                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-4307


UNITED STATES OF AMERICA,

                Plaintiff − Appellee,

           v.

WARREN DEVIN MOSELEY,

                Defendant − Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:13-cr-00282-JAB-1)


Argued:   September 17, 2015                 Decided:   October 6, 2015


Before WILKINSON, AGEE, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: William J. Stevens, Bridgman, Michigan, for Appellant.
Clifton Thomas Barrett, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.       ON BRIEF: Ripley
Rand, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Appellant         Warren     Moseley         pleaded    guilty    to     distributing

cocaine     base.       When    the     district      court    sentenced       Moseley,       it

applied a two-point enhancement for possession of a firearm in

connection with a drug-trafficking crime. U.S.S.G. § 2D1.1(b)(1)

(2014). We hold that ample factual support justified imposition

of the enhancement and thus affirm the judgment. *

                                                I.

      On    July    11,        2013,    the     Richmond      County,    North        Carolina

Sheriff’s Office directed a confidential informant to arrange

for the purchase of cocaine base from Moseley. The sale occurred

at   Moseley’s      residence.          The   police     recorded      the     sale    with a

camera hidden in the confidential informant’s clothes. J.A. 13-

14, 68.

      About       one    month    later,        on   August    13,     2013,    the    police

executed      a    search       warrant       on     Moseley’s       residence.       In   the

kitchen,      the        officers        found       a   dogfood        bag      containing

approximately       32    grams        (gross      weight)    of   cocaine     base     and   a

razor blade. They also found digital scales next to a box of

plastic baggies. In the master bedroom, the officers discovered

a 9mm handgun, a magazine, and receipts bearing Moseley’s name.

J.A. 68.

      *    The court denies the government’s motion to dismiss the
appeal.


                                                2
     While     the   police       were       searching     the       residence,     Marquita

Smith     arrived    and       asked     what      was    happening.          The   officers

explained      to   her    that     a   confidential           informant      had   recently

purchased drugs at the residence, and that this had prompted a

search for further evidence of drug activity. Smith told the

police that Moseley frequented the residence as he pleased, and

that she and Moseley had a child together. Smith then provided a

written statement to the police saying that only she and Moseley

held a key to the residence and that any drugs or weapons found

there belonged to Moseley. J.A. 68.

     The government thereafter obtained a three-count indictment

charging Moseley with (1) distribution of 30.94 grams of cocaine

base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); (2)

possession with the intent to distribute approximately 32 grams

of cocaine base also in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B); and (3) possession of a firearm in furtherance of a

drug-trafficking crime in violation of 18 U.S.C.

§ 924(c)(1)(A)(i). J.A. 7-8.

     On    October        7,   2013,     Moseley      struck      a    plea    bargain.   He

agreed    to    plead      guilty       to    count      one    in    exchange      for   the

government’s promise to move for dismissal of counts two and

three. The district court accepted Moseley’s guilty plea that

same day. J.A. 16-22, 33-34.



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       In preparation for sentencing, a probation officer prepared

the    customary        presentence    investigation        report    (“PSR”).       Among

other things, the PSR contained a two-point enhancement pursuant

to    U.S.S.G.      §    2D1.1(b)(1)        for   possession     of    a    firearm     in

connection with a drug-trafficking crime. J.A. 69. After taking

this       enhancement        and     the     other       relevant     factors         into

consideration,          the   PSR   recommended       a   sentence    of    120   to    150

months. J.A. 86.

       At    the    sentencing       hearing,      on     February    25,    2014,      the

district court asked defense counsel if he had reviewed the PSR

with Moseley. J.A. 39. Defense counsel confirmed that he had,

and that Moseley had only one objection. Moseley claimed that

the PSR specified incorrectly the length of time he had served

for    a    prior    conviction.       The     district      court    sustained        this

objection. This reduced Moseley’s criminal history category from

V     to    IV.    And     this     reduction      in     turn   lowered      Moseley’s

recommended sentencing range to 100 to 125 months. J.A. 39-47.

