UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5620

THOMAS MICHAEL AVERITTE,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Rockingham.
N. Carlton Tilley, Jr., District Judge.
(CR-94-273)

Submitted: March 5, 1996

Decided: June 18, 1996

Before HALL and MICHAEL, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Thomas Michael Averitte pled guilty to conspiracy to possess con-
trolled substances with intent to distribute, 21 U.S.C.A. § 846 (West
Supp. 1995), and distribution of Diazepam (Valium) and lysergic acid
diethylamide (LSD), 21 U.S.C.A. § 841 (West 1981 & Supp. 1995).
He was acquitted of using or carrying a firearm in relation to a drug
trafficking offense, 18 U.S.C.A. § 924(c) (West Supp. 1995). Averitte
was sentenced to a term of 30 months imprisonment. He appeals his
sentence, contending that the district court clearly erred in enhancing
his sentence for possession of a shotgun, USSG § 2D1.1(b)(1).* He
also challenges the constitutionality of Application Note 3 to USSG
§ 2D1.1, alleging that it requires the defendant to disprove an aggra-
vating factor. We affirm.

Averitte and Jessica Cunningham sold marijuana, codeine tablets,
Valium, and LSD to a confidential informant a number of times in
December 1993 and February 1994. The sales were made in the house
shared by Averitte and Cunningham. During these transactions, the
informant saw a shotgun in various places in the house, including
under the sofa where the marijuana was kept. He also saw Averitte
shooting the shotgun in his back yard. Averitte told the informant the
shotgun was his and that he had once used it for hunting. When
Averitte's house was searched in March 1994, the unloaded shotgun
was found under the sofa next to a box containing marijuana.

In calculating Averitte's sentence, the probation officer recom-
mended a 2-level enhancement under USSG § 2D1.1(b)(1) for the
presence of a firearm, to which Averitte objected. At the sentencing
hearing, defense counsel argued that the evidence at trial showed that
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).

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the shotgun was used for hunting and was not connected to the drug
offense. However, the district court found, based on the trial evidence,
that the government had proved "that the gun not only was present but
connected with the offense."

We need not reach the constitutional issue raised by Averitte
because the burden of proof was never shifted to him. Rather than
simply finding that the shotgun was present during the offense, which
would have allowed Averitte an opportunity to show that the gun was
unconnected to the offense, the district court stated, "I think the gun
clearly was connected with the drug offense and, of course, the stan-
dard here is whether it was clearly improbable that it had a connec-
tion. I think it clearly was connected." We find, moreover, that the
district court did not clearly err in so ruling.

We therefore 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 argu-
ment would not aid the decisional process.

AFFIRMED

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