                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-4161


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

DAVID RHODES, a/k/a Crotch,

                Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:07-cr-00042-1)


Argued:   March 27, 2009                    Decided:   April 14, 2009


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Nicholas S. Preservati, PRESERVATI LAW OFFICES, PLLC,
Charleston, West Virginia, for Appellant.    Joshua Clarke Hanks,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.     ON BRIEF: Charles T. Miller, United States
Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       David Rhodes, who pleaded guilty in the Southern District

of West Virginia to a 21 U.S.C. § 846 drug conspiracy offense,

appeals      the    seventy-month      sentence       imposed        by   the   district

court.        More     specifically,         Rhodes      challenges       the    court’s

application of a Sentencing Guidelines offense level increase

for possession of a dangerous weapon during the conspiracy.                            See

USSG     § 2D1.1(b)(1)        (2007)   (the       “weapon       enhancement”).         As

explained below, we affirm.



                                         I.

       In March 2007, the grand jury in Beckley, West Virginia,

returned     a     two-count    indictment        against   Rhodes,       charging     him

with   (1)       conspiracy     to   manufacture         five    grams    or    more    of

methamphetamine,        in     contravention        of    21     U.S.C.    § 846     (the

“conspiracy        offense”),    and   (2)       possession     of   methamphetamine-

making chemicals, in violation of 21 U.S.C. § 841(c)(2) (the

“possession offense”).           That September, Rhodes pleaded guilty to

the conspiracy offense, pursuant to a written plea agreement, in

exchange for the government’s promise to move for dismissal of

the possession offense.              The district court accepted Rhodes’s

guilty plea, adjudged him guilty of the conspiracy offense, and

scheduled sentencing proceedings.



                                             2
     According to Rhodes’s Presentence Investigation Report (the

“PSR”),    the      conspiracy         offense        involved          a     methamphetamine-

manufacturing       conspiracy         that       operated        in    Roane     County,      West

Virginia, from late 2003 until September 29, 2006.                                       The PSR

reflects     that       Rhodes’s           activities        in        furtherance       of     the

conspiracy      included        providing         ingredients          used    to    manufacture

methamphetamine at the residence of Timothy Jones, arranging for

Clyde McQuain to purchase ingredients used by Rhodes to cook

methamphetamine            at         McQuain’s            home,         and         distributing

methamphetamine to customers in Roane County.                                  The PSR further

reflects     that       Rhodes    possessed           several          firearms      during     the

conspiracy:          for        example,         following         coconspirator         Jones’s

February    14,     2004    arrest          on    methamphetamine-related               charges,

Jones told police that, “about a month and a half before the . .

. arrest, David Rhodes had a gun with a laser sight which he

flashed on Mr. Jones’ head.”                 J.A. 109. 1          As detailed in the PSR,

Rhodes    was     arrested       on    state       charges     on       February       14,    2004,

September 12, 2004, and September 29, 2006, with those charges

later    being     dismissed          in    favor     of    the        federal       prosecution.

Pursuant     to     the    plea       agreement,        Rhodes          and    the    government

stipulated       that     “the    total          offense    and        relevant       conduct    is

     1
       Citations herein to “J.A.   ” refer to the contents of the
Joint Appendix filed by the parties in this appeal. The PSR is
contained in a sealed volume of the Joint Appendix.



                                                  3
between    20    grams   and     35   grams      of    actual   methamphetamine,        or

between    200    grams        and    350    grams     of   a    mixture    containing

methamphetamine.”        Id. at 111.

      The PSR calculated a total offense level of 27 for Rhodes

under the Sentencing Guidelines:                   a base offense level of 28,

see USSG § 2D1.1(c)(6) (2007); the two-level weapon enhancement,

id. § 2D1.1(b)(1); and a three-level reduction for acceptance of

responsibility, id. § 3E1.1.                 With a criminal history category

of I, the resulting advisory sentencing range was seventy to

eighty-seven months of imprisonment (within the statutory range

of five to forty years).

      Rhodes submitted written objections to the PSR, contending

that application of the weapon enhancement would be improper.