       Moseley did not object to or otherwise mention the firearm

enhancement during the sentencing hearing. The government and

the district court did not refer to it either. J.A. at 38-55. At

the conclusion of the hearing, the district court confirmed its

ruling as to Moseley’s criminal history objection, found that

the Guidelines calculations were appropriate, took account of

the Guidelines recommendation on an advisory basis, considered

                                              4
the § 3553(a) factors, and then sentenced Moseley to 100 months

of incarceration and four years of supervised release. J.A. 51-

52.

       Later,       on    April    8,    2014,       the     district         court    filed    a

Statement of Reasons in which it adopted the PSR except for the

erroneous criminal history specification. J.A. Supp. 1-4. Final

judgment      was      entered    that    same       day.    J.A.    57.      Moseley      timely

appealed. J.A. 63.

                                               II.

                                               A.

       Moseley’s sole challenge in his appeal is to the adequacy

of the factual support underlying the firearm enhancement in

U.S.S.G. § 2D1.1(b)(1). Our review of challenges to a district

court’s       application         of     the     Sentencing         Guidelines             follows

familiar lines: we review “questions of law de novo and findings

of fact for clear error.” United States v. King, 673 F.3d 274,

281    (4th     Cir.     2012).    Because      Moseley       failed     to     preserve       the

issue he now raises, however, our review is for plain error.

       Federal Rule of Criminal Procedure 52(b) permits appellate

courts     to    review      unpreserved            issues    only       if    those       issues

constitute (1) actual “error[s]” (2) that are “plain” and (3)

that    “affect[]        substantial      rights.”          Fed.    R.   Crim.        P.    52(b).

Moreover,       the      Supreme       Court    has     directed         lower    courts       to

exercise their discretion to grant relief only if “‘the error

                                                5
seriously affects the fairness, integrity or public reputation

of   judicial   proceedings.’”      United    States    v.    Ramirez-Castillo,

748 F.3d 205, 212 (4th Cir. 2014) (quoting United States v.

Olano, 507 U.S. 725, 732 (1993)).

                                         B.

      Moseley     notes    that     a    sentence      may    be     procedurally

unreasonable and thus subject to reversal if the district court

bases it on “clearly erroneous facts” or “fail[s] to adequately

explain” its grounds. United States v. Morace, 594 F.3d 340, 345

(4th Cir. 2010) (quoting Gall v. United States, 552 U.S. 38, 51

(2007)). Moseley contends that the district court fell short of

procedural reasonableness because it “did not make findings to

support   the    conclusion”      that   “possession     of    the    pistol   was

connected with drugs.” Appellant’s Br. 6.

      Moseley’s argument fails because the district court both

found the necessary facts and explained its sentence. A district

court   “may    accept    any   undisputed    portion    of    the   presentence

report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A).

“[W]hen a defendant fails to properly object to the relevant

findings in his PSR, the government meets its burden of proving

those facts by a preponderance of the evidence, and the district

court ‘is free to adopt the findings of the presentence report

without more specific inquiry or explanation.’” United States v.



                                         6
Revels, 455 F.3d 448, 451 n.2 (4th Cir. 2006) (quoting United

States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990)).

       In    this    case,   the    PSR   findings          with    regard          to    the   9mm

handgun discovered at Moseley’s residence were undisputed and

Moseley accordingly did not object to them. And after addressing

the PSR’s erroneous criminal history specification, the district

court was plainly entitled to adopt the handgun-related findings

along with the rest of PSR by confirming that the Guidelines

recommendation was correctly calculated. J.A. 51. The district

court’s Statement of Reasons later made this adoption explicit.

J.A.    Supp.   at    1-4.    Finally,       at    the      close    of    the          sentencing

hearing, the district court confirmed that it had considered all

of the relevant factors and that its sentence was sufficient,

but    not   greater    than       necessary,          to   achieve    the         purposes     of

federal sentencing law. J.A. 51-52.

