United States v. Avery Muldrow , 573 F. App'x 264 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4563
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AVERY MULDROW, a/k/a Ace Boog,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:13-cr-00006-BO-1)
Submitted: April 30, 2014 Decided: May 29, 2014
Before MOTZ, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Renorda E. Pryor, HERRING LAW CENTER, Raleigh, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Joshua L. Rogers, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Avery Muldrow pled guilty to four counts of
distributing a quantity of heroin, in violation of 21 U.S.C.
§ 841(a)(1) (2012). The district court sentenced him to 120
months of imprisonment, seventy-nine months above the high end
of his Guidelines range, and a life term of supervised release.
On appeal, Muldrow raises several challenges to that sentence
and, having carefully reviewed the record, we affirm.
Generally, we review a sentence for reasonableness,
using “an abuse-of-discretion standard.” Gall v. United States,
552 U.S. 38, 51 (2007). We must first review for “significant
procedural error[s],” including, among other things, improperly
calculating the Guidelines range. Id. Only if we find a
sentence procedurally reasonable may we consider its substantive
reasonableness. Id.
Muldrow first contends that the district court erred
in enhancing his offense level for possessing a dangerous weapon
in connection with his narcotics distribution activities, U.S.
Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1) (2012)
(“weapons enhancement”). Specifically, Muldrow argues that the
evidence failed to tie him or his drug dealing to a specific
residence or the several firearms discovered therein. We review
the district court’s contrary factual findings for clear error
and will “find [such] only if, on the entire evidence, we are
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left with the definite and firm conviction that a mistake has
been committed.” United States v. Manigan, 592 F.3d 621, 631
(4th Cir. 2010) (internal quotation marks and alteration
omitted). A district court must find facts relevant to
sentencing by a preponderance of the evidence. See United
States v. Alvarado Perez, 609 F.3d 609, 614 (4th Cir. 2010).
In the case of narcotics offenses like Muldrow’s, the
Guidelines direct a two-level enhancement “[i]f a dangerous
weapon (including a firearm) was possessed.” USSG
§ 2D1.1(b)(1). “The enhancement is proper when 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, even in the absence of proof of precisely concurrent
acts . . . .” United States v. Slade, 631 F.3d 185, 189 (4th
Cir. 2011) (internal quotation marks and citation omitted).
Once the Government establishes a defendant’s possession of a
firearm, the weapons enhancement is proper unless a connection
between that possession and the defendant’s narcotics offense is
“clearly improbable.” United States v. Harris, 128 F.3d 850,
852-53 (4th Cir. 1997); see USSG § 2D1.1 cmt. n.11(A).
Here, Muldrow produced no information refuting the
information in the presentence report that he stored firearms
and a substantial quantity of narcotics in his residence. On
that basis alone, the district court was entitled to apply the
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weapons enhancement. See 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); see also United States v.
Terry, 916 F.2d 157, 162 (4th Cir. 1990). Moreover, the
testimony at Muldrow’s sentencing confirmed that he
constructively possessed a firearm in connection with his heroin
distribution. See United States v. Lawing, 703 F.3d 229, 240
(4th Cir. 2012) (explaining constructive possession), cert.
denied, 133 S. Ct. 1851 (2013). Officers discovered three
firearms under the bed of Muldrow’s housemate, a quadriplegic,
who indicated that the weapons were Muldrow’s. Although that
housemate was also implicated in narcotics distribution, his
accusation regarding the firearms’ origin was confirmed by the
fact that the bullets loaded in one of the guns matched
ammunition found in Muldrow’s suspected bedroom. See United
States v. Pratt, 553 F.3d 1165, 1170-71 (8th Cir. 2009)
(concluding that, at sentencing, district court did not err in
relying on hearsay statements of defendant’s co-conspirators as
related through law enforcement officer where such statements
were generally consistent with other evidence). Considering
that Muldrow also produced no information indicating that the
firearms were exclusively controlled by anyone else, there was
no clear error in the district court’s determination that
Muldrow possessed a dangerous weapon.
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Nor was it clearly improbable that such possession was
connected to Muldrow’s narcotics distribution. Stored in an
accessible location within a residence where Muldrow stashed his
narcotics, the weapons were of a variety commonly used to defend
illicit drugs and the proceeds from their sale. See Manigan,
592 F.3d at 629. That one of the guns was loaded and Muldrow
kept additional ammunition close at hand was also suggestive of
a connection between Muldrow’s heroin trafficking and the
firearms. See United States v. Betz, 82 F.3d 205, 210-11 (8th
Cir. 1996). Accordingly, the district court’s application of
the weapons enhancement was not clearly erroneous.
Next, Muldrow contends that the district court erred
by failing to provide prior notice of its intent to consider an
upward departure, as required by Fed. R. Crim. P. 32(h).
Because Muldrow raised no relevant objection in the district
court, we review for plain error. See Fed. R. Crim. P. 52(b);
Henderson v. United States, 133 S. Ct. 1121, 1126–27 (2013)
(discussing standard); United States v. Olano, 507 U.S. 725, 732
(1993). Assuming without deciding that there was error and the
error was plain, we conclude that Muldrow fails to show an
effect on his substantial rights. See United States v. McClung,
483 F.3d 273, 276–77 (4th Cir. 2007).
A sentencing error affects a defendant’s substantial
rights where, “absent the error, a different sentence might have
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been imposed.” United States v. Hernandez, 603 F.3d 267, 273
(4th Cir. 2010). Here, Muldrow summarily suggests that, had he
received the proper notice, he would have argued against or
produced evidence refuting several of the grounds on which the
district court found a Guidelines sentence inadequate. However,
Muldrow does not begin to identify what the substance of that
evidence or argument would have been.
Moreover, the district court alerted Muldrow to why it
intended to deviate from the Guidelines range and gave him the
opportunity to argue in opposition. Accordingly, Muldrow “has
provided nothing new or additional he might have said that would
have persuaded the court to impose a shorter sentence” and thus
fails to show that the purported lack of Rule 32(h) notice
“affect[ed] the outcome of his sentencing proceedings.”
McClung, 483 F.3d at 277.
Finally, Muldrow summarily suggests that his sentence
is substantively unreasonable because the district court’s
stated reasons for its imposition were inadequate. We review
the substantive reasonableness of Muldrow’s sentence with regard
to “whether the District Judge abused his discretion in
determining that the § 3553(a) factors supported [the] sentence
. . . and justified [the] . . . deviation from the Guidelines
range.” Gall, 552 U.S. at 56. In doing so, we “take into
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account the totality of the circumstances, including the extent
of any [deviation] from the Guidelines range.” Id. at 51.
Here, in support of Muldrow’s sentence, the district
court focused on the nature and circumstances of Muldrow’s
offenses and his personal history and characteristics. 18
U.S.C. § 3553(a)(1) (2012). Muldrow takes no issue with the
propriety or accuracy of such considerations, their reflection
of his individual circumstances, or their relevance to the goals
of § 3553(a). Thus, we conclude that Muldrow fails to show that
his sentence is substantively unreasonable. See United States
v. Rivera-Santana, 668 F.3d 95, 106 (4th Cir. 2012).
Accordingly, we affirm the district court’s judgment.
We deny Muldrow’s pro se motions to file supplemental briefs.
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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