During the sentencing hearing conducted by the district court on

November    26,    2007,       the    defense      explained      that     “it   is    our

position    that     [Rhodes]          did    not      possess     [a]     firearm      in

furtherance of the conspiracy, and that the only firearms that

were in his residence [at the time of his February 14, 2004

arrest] under the guidelines aren’t attributable to him.”                             J.A.

14.

      The government presented two witnesses at the sentencing

hearing.    Coconspirator McQuain testified that he had witnessed

various    firearms       in     Rhodes’s        car   during    the     time    of   the

conspiracy and that Rhodes had told him about trading drugs for

                                             4
firearms, but that he did not know of any connection between the

various firearms and the conspiracy and that he had never seen

Rhodes engaging in a drugs-for-firearms transaction.                    McQuain

also testified that, at the time of his own June 14, 2004 arrest

on state charges, police found two handguns under a couch in his

home that had been left there earlier that day by Rhodes.

        Trooper Frederick L. Hammack of the West Virginia State

Police testified for the government that he had been assigned to

the Spencer (Roane County) detachment since October 2003 and had

been     receiving     information   about       Rhodes’s     methamphetamine-

trafficking activities since late that year.                 Hammack testified

that, on February 14, 2004, he had responded to a Roane County

Sheriff’s Department request for assistance after a shot was

fired    near    coconspirator   Jones’s       Tawney     Hollow   residence    in

southern Roane County.         While Hammack and another officer were

waiting at the mouth of the hollow for other officers to arrive,

Rhodes drove up in his vehicle, and then parked and exited the

vehicle to “lock[] in the hubs” for four-wheel drive.                  J.A. 29.

Hammack    and   the   other   officer       approached    Rhodes,   patted    him

down, obtained permission to search his vehicle, and, having

found no contraband in the vehicle, sent him on his way.                 Later,

however, the officers discovered a methamphetamine laboratory in

Jones’s residence and were told it belonged to Rhodes.                  Hammack

then secured a search warrant for Rhodes’s residence, a mobile

                                         5
home located on West Virginia Route 36 in Roane County.                                         There,

Hammack       found       materials          used    to       manufacture       and     distribute

methamphetamine — mainly in the kitchen/living room area, but

also    in     the    bedroom       —       including         “lots     of    little    glassware,

tubes, and things with residue in it,” “a lot of sandwich bags

with     the     corners       cut          out,”       and     “blister        packs      of    cold

medication.”         J.A. 30.

       Trooper       Hammack      testified             during     the       sentencing     hearing

that he had also searched Rhodes’s residence for “a black semi-

automatic       pistol       with       a    laser       sight     on    it,”     which     he    had

previously been told by sources that Rhodes would “break . . .

out    just    as     an    intimidation            factor.”          J.A.     30-31.       Hammack

indeed       found    a    firearm          fitting      that    description          in   Rhodes’s

bedroom,       along       with     one       or     two      other      firearms.          Hammack

acknowledged that he could not remember where in the bedroom the

firearms were located (such as the closet or a dresser drawer),

nor the precise number of firearms found (a total of two or

three).        He recalled the firearms being unloaded, and at least

the black pistol with the laser sight not being enclosed in a

gun case.        When asked by the defense why he had not seized the

firearms or mentioned them in his subsequent report (even though

he    had     listed       firearms         in   the      search      warrant     application),

Hammack explained:



                                                    6
            At the time, I had never done any federal cases.
       In state court, firearms aren’t — there’s no
       enhancement. That’s not the way things are here. And
       I was very inexperienced in that.    And had I known
       what I know now, obviously I would have seized those
       firearms.

            But at the time, it didn’t really seem that
       significant because [Rhodes] wasn’t a convicted felon.
       . . . [L]ooking back knowing what I know now, I would
       have taken them.    But I didn’t know.    It was just
       inexperience.

