                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-4321


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTONIO DONTA KEITT,

                Defendant - Appellant.



                              No. 15-4461


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TREMAINE ANTWAUN BROWN,

                Defendant - Appellant.




Appeals from the United States District Court for the Middle of
North Carolina, at Greensboro.   William L. Osteen, Jr., Chief
District Judge, Catherine C. Eagles, District Judge.  (1:14-cr-
00285-WO-4, 1:14-cr-00285-CCE-1)


Submitted:   March 30, 2016                 Decided:   April 25, 2016


Before MOTZ, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Sue Genrich Berry, BOWEN & BERRY, PLLC, Lumberton, North
Carolina; Raymond C. Tarlton, TARLTON LAW PLLC, Raleigh, North
Carolina, for Appellants.   Ripley Rand, United States Attorney,
Graham Tod Green, Michael Francis Joseph, Assistant United
States Attorneys, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Antonio Donta Keitt and Tremaine Antwaun Brown pled guilty,

pursuant   to   written    plea   agreements,    to       the   following:     (1)

Keitt pled guilty to conspiracy to distribute cocaine base and

distributing and possessing with intent to distribute cocaine

base, 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846 (Counts 1 and 16);

(2) Brown pled guilty to conspiracy to distribute cocaine base

and possession of a firearm in furtherance of a drug trafficking

offense,      21   U.S.C.         §§   841(a)(1),          846;     18       U.S.C.

§ 924(c)(1)(A)(i) (Counts 1 and 21).

     Keitt was sentenced to 144 months on each count, to run

concurrently.      Brown    was    sentenced    to    a    total   term   of   204

months’ imprisonment.       They appeal and have filed a joint brief.

Keitt asserts that the district court plainly erred in applying

a two-level sentencing enhancement for maintaining a premises

for the purpose of distributing a controlled substance, U.S.

Sentencing Guidelines Manual (USSG) § 2D1.1(b)(12), and erred in

applying the two-level firearm enhancement, id. § 2D1.1(b)(1).

Brown argues that the factual basis was insufficient to support

his guilty plea to the firearm offense. *                 Finding no error, we

affirm.


     *We note that, although Brown’s plea agreement contains an
appellate waiver provision, the Government has not unequivocally
asserted the waiver. Accordingly, we will not sua sponte apply
(Continued)
                                       3
       No.     15-4321.          Keitt   raises         two   issues   regarding         his

sentence.          His first claim—that the district court erroneously

applied the two-level enhancement under USSG § 2D1.1(b)(12)—is

reviewed for plain error as he did not challenge the enhancement

in the district court.                 To satisfy the plain error standard,

Keitt       must   show   (1)    an    error;    (2)     that   is   plain;      (3)    that

affects substantial rights; and (4) that seriously affects the

fairness,          integrity      or     public          reputation     of       judicial

proceedings.         United States v. Webb, 738 F.3d 638, 640-41 (4th

Cir. 2013).         Keitt cannot meet this standard.

        The Guidelines provide that “[i]f the defendant maintained

a premises for the purpose of manufacturing or distributing a

controlled         substance,     increase       [the    sentence]     by    2   levels.”

USSG    §    2D1.1(b)(12).       According       to     the   Guidelines     commentary,

“[a]mong the factors the court should consider in determining

whether the defendant maintained the premises are (A) whether

the    defendant      held   a    possessory      interest      in   (e.g.,      owned    or

rented) the premises and (B) the extent to which the defendant

controlled access to, or activities at, the premises.”                                 Id. §

2D1.1 cmt. n.17.             “Manufacturing or distributing a controlled


the waiver.         See United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005).




                                             4
substance need not be the sole purpose for which the premises

were maintained, but must be one of the defendant’s primary or

principal uses for the premises.”                Id.

