United States v. Darnell Queen , 464 F. App'x 99 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4175
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARNELL QUEEN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00086-WO-1)
Submitted: January 26, 2012 Decided: February 7, 2012
Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darnell Queen appeals the 120-month sentence imposed
following his guilty plea to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).
Queen’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), asserting that there were no meritorious
grounds for appeal but questioning whether the district court
erred in applying a four-level increase to Queen’s offense level
pursuant to U.S. Sentencing Guidelines Manual (USSG)
§ 2K2.1(b)(6) (2010). Counsel contends that the marijuana
recovered at the time of Queen’s arrest was for personal use,
not for distribution. Queen filed a pro se supplemental brief
and a notice of supplemental authorities. *
Pursuant to our review under Anders, we directed the
parties to file supplemental briefs addressing the propriety of
the § 2K2.1(b)(6) enhancement in light of our decision in United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). In
the supplemental briefs, Queen’s counsel asserts that Simmons
*
In his pro se filings, Queen repeats the claim raised by
counsel and asserts that the district court erred in denying his
motion to withdraw his guilty plea and dismiss the indictment
based on ineffective assistance of counsel and that he is
actually innocent of being a felon in possession because his
prior drug conviction was not punishable by more than one year
of imprisonment. We have carefully considered these claims and
find them to be without merit.
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does not impact the district court’s application of the USSG
§ 2K2.1(b)(6) four-level enhancement, and the Government agrees
with counsel’s assessment. Queen filed a supplemental pro se
brief disagreeing with counsel’s assessment and has moved to
remand his case to the district court. Finding no error, we
affirm.
Section 2K2.1(b)(6) provides for a four-level
enhancement “[i]f the defendant . . . used or possessed any
firearm or ammunition in connection with another felony
offense.” USSG § 2K2.1(b)(6)(B) & cmt. n.14(c). “[T]he purpose
of Section 2K2.1(b)(6) [is] to punish more severely a defendant
who commits a separate felony offense that is rendered more
dangerous by the presence of a firearm.” United States v.
Jenkins, 566 F.3d 160, 164 (4th Cir. 2009) (internal quotation
marks omitted). “In considering the district court’s
application of the Sentencing Guidelines, we review factual
findings for clear error and legal conclusions de novo.” United
States v. Mehta, 594 F.3d 277, 281 (4th Cir.), cert denied, 131
S. Ct. 279 (2010).
Here, the district court apparently relied on a prior
North Carolina conviction for possession with intent to sell and
deliver marijuana to support the four-level enhancement. In
light of Simmons, that conviction is not punishable by more than
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one year of imprisonment. The Government notes, however, that
Queen also was indicted for possession with intent to distribute
30.8 grams of marijuana, which would support the § 2K2.1(b)(6)
enhancement. See 21 U.S.C.A. § 841(b)(1)(D) (West 1999 & Supp.
2011) (providing for maximum sentence “of not more than 5
years”). Even assuming, as Queen contends, that he possessed
the marijuana for personal use, his conduct violated 21 U.S.C.
§ 844(a) (2006), and the maximum sentence he would have faced,
taking into account his prior convictions, is up to three years’
imprisonment. Thus, on the record before us, we conclude that
the district court did not err in applying the sentencing
enhancement.
In accordance with Anders, we have reviewed the record
in this case and have found no other potentially meritorious
issues for appeal. We therefore deny Queen’s motion to remand
and affirm the district court’s judgment. This court requires
that counsel inform Queen, in writing, of his right to petition
the Supreme Court of the United States for further review. If
Queen requests that a petition be filed, but counsel believes
that 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 Queen. We
dispense with oral argument because the facts and legal
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conclusions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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