J.A. 33. 2

       The defense called one witness at the sentencing hearing,

Rhodes’s girlfriend Shelley Lynn Wagner, who was residing with

Rhodes and present in the home at the time of the February 14,

2004 search.       Wagner testified that there were two or three

firearms in the bedroom, including one pistol that belonged to

her.       According to Wagner, the firearms were kept unloaded in

the top of the bedroom closet under clothes and other “junk,”

and thus were not easily accessible.     J.A. 41.   At least one of

       2
       The defense pointed out to Trooper Hammack that, on the
same day Rhodes’s home was searched, the officers searching
coconspirator Jones’s residence (including Hammack) seized three
loaded handguns from that residence. Hammack explained that the
handguns were seized from Jones’s residence because “[t]hose
guns were the reason that I was called there,” i.e., to assist
with the response to a shot being fired, and “that was a
dangerous situation for our guys when they went in [because the
handguns] were loaded and either in hands or on a person.” J.A.
35. By contrast, although Hammack had been told that Rhodes had
used his black pistol with the laser sight to intimidate people,
“Mr. Rhodes didn’t have that firearm in his hands when we came
in,” and “[i]t wasn’t an immediate threat to any of my
officers.” Id. at 36.



                                  7
the firearms had a trigger lock, and at least one was kept in a

locked case.       Wagner did not know of any ammunition in the

residence that fit those firearms.

     After hearing argument from the parties, the district court

discussed    the   applicable   burden       of     proof   for   the    weapon

enhancement,    explaining    that    “we     are    here   to    find   by   a

preponderance of the evidence whether it was clearly improbable

that a weapon present at a scene is connected with the offense.”

J.A. 53.     That is, the government “need only show that a weapon

was present and the enhancement applies unless the defendant

carries a burden, unusual burden shifting in a criminal case[,]

that it was clearly improbable that the gun was involved in the

drug business.”      Id. at 54.           The court advised that it was

continuing the sentencing hearing until January 11, 2008, so

that it could further deliberate on the applicability of the

weapon     enhancement.      Before       recessing,    though,    the    court

announced the following findings of fact:

     I find by a preponderance of the evidence that there
     were firearms present at the defendant’s residence at
     the time a search warrant was conducted which also
     turned up methamphetamine residue and paraphernalia at
     that residence consistent with the manufacture of
     methamphetamine at some time at some place, and
     consistent   with  the  defendant’s  guilt   of  being
     involved    in    a    conspiracy    to    manufacture
     methamphetamine.

          I find . . . by a preponderance of the evidence
     that the weapons were in the bedroom, whereas the bulk
     of the evidence seized was in the living room area.

                                      8
           I further find by a preponderance of the
      evidence, based on the testimony of the state
      policeman, that the bedroom is in close proximity to
      the living room, it being a mobile home.

           I make no finding about what weapons or the
      description of the weapons that were found as I can’t
      readily determine a description of the weapons except
      that they appear to be handguns and not long guns.
      And that’s the only finding I would make regarding the
      character of the guns.

                                    * * *

           [However,] I do find[,] based on the trooper’s
      testimony[,] that one of the guns was black and had a
      laser sight, but I don’t know what kind of gun it was.

J.A. 55-56.

      The parties subsequently submitted supplemental memoranda

to the district court.          When the sentencing hearing resumed on

January 11, 2008, the court announced that it was overruling

Rhodes’s objections to the weapon enhancement and finding “that

the Government proved by a preponderance of the evidence that

Mr.   Rhodes    possessed   a   firearm   during   the   commission   of   the

offense.”      J.A. 85.   The court explained:

           At the time the search warrant was executed, the
      firearms were discovered in the defendant’s bedroom
      while methamphetamine residue and drug paraphernalia
      consistent with the manufacture of methamphetamine
      were discovered in the adjacent kitchen/living room
      area, and also within the bedroom.

           Most of the stuff was in the kitchen and living
      room area, according to the evidence, but some
      glassware testing positive for methamphetamine residue
      was found in the bedroom where the guns were found.


