United States of America v.  Gregory Dash

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4756 
GREGORY DASH,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CR-00-14-HO)
Submitted: May 31, 2001
Decided: June 29, 2001
Before WILKINS, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Mary Jude Darrow, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.

-- 1 of 3 --

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Gregory Dash challenges his 210-month sentence imposed after his
guilty plea to charges of distribution of cocaine base and possession
with intent to distribute cocaine base, cocaine hydrochloride, and
marijuana. On appeal, Dash alleges that the district court clearly erred
in applying a sentencing enhancement for possession of a firearm
under U.S. Sentencing Guidelines § 2D1.1(b)(1) (1998). He further
argues that it was error to apply the sentence enhancement without
charging possession of a firearm in the indictment and submitting it
to a jury under Apprendi v. New Jersey, 530 U.S. 466 (2000). Finding
no error, we affirm.
Section 2D1.1(b)(1) of the Sentencing Guidelines calls for the
imposition of a two-level enhancement "[i]f a dangerous weapon
(including a firearm) was possessed." The enhancement "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, com-
ment. (n.3). In order to avoid application of the adjustment, the defen-
dant must show that the connection between the drug offense and the
dangerous weapon possession was clearly improbable. See United
States v. Harris, 128 F.3d 850, 853 (4th Cir. 1997). "[T]he proximity
of guns to illicit narcotics can support a district court’s enhancement
of a defendant’s sentence under Section 2D1.1(b)(1)." Id. at 852. The
district court’s factual findings pursuant to U.S.S.G. § 2D1.1(b)(1) are
reviewed for clear error. See United States v. Apple, 915 F.2d 899,
914 (4th Cir. 1990). Our review of the record leads us to conclude
that the district court did not clearly err in applying this enhancement.
Dash’s argument that it was error to apply the weapons enhance-
ment without charging possession of a firearm in the indictment and
presenting it to the jury is without merit. This court has rejected the
very arguments that Dash advances. See United States v. Kinter, 235
2 UNITED STATES v. DASH

-- 2 of 3 --

F.3d 192, 201 (4th Cir. 2001) (sentencing enhancements that do not
increase the statutory maximum do not violate the principles of
Apprendi), cert. denied, 121 S. Ct. 1393 (2001). While we acknowl-
edge Dash’s request that the court reconsider its prior opinions, a
panel may not overrule the decision of a prior panel in this Circuit.
See Brubaker v. City of Richmond, 943 F.2d 1363, 1381-82 (4th Cir.
1991).
We therefore affirm the judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
3 UNITED STATES v. DASH

-- 3 of 3 --