United States v. Warren Moseley , 626 F. App'x 399 ( 2015 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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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
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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
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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.
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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.”
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§ 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).
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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
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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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