                                      9
Id.   The court further found that it was “not clearly improbable

that the firearms were connected to the offense.”             Id.    On this

point, the court explained:

           The guns found in Mr. Rhodes’s bedroom were
      handguns, one having a laser sight, the fact of a
      weapon with a laser sight being consistent with one of
      the witness’s statements in the [PSR] that he had seen
      Mr. Rhodes with a gun with a laser sight and which the
      witness said Mr. Rhodes had pointed at his head. The
      guns and drug paraphernalia were found in close
      proximity within the house.

           . . . .

           Again,    Timothy    Jones     said   that  the
      methamphetamine was cooked in his residence and he’s
      the one that talked about the laser sight.

Id. at 85-86.        The court then confirmed that there were no

“additional objections from either party,” and expressly adopted

the PSR based on the finding that there was “sufficient indicia

of reliability to support the probable accuracy of the matters

contained” therein.      Id. at 86.      Asked for clarification by the

defense,   the   court   stated   that   “[t]he    weapons   in    [Rhodes’s]

home” — and not any firearms discussed by coconspirator McQuain

in his testimony — “are the finding upon which I rely for the

enhancement.”    Id. at 92.

      The district court considered the advisory Guidelines range

(seventy to eighty-seven months) and the 18 U.S.C. § 3553(a)

factors, and then sentenced Rhodes to seventy months.               That same

day   (January   11,     2008),   the    court    entered    its    judgment,


                                    10
reflecting Rhodes’s conviction on the conspiracy offense, the

dismissal of the possession offense on the government’s motion,

and the imposition of the seventy-month sentence.

     Rhodes timely noted this appeal, challenging the court’s

application of the Guidelines weapon enhancement.                               We possess

jurisdiction          pursuant      to   18   U.S.C.     § 3742(a)       and    28   U.S.C.

§ 1291.



                                              II.

        We    review    a    sentence      imposed      by   a    district      court   for

reasonableness, applying an abuse of discretion standard.                               See

Gall v. United States, 128 S. Ct. 586, 591 (2007); United States

v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).                              Generally, in

order to determine whether a sentencing court has abused its

discretion, we engage in a two-step analysis.                           Pauley, 511 F.3d

at   473.         First,       we   examine    the     sentence      for    “significant

procedural errors,” and, second, we evaluate the substance of

the sentence.          Id.

      In       this    appeal,      Rhodes    challenges         only    the    procedural

reasonableness of his sentence.                     More specifically, he contends

that the district court committed “significant procedural error”

by “improperly calculating[] the Guidelines range.”                              Gall, 128

S. Ct. at 597; see also id. at 596 (observing that “a district

court        should    begin     all     sentencing     proceedings        by    correctly

                                              11
calculating       the     applicable         Guidelines    range”).              In   assessing

whether a sentencing court properly applied the Guidelines, we

review    the     court’s      factual       findings     for    clear       error     and   its

legal conclusions de novo.                   See United States v. Osborne, 514

F.3d 377, 387 (4th Cir. 2008).



                                              III.

      For offenses falling under section 2D1.1 of the Sentencing

Guidelines,       the     weapon       enhancement       provides          for   a    two-level

increase     in    the    defendant’s          offense    level       “[i]f      a    dangerous

weapon (including a firearm) was possessed.”                              USSG § 2D1.1(b)(1)

(2007).           According       to     the     Guidelines          commentary,         “[t]he

enhancement for weapon possession reflects the increased danger

of violence when drug traffickers possess weapons.”                               Id. § 2D1.1

cmt. n.3.       The Guidelines instruct that the enhancement “should

be applied if the weapon was present,” id. — that is, if the

government        shows    “that       the    weapon     was    possessed         during     the

relevant illegal drug activity,” United States v. McAllister,

272   F.3d   228,       234    (4th    Cir.     2001).         The    Guidelines        further

instruct, however, that the enhancement should not be applied if

“it is clearly improbable that the weapon was connected with the

offense.”       USSG § 2D1.1 cmt. n.3.               “For example,” the Guidelines

illustrate,        “the       enhancement       would     not        be    applied     if    the



                                               12
defendant, arrested at his residence, had an unloaded hunting

rifle in the closet.”            Id.