                                             C.

        The facts amply support the trial court’s application of

the    enhancement.      The    Guidelines             provide      that       a    defendant’s

offense      level   should    “increase          by    2   levels”       if       “a    dangerous

weapon (including a firearm) was possessed” in connection with

the defendant’s drug-trafficking crime. U.S.S.G. § 2D1.1(b)(1).

The Guidelines commentary states that this enhancement “should

be    applied   if    the    weapon    was       present,      unless      it       is     clearly

improbable that the weapon was connected with the offense.”

                                             7
§ 2D1.1 cmt. n.11(A). This commentary is authoritative unless it

is inconsistent with the Constitution, a federal statute, or a

plain reading of the Guidelines. United States v. Harris, 128

F.3d 850, 852 (4th Cir. 1997) (citing Stinson v. United States,

508 U.S. 36, 45 (1993)). Taken together, then, the Guidelines

provision   and      the    associated     commentary        establish       a    two-part

process for determining whether the enhancement is warranted.

     First,        the     government     must    show       that   a    “weapon        was

present.”     We    have       interpreted      this   provision        to       mean   the

government must prove by a “preponderance of 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.” United States v. Manigan, 592 F.3d 621,

628-29 (4th Cir. 2010). Importantly, the government need not

demonstrate    that      the    drug    crime    and   the    gun   possession          were

“precisely concurrent acts.” Id. at 629. It must show only that

the gun is “readily available to protect either the participants

themselves during the commission of the illegal activity or the

drugs and cash involved in the drug business . . . .” Id.; see

also United States v. Nelson, 6 F.3d 1049, 1056 (4th Cir. 1993),

overruled on other grounds by Bailey v. United States, 516 U.S.

137 (1995) (approving of enhancement because guns and drugs were

stored at the same residence).



                                           8
       Second,     after    the    government         makes    its   showing,     the

defendant may explain why it is “clearly improbable” that the

weapon was connected to his drug crime. As an example of what

such   an    explanation     could    entail,        the   Guidelines     commentary

notes that the enhancement should not apply if the defendant

possessed an “unloaded hunting rifle” located “in the closet.”

§ 2D1.1 cmt. n.11(A). There is an obvious difference between a

handgun and a hunting rifle -- the former is a widely used “tool

of   the    drug   trade”   and    those       who   possess   handguns    are    more

likely to be proper candidates for the enhancement. Manigan, 592

F.3d at 629.

       Here, the government easily met its burden. The district

court found that a 9mm handgun and magazine were discovered in

the master bedroom of the residence where Moseley committed his

drug offense. Next to the handgun lay receipts bearing Moseley’s

name. The kitchen of the same residence contained drugs and drug

paraphernalia. Finally, the mother of Moseley’s child, and the

only person other than Moseley who held a key to the residence,

informed     the   police   that     any   drugs      or   weapons   found   at   the

residence belonged to Moseley. J.A. 68.

       Moreover, Moseley did not attempt to rebut the government’s

evidence by arguing that the firearm’s connection to the crime

was clearly improbable. The firearm in this case was a handgun,

a type of gun recognized as an “indicia of drug dealing.” United

                                           9
States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999). Finally, that

one month passed between the recorded sale and the search of the

residence   is   not   enough   to     disassociate   the   handgun   from

Moseley’s crime of conviction where, as here, the additional

drugs and drug paraphernalia found at the residence showed that

Moseley was engaged in an ongoing drug-trafficking scheme.

                                     III.

     The district court was not clearly erroneous in finding

that the firearm in this case was connected to Moseley’s drug-

trafficking crime. And that the district court’s conclusion was

not clearly erroneous means that there was no error here, much

less a plain error requiring us to undertake the rest of the

four-part inquiry from Olano. We therefore affirm the district

court’s judgment.

                                                                 AFFIRMED




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