United States v. Terry Locklear, Jr. , 489 F. App'x 705 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4389
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TERRY LOCKLEAR, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00252-TDS-3)
Submitted: November 16, 2012 Decided: November 21, 2012
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Ripley Rand,
United States Attorney, Lisa B. Boggs, Assistant United States
Attorney, Kyle Pousson, Special Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Locklear, Jr., pled guilty pursuant to a plea
agreement to one count of possession of a stolen firearm, in
violation of 18 U.S.C. § 922(j) (2006). The district court
sentenced him to 26 months of imprisonment. Locklear now
appeals. In accordance with Anders v. California, 386 U.S. 738(1967), Locklear’s counsel filed a brief certifying that there
are no meritorious issues for appeal but questioning whether the
district court imposed a procedurally unreasonable sentence.
Locklear received notice of his right to file a supplemental pro
se brief, but has not done so. Finding no error, we affirm.
We review Locklear’s sentence for reasonableness,
applying a “deferential abuse of discretion standard.” Gall v.
United States, 552 U.S. 38, 52 (2007). We begin by reviewing
the sentence for significant procedural error, including
improper calculation of the Guidelines range. Id. at 51.
Locklear contends that the Guidelines range applied to him was
improperly calculated because it contained a two-level
enhancement for possession of stolen firearms under U.S.
Sentencing Guidelines Manual (“USSG”) § 2K2.1(b)(4)(A) (2011).
Locklear asserts that inclusion of this enhancement constitutes
impermissible double counting because the underlying offense,
possession of stolen firearms, took the stolen nature of the
firearms into account.
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Locklear’s claim of double counting involves a legal
interpretation of the Guidelines that we review de novo. United
States v. Schaal, 340 F.3d 196, 198 (4th Cir. 2003). Double
counting occurs when a Guidelines provision is applied based on
considerations that have already been accounted for by another
provision or by statute. United States v. Reevey, 364 F.3d 151,
158 (4th Cir. 2004). “[T]here is a presumption that double
counting is proper where not expressly prohibited by the
[G]uidelines.” United States v. Hampton, 628 F.3d 654, 664 (4th
Cir. 2010).
Locklear has failed to demonstrate that the district
court erred in including the stolen-firearms enhancement.
Locklear received the § 2K2.1(b)(4)(A) enhancement based on his
violation of 18 U.S.C. § 922(j). The Guidelines explicitly
state that this enhancement is properly applied to offenses
under § 922(j) unless the base offense level was determined
under § 2K2.1(a)(7). USSG § 2K2.1 cmt. n.8 (2011). Locklear’s
base offense level was determined under § 2K2.1(a)(6) because he
was considered a “prohibited person” due to his drug addiction.
Unlike base offense levels calculated under § 2K2.1(a)(7), those
determined under § 2K2.1(a)(6) do not take into account the fact
that the firearm was stolen, and the application of the
§ 2K2.1(b)(4)(A) enhancement is specifically sanctioned.
Therefore, we conclude that this claim is without merit.
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
Therefore, we affirm Locklear’s conviction and sentence. This
court requires counsel to inform Locklear, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Locklear requests that a petition be filed
but counsel believes such a petition would be frivolous, counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Locklear. 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
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