       Here, the district court properly recognized that, under

our    precedent,      it    was    the   government’s            burden    to   prove    the

presence of a weapon and Rhodes’s burden to establish the clear

improbability that the weapon was connected to his conspiracy

offense.    See United States v. Harris, 128 F.3d 850, 852-53 (4th

Cir.    1997).        In    finding     that    the       government      had    proven   the

presence of a weapon and that Rhodes had failed to establish

that it was clearly improbable the weapon was connected with his

offense, the court relied on the following findings of fact:

(1) firearms and methamphetamine-making materials were present

in    Rhodes’s   residence         at   the    time       of    the   February     14,    2004

search    thereof;         (2)   the    bulk        of    the    methamphetamine-making

materials were found in the kitchen/living room area, but some

such     materials         (including     glassware             testing     positive      for

methamphetamine residue) were found in the nearby bedroom, where

the firearms were also found; (3) the firearms were “handguns”

and not “long guns”; (4) one of the handguns was black and had a

laser sight, consistent with the description of a firearm that,

according to coconspirator Jones, Rhodes had recently pointed at

Jones’s head; and (5) Jones had also stated that methamphetamine

was    cooked    at    his    residence.            See    J.A.    55-56,    85-86.        The

information from Jones was outlined in Rhodes’s PSR, which the

                                               13
district     court     found     to       be    sufficiently         reliable   and,     thus,

adopted.

       Simply put, the district court did not clearly err in its

application of the weapon enhancement.                      See McAllister, 272 F.3d

at 234 (reviewing application of weapon enhancement for clear

error).      First of all, the presence of methamphetamine-related

materials      in     Rhodes’s        residence         while        the    conspiracy     was

ongoing,      in     close   physical           proximity       to    the    firearms,    was

sufficient      to     support      a      finding      that     Rhodes      possessed    the

firearms during the conspiracy.                      The evidence demonstrates that,

even    if    methamphetamine             was    not    cooked        in    Rhodes’s     home,

methamphetamine-making                materials          were        stored     there      in

furtherance of the conspiracy.                   As we have recognized,

       possession of the weapon during the commission of the
       offense is all that is needed to invoke the [weapon]
       enhancement.   . . . [W]hen the offense committed is
       conspiracy, [any geographical and temporal] proximity
       conditions are met when the weapon is discovered in a
       place where the conspiracy was carried out or
       furthered.

United States v. Apple, 962 F.2d 335, 338 (4th Cir. 1992); see

also Harris, 128 F.3d at 852 (“We now unequivocally affirm the

rule, already recognized in several other circuits, that the

proximity of guns to illicit narcotics can support a district

court’s      enhancement       of     a    defendant’s         sentence      under     Section

2D1.1(b)(1).”).



                                                14
     Furthermore, the application of the weapon enhancement to

Rhodes is supported by the district court’s finding that one of

the firearms discovered in Rhodes’s home — a black handgun with

a laser sight — matched the description of a firearm that Rhodes

had pointed at the head of Jones, who cooked methamphetamine as

part of the conspiracy.          The court was entitled to rely for its

finding on information in the PSR, because there was no showing

that this aspect of the PSR was inaccurate.               See United States

v.   Love,   134    F.3d   595,    606    (4th   Cir.   1998)   (“Without      an

affirmative showing the information is inaccurate, the court is

free to adopt the findings of the presentence report without

more specific inquiry or explanation.” (internal quotation marks

and alterations omitted)).

     We are not persuaded by Rhodes’s attempts to show that the

district court erred by not finding a clear improbability that

the firearms discovered in his home on February 14, 2004, were

connected to his conspiracy offense.             For example, Rhodes points

to the fact that Trooper Hammack declined to seize the firearms

or   note    them    in    his    subsequent     report   —     a   fact     that

demonstrates, in Rhodes’s view, that “Hammack did not believe

the weapons . . . were connected to the drug activity.”                    Br. of

Appellant 18.       The sentencing court was entitled, however, to

accept Hammack’s explanation of why he did not seize Rhodes’s

firearms.     Additionally, the court was not required to either

                                         15
draw the inference that Hammack did not believe the firearms

were connected to the conspiracy offense, or to deem any such

belief to be binding on the court.

