UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4599

NOLAN MEARS, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4601

RUTH VANESSA WALKER,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-95-455-AMD)

Argued: December 5, 1997

Decided: March 13, 1998

Before Before NIEMEYER, Circuit Judge, BUTZNER,
Senior Circuit Judge, and MICHAEL,
Senior United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Flynn Marcus Owens, JACK B. RUBIN, P.A., Baltimore,
Maryland, for Appellants. John Francis Purcell, Jr., Assistant United
States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:
Jack B. Rubin, JACK B. RUBIN, P.A., Baltimore, Maryland, for
Appellant Mears; Leslie A. Stein, Baltimore, Maryland, for Appellant
Walker. Lynne A. Battaglia, United States Attorney, Baltimore,
Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Nolan Mears and Ruth Walker appeal the district court's judgments
entered on the verdicts of a jury. Their principal assignment of error
pertains to a warrantless, protective sweep of Walker's house that dis-
closed two handguns. Mears protests the consequent two-point
enhancement of his sentence pursuant to U.S.S.G.§ 2D1.1(b)(1). We
affirm.

Mears, Walker, and Eduardo Rivera were convicted of conspiracy
to distribute and possess with intent to distribute heroin (count 1).
Rivera pled guilty and testified for the government. Mears was con-
victed of distributing heroin (count 2). Mears and Walker were con-
victed of distributing heroin (counts 3 and 4). Mears was also
convicted of distributing heroin (count 5). The district court dismissed
the charges in counts 2 and 5 against Walker. Neither Mears nor
Walker contests the sufficiency of the evidence with respect to counts
1, 2, 4, and 5. Appellants' Br. at 16. Walker contends that the evi-
dence was insufficient to convict her of the distribution of heroin
charged in count 3. Walker pled guilty to possession of a firearm by
a convicted felon (count 6). The district court enhanced Mears' and

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Walker's sentences two points for possession of a firearm during a
drug transaction. Mears, but not Walker, assigns error to this enhance-
ment.

I

On October 30, 1995, a Maryland state trooper found 750 grams
of heroin in a car driven by Eduardo Rivera. After the discovery,
Rivera agreed to cooperate with DEA agents in a controlled delivery
of heroin to Mears and Walker. At 6:30 p.m., Rivera called Walker
at her Lanvale residence to corroborate the story he told officials.
Approximately ten minutes after the phone call ended the agents left
with Rivera to observe his meeting with Walker and Mears. Rivera
arrived at the Lanvale residence at 7:30 p.m. and remained inside for
about an hour. At that time Rivera and Mears exited the house and
entered separate cars. Both vehicles were stopped one block later and
Mears was arrested. As the police were preparing to do a protective
sweep of the house Walker and another woman were spotted leaving
the residence. The women were stopped and taken back inside. DEA
agents then conducted a protective sweep of the residence to ensure
that additional conspirators were not in the house. During the sweep,
which took less than two minutes, two guns were found. One was
found under the bed of a second floor bedroom, and the other was
found between the mattress and box spring of the same bed. Walker
later admitted that she owned the guns.

The court held that the gun found under the bed was admissible
pursuant to the protective sweep doctrine and the gun found between
the mattress and the box spring was admissible under the inevitable
discovery, exception even though it was inadmissable under the pro-
tective sweep doctrine.

II

At this stage of the proceedings it is unnecessary to consider the
legality of the sweep of Walker's house that turned up two guns.
Walker's plea of guilty to possession of a gun by a felon precludes
her from questioning the sweep. In Tollet v. Henderson, 411 U.S. 258
(1973), the Court stated a rule that is applicable to Walker's case:

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           We thus reaffirm the principle recognized in the Brady
          trilogy: a guilty plea represents a break in the chain of
          events which has preceded it in the criminal process. When
          a criminal defendant has solemnly admitted in open court
          that he is in fact guilty of the offense with which he is
          charged, he may not thereafter raise independent claims
          relating to the deprivation of constitutional rights that
          occurred prior to the entry of the guilty plea.

411 U.S. at 267.

III

Mears acknowledges that he lacks standing to challenge the sweep
of Walker's house in which he had no possessory or property interest.
Consequently, he also lacks standing to complain about the admission
of Walker's guns into evidence. See Rakas v. Illinois, 439 U.S. 128,
148 (1978). But his lack of standing is not the end of our inquiry. The
government must prove by a preponderance of the evidence that the
district court was authorized to increase his sentence by two levels.
Mears does not contest the sufficiency of the evidence to establish
that he was guilty of conspiracy, but he does protest the two-level
increase of his sentence.

When a defendant is convicted of laws relating to drugs, the district
court is directed to enhance the sentence as follows: "If a dangerous
weapon (including a firearm) was possessed, increase by 2 levels."
U.S.S.G. § 2D1.1(b)(1). The commentary provides:

          The enhancement for weapon possession reflects the
          increased danger of violence when drug traffickers possess
          weapons. The adjustment should be applied if the weapon
          was present, unless it is clearly improbable that the weapon
          was connected with the offense.

U.S.S.G. § 2D1.1, comment. n.3.

We reject Mears' argument that there is no proof that he possessed
a gun when Rivera arrived at Walker's house with heroin. Mears was

                    4
in the house awaiting Rivera's arrival. The fact that the conspirators
intended to complete the delivery of the heroin and make payment in
some other place is immaterial. Rivera's arrival at Walker's house
facilitated, and was a part of, the drug transaction. The requirements
of the guidelines are met when the gun is found in a place where the
conspiracy is furthered. United States v. Apple , 962 F.2d 335, 338
(4th Cir. 1992). The district court found that part of the reason Walker
possessed the guns was to protect the drug operation and those
engaged in it. The district court also found that Walker's house was
one of the headquarters of the defendants' drug distribution activity.

Possession of a gun by a codefendant (Walker) can be attributed to
the defendant (Mears) when possession is in furtherance of a conspir-
acy and is reasonably foreseeable. United States v. Nelson, 6 F.3d
1049, 1056 (4th Cir. 1993). There can be no doubt that Walker's pos-
session of guns was foreseeable to Mears. In fact, Rivera saw Mears
carrying a gun on some other occasions. It should come as no surprise
to him that Walker would have a gun in her house. We are satisfied
that the district court did not err by enhancing Mears' sentence by two
levels.

IV

Walker claims that the district court erred when it denied her
motion for judgment of acquittal on count 3, which charged her with
distributing heroin on September 27, 1995. When a motion for a judg-
ment of acquittal is based on the insufficiency of the evidence, the
standard of review is whether the evidence viewed in a light most
favorable to the government is sufficient for any rational trier of fact
to find the essential elements of the crime beyond a reasonable doubt.
See Glasser v. United States, 315 U.S. 60, 80 (1941); Fed. R. Crim
P. 29.

During the transaction, a seven-minute conversation was recorded,
and that recording was played for the jury. The recording was made
by Richard Satterfield, a cooperating witness who wore a body wire
to the drug buy. Satterfield was unable to testify at trial because he
was murdered one week before trial. An FBI agent identified Walker
as one of the participants in the conversation by comparing the voice
on the recording to a sample of Walker's voice. Additionally, an

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Infiniti Q45 was involved in the drug transaction. Walker had previ-
ously been seen driving this car.

The district court ruled that a rational fact finder could find Walker
guilty of count 3 beyond a reasonable doubt, though, on the govern-
ment's concession, it granted Walker's motion for acquittal on count
2. As the government emphasized, the distinguishing feature between
counts 2 and 3 was the recording and voice identification with respect
to count 3. We find no error in the district court's denial of Walker's
count 3 motion.

AFFIRMED

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