United States v. Monte Thorne ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4365
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MONTE MARQUIS THORNE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. Louise W. Flanagan, District Judge. (4:18-cr-00029-FL-1)
Submitted: April 20, 2021 Decided: April 29. 2021
Before WYNN, FLOYD, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul K. Sun, Jr., Kelly Margolis Dagger, ELLIS & WINTERS LLP, Raleigh, North
Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Monte Marquis Thorne appeals the 46-month sentence imposed after he pled guilty
to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924. On
appeal, he argues that his sentence is procedurally unreasonable because the district court
clearly erred in finding that he used or possessed a firearm in connection with another
felony offense and applying a four-level enhancement pursuant to U.S. Sentencing
Guidelines Manual § 2K2.1(b)(6)(B) (2018). We affirm.
We generally review a challenge to a criminal sentence for abuse of discretion.
Gall v. United States, 552 U.S. 38, 51 (2007). In evaluating a sentencing court’s
calculation of the advisory Guidelines range, we review the district court’s factual findings
for clear error and legal conclusions de novo. United States v. White, 850 F.3d 667, 674
(4th Cir. 2017). “‘When sentencing courts engage in fact finding, preponderance of the
evidence is the appropriate standard of proof.’” United States v. Slager, 912 F.3d 224, 233
(4th Cir.) (citation omitted), cert. denied, 139 S. Ct. 2679 (2019). We “‘will not reverse a
lower court’s findings of fact simply because we would have decided the case differently.’”
Id. (citations omitted). “Instead, clear error exists only when ‘the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been
committed.’” Id. (citations omitted).
“[A] sentencing court may consider uncharged and acquitted conduct in determining
a sentence, as long as that conduct is proven by a preponderance of the evidence.” United
States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009) (citations omitted). A four-level
sentencing enhancement is applied to the offense level if the defendant “used or possessed
2
any firearm or ammunition in connection with another felony offense.” USSG
§ 2K2.1(b)(6)(B). The enhancement applies “if the firearm or ammunition facilitated, or
had the potential of facilitating, another felony offense.” USSG § 2K2.1 cmt. n.14(A); see
United States v. Jenkins, 566 F.3d 160, 162 (4th Cir. 2009) (citations omitted). “Another
felony offense” is defined as “any federal, state, or local offense, other than the explosive
or firearms possession or trafficking offense, punishable by imprisonment for a term
exceeding one year, regardless of whether a criminal charge was brought, or a conviction
obtained.” USSG § 2K2.1 cmt. n.14(C).
We have reviewed the record and conclude that the district court did not clearly err
in finding by a preponderance of the evidence that Thorne used or possessed a firearm in
connection with another felony offense pursuant to USSG § 2K2.1(b)(6)(B). On appeal,
Thorne contends that the Government did not prove his involvement in another felony
offense by a preponderance of the evidence. However, we find no clear error in the district
court’s finding that it was more likely than not, on the entire evidence, that Thorne was
engaged in drug trafficking and that the firearms in his home “facilitated, or had the
potential of facilitating” his drug trafficking offense. See USSG § 2K2.1 cmt. n.14(A).
Accordingly, we affirm the district court’s judgment. 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 the decisional process.
AFFIRMED
3