United States v. Hooker , 101 F. App'x 906 ( 2004 )

Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN RAISHAUN HOOKER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-306)
Submitted: June 24, 2004 Decided: June 30, 2004
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela H.
Miller, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kevin Raishaun Hooker appeals from his conviction
following a guilty plea to being a felon in possession of a
firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000). Hooker was
sentenced to ninety-two months’ imprisonment, to be followed by a
three-year term of supervised release. The sole issue on appeal is
whether the district court clearly erred in applying the four-level
enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5)
(2003).
Section 2K2.1(b)(5) provides for a defendant’s offense
level to be enhanced by four levels if he used or possessed a
firearm “in connection with another felony offense.” The
Government bears the burden of proving the necessary facts by a
preponderance of the evidence and this court “review[s] the
district court’s findings of fact for clear error, giving due
deference to the district court’s application of the Guidelines to
the facts.” United States v. Garnett, 243 F.3d 824, 828 (4th Cir.
2001).
In this Circuit, “in connection with” is treated as
analogous to “in relation to,” as used in 18 U.S.C. § 924(c)
(2000). United States v. Blount, 337 F.3d 404, 411 (4th Cir.
2003). In other words, the firearm must facilitate or have the
tendency to facilitate another offense. Id. at 411 (citing
Garnett, 243 F.3d at 829). “‘[T]he firearm must have some purpose
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or effect with respect to the . . . crime; its presence or
involvement cannot be the result of accident or coincidence.’” Id.(quoting Smith v. United States, 508 U.S. 223, 238 (1993))
(modification in original). The government meets its burden if it
shows that the gun was “present for protection or to embolden the
actor.” United States v. Lipford, 203 F.3d 259, 266 (4th Cir.
2000) (citation omitted).
The district court concluded that based on Hooker’s
possession of large amounts of cash, the presence of nearly a pound
of marijuana in his residence and his criminal history involving
marijuana, Hooker was distributing marijuana, a felony offense.
See 21 U.S.C. § 841(a), 841(b)(1)(D) (2000). The court found that
Hooker’s possession of a loaded gun and its proximity to the large
amount of cash indicated that Hooker’s use of the gun was in
connection with the distribution of the marijuana. On these facts,
we cannot say that the district court clearly erred in concluding
that Hooker possessed the gun to facilitate the drug offense.
Therefore, the court's decision to apply the enhancement was not
clearly erroneous.
We affirm Hooker’s conviction and sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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