        Rhodes also relies on the testimony of girlfriend Wagner

that “[t]he weapons were unloaded [and] stored in a closet in

the bedroom”; “[s]everal of the weapons had trigger locks or

were placed in gun cases,” with “[a]t least one of the gun cases

[being] locked”; “[t]here was no ammunition for the guns in the

residence”;      and   “[n]umerous     items   were    placed    on    top    of   the

weapons, thereby interfering with their accessibility.”                       Br. of

Appellant 19-20.         Unfortunately for Rhodes, we have recognized

“that the mere fact that a weapon is unloaded cannot prevent a

court    from    enhancing     a    sentence   under     Section      2D1.1(b)(1).”

Harris,    128   F.3d    at   853    (explaining    that    “even      an    unloaded

firearm enhances the risk of violence,” in that such weapon may

be “employ[ed] . . . to intimidate others” and “may encourage

others to resort to weapons in response”).                      Moreover, simply

because Rhodes’s firearms were not in use or readily accessible

at the time of the search does not mean they were not connected

to the conspiracy, as demonstrated by the evidence that Rhodes

had recently pointed one of the guns at coconspirator Jones’s

head.      Indeed,      the   district    court    was    careful      to    identify

Rhodes’s firearms as “handguns” and not “long guns,” J.A. 56,

thus implicitly equating them with the sort of firearms useful

                                         16
to a drug manufacturing conspiracy, and distinguishing them from

the unloaded hunting rifle in the closet that the Guidelines

instruct would not justify the weapon enhancement.

     In these circumstances, we must reject Rhodes’s contention

that the district court erred by applying the weapon enhancement

in calculating his advisory Guidelines range. 3      As such, the


     3
       We also reject Rhodes’s contention that the district
court’s application of the weapon enhancement contravened his
constitutional rights.   More specifically, requiring Rhodes to
show that it was clearly improbable that his firearms were
connected to his drug conspiracy offense did not violate his due
process rights, either by creating an impermissible presumption
of a firearm-offense connection that it was his burden to rebut,
or by imposing a too-stringent clearly improbable standard. As
one of our sister courts of appeals has explained,

     the language of the Guidelines does not require that a
     connection be shown.     Rather, it requires only that
     the weapon be possessed during commission of the
     offense.     The Commentary, therefore, creates an
     exception to the terms of the Guideline, not a
     presumption that a connection existed.        The Due
     Process Clause does not require that the government
     prove the absence of every possible exception or
     mitigating circumstance.

United States v. Restrepo, 884 F.2d 1294, 1296 (9th Cir. 1989);
see also United States v. Bjorkman, 270 F.3d 482, 492-93 (7th
Cir.   2001)  (rejecting   due   process   challenge to  weapon
enhancement burden-shifting scheme); United States v. McGhee,
882 F.2d 1095, 1097-99 (6th Cir. 1989) (same).

     Finally, the weapon enhancement did not contravene Rhodes’s
Second Amendment rights.   Rhodes contends that, under District
of Columbia v. Heller, 128 S. Ct. 2783 (2008), he was entitled
to possess firearms in his home.    The Heller Court emphasized,
however, that “the right secured by the Second Amendment is not
unlimited,” and that “nothing in our opinion should be taken to
cast doubt on longstanding” regulatory measures, such as
“prohibitions on the possession of firearms by felons and the
(Continued)
                               17
court committed no significant procedural error, and thus did

not abuse its discretion, in sentencing Rhodes.



                                  IV.

     Pursuant   to   the   foregoing,   we   affirm   the   seventy-month

sentence imposed by the district court on Rhodes.

                                                                 AFFIRMED




mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial
sale of arms.”   Id. at 2816-17 & n.26 (providing nonexhaustive
list of “presumptively lawful regulatory measures”).



                                  18