       Keitt does not dispute that the controlled purchases were

made at his residence.              Moreover, a search of the residence

after    the    controlled     purchases         resulted     in      the     seizure    of

fifteen ounces of cocaine base and $5600 in cash.                              There are

also    statements      in   the   record       from    witnesses       detailing       drug

activity       at   Keitt’s    residence,         including       a    statement        that

Keitt’s residence was a known “crack house.”                           On these facts,

Keitt    cannot      establish       that        the    application           of   the     §

2D1.1(b)(12) enhancement constituted plain error affecting his

substantial rights.

       Next,    Keitt    asserts     that       the    district       court    improperly

applied the two-level Guidelines enhancement for possession of a

firearm.       We review application of the § 2D1.1(b)(1) enhancement

for clear error.        United States v. Manigan, 592 F.3d 621, 630–31

(4th Cir. 2010).         In order for the enhancement to apply, “the

Government must prove by a preponderance of the evidence that

the weapon was possessed in connection with drug activity that

was part of the same course of conduct or common scheme as the

offense of conviction.”            Id. at 628–29 (internal quotation marks

omitted).       “[P]roof of constructive possession of the [firearm]


                                            5
is   sufficient,       and    the     Government        is    entitled     to    rely     on

circumstantial     evidence         to   carry    its     burden.”        Id.        If   the

Government     carries       its    burden,      “[t]he      enhancement        should    be

applied . . . unless it is clearly improbable that the weapon

was connected with the offense.” USSG § 2D1.1 cmt. n.11(A). The

defendant     bears     the        burden   of    establishing        such       a    clear

improbability.        United States v. Slade, 631 F.3d 185, 189 (4th

Cir. 2011).     Keitt cannot make this showing.

     In addition to a co-conspirator’s testimony that he saw

Keitt   in    possession      of     a   firearm,       other    witnesses       provided

statements     that    there       was   widespread          possession    of    firearms

among members of the conspiracy.                  Thus, the district court did

not clearly err in finding that possession of firearms by other

conspirators was foreseeable to Keitt.                         See United States v.

Kimberlin, 18 F.3d 1156, 1160 (4th Cir. 1994) (upholding firearm

enhancement where possession by co-conspirators was reasonably

foreseeable to defendant).

     No. 15-4461.            Brown’s only claim on appeal is that the

amended      factual     basis        presented         by     the   Government           was

insufficient to support his conviction under 18 U.S.C. § 924(c)

for possession of a firearm in furtherance of a drug trafficking

offense.     Brown did not challenge the factual basis during his

Rule 11 hearing, other than to note his disagreement with being


                                            6
characterized      as   a    leader       or       organizer        of    the   conspiracy.

Therefore,    review        is    for     plain      error.          United      States       v.

Mastrapa, 509 F.3d 652, 656–57 (4th Cir. 2007).

     Under 18 U.S.C. § 924(c), the Government was required to

show that Brown knowingly and unlawfully possessed a firearm in

furtherance of the specified drug trafficking crime.                             See United

States   v.   Moore,        769    F.3d        264,        269-70        (4th   Cir.       2014)

(identifying elements and standard of review), cert. denied, 135

S. Ct. 1463 (2015).              In other words, “§ 924(c) requires the

government to present evidence indicating that the possession of

a   firearm   furthered,          advanced,          or     helped        forward      a    drug

trafficking crime.”          United States v. Lomax, 293 F.3d 701, 705

(4th Cir. 2002).

     The evidence presented in the amended factual basis was

sufficient    to    establish           the    necessary       elements         to     support

Brown’s conviction on the § 924(c) count. The amended factual

basis included statements from a witness that Brown “always had

a gun” for protection in case “Somebody roll up on me it’s a

done deal.”     J.A. 147.          In addition, the amended factual basis

stated that “[c]ooperating witnesses indicate that during the

conspiracy    [Brown        and    other           named     conspirators]           were    in

possession    of   firearms.”             J.A.      144.       The       district      court’s

reliance on these facts was not plainly erroneous.


                                               7
     Accordingly, we affirm.   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 in

the decisional process.

                                                        AFFIRMED




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