 F.3d 237, 241 (2d Cir.
 3   2000). “With respect to offenses involving aggregate harms, such as drug offenses, relevant
 4   conduct consists of all acts and omissions that were part of the same course of conduct or
 5   common scheme or plan as the offense of conviction.” United States v. Pellegrini, 929 F.2d 55,
 6   56 (2d Cir. 1991) (internal citation and quotation marks omitted); see U.S.S.G. § 1B1.3(a)(2).
 7   Sufficient evidence in the record supports the conclusion that the weapon was present during
 8   conduct relevant to the drug distribution conspiracy. Less than a week prior to the seizure of the
 9   gun, officers observed Sam drive the same vehicle to a controlled narcotics purchase. That
10   vehicle was also used by other members of the conspiracy for the interstate transport of drugs.
11   Sam argues that because no drugs were found in the car at the time the weapon was seized, the
12   gun was not possessed during the commission of the offense. However, transporting members of
13   a drug conspiracy for the purpose of carrying out a drug transaction is certainly conduct relevant
14   to a drug distribution conspiracy. See United States v. Sweet, 25 F.3d 160, 162–63 (2d Cir. 1994)
15   (holding enhancement applicable where drugs had been stored and altered in same trailer as
16   guns, even though no drugs were located during search).
17
18            As Sam offered no evidence to “demonstrate[] that it [wa]s clearly improbable that the
19   weapon was connected with the drug offense,” Smith, 215 F.3d at 241, we conclude that the
20   district court did not err in finding that Sam possessed the firearm during conduct relevant to the
21   conspiracy nor in applying the two-level enhancement provided by Section 2D1.1(b)(1).1
22
23          We have considered the remainder of Sam’s arguments and find them to be without
24   merit. Accordingly, the judgment of the district court hereby is AFFIRMED.
25
26                                                        FOR THE COURT:
27                                                        Catherine O’Hagan Wolfe, Clerk
28
29
30




     1
       Given this conclusion, we need not address whether the district court’s additional factual
     findings as alternative bases for applying the enhancement were clearly erroneous.

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