United States v. Joshua Davis , 592 F. App'x 143 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4202
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:13-cr-00013-FL-1)
Submitted: October 30, 2014 Decided: November 7, 2014
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua Davis pled guilty to possession of a firearm by
a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924
(2012), and was sentenced to a term of sixty months’
imprisonment. Davis appeals his sentence, challenging the
district court’s application of a four-level increase in offense
level, pursuant to U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(6) (2013), based on the court’s finding that the
firearm had the potential of facilitating another felony
offense. We affirm.
Davis, a convicted felon, was arrested following a
police chase that ensued when a police officer attempted to stop
the vehicle in which Davis was a passenger. The officer pursued
the vehicle in response to a tip from a confidential informant
that Davis was traveling with a handgun and ammunition.
Officers found a small quantity of counterfeit cocaine on Davis’
person and a loaded handgun and ninety-eight grams of
counterfeit crack cocaine wrapped in plastic bags in the back
seat of the car. Over Davis’ objection, the district court
applied the four-level enhancement under USSG § 2K2.1(b)(6)(B),
because the court found that the firearm had the potential of
facilitating another felony offense, namely, distribution of
counterfeit drugs.
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When evaluating Guidelines calculations, we review the
district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Cox, 744 F.3d 305, 308
(4th Cir. 2014). We will find clear error only when, “on the
entire evidence[, we are] left with the definite and firm
conviction that a mistake has been committed.” Id. (internal
quotation marks omitted). The burden is on the Government to
establish by a preponderance of the evidence that the court
should apply a sentencing enhancement. United States v.
Blauvelt, 638 F.3d 281, 293 (4th Cir. 2011).
The Guidelines provide for a four-level enhancement
under USSG § 2K2.1(b)(6)(B) if a defendant “used or possessed
any firearm or ammunition in connection with another felony
offense.” Section 2K2.1(b)(6) is intended “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). Davis argues that the
district court clearly erred in applying the § 2K2.1(b)(6)(B)
enhancement, because the Government failed to meet its burden of
proving that his possession of the firearm was “in connection”
with another felony offense.
The commentary to § 2K2.1(b)(6)(B) provides that the
enhancement applies when a firearm possessed by a defendant
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“facilitated, or had the potential of facilitating, another
felony offense.” USSG § 2K2.1 cmt. n.14(A). Here, the district
court found that the firearm had the potential to facilitate the
felony offense of distribution of counterfeit drugs. Many
factors can “lead a fact finder to conclude that a connection
existed between a defendant’s possession of a firearm and his
drug trafficking activity.” United States v. Lomax, 293 F.3d
701, 705 (4th Cir. 2002). These include the “type of drug
activity . . . being conducted, accessibility of the firearm,
the type of weapon, whether the weapon is stolen, the status of
the possession (legitimate or illegal), whether the gun is
loaded, proximity to drugs or drug profits, and the time and
circumstances under which the gun is found.” Id. (internal
quotation marks omitted).
In this case, the loaded handgun and the counterfeit
drugs were found in the back seat of the vehicle, within reach
of Davis, the front seat passenger, who also had counterfeit
crack in his pocket. It is well established in this circuit
that handguns are a tool of the drug trade. United States v.
Madigan, 592 F.3d 621, 629 (4th Cir. 2010); United States v.
Ward, 171 F.3d 188, 194 (4th Cir. 1999). The quantity and
packaging of the counterfeit drugs were also consistent with
drug distribution. United States v. Lamarr, 75 F.3d 964, 973
(4th Cir. 1996). Moreover, as the district court noted, selling
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counterfeit drugs is an inherently dangerous activity and it was
reasonable to infer that the handgun was present to protect
Davis as he engaged in trafficking the counterfeit drugs. See
United States v. McKenzie-Gude, 671 F.3d 452, 463-64 (4th Cir.
2011) (holding that firearm is possessed in connection with
another offense for purposes of § 2K2.1(b)(6) when it “was
present for protection or to embolden the actor”).
We conclude that, under the totality of the
circumstances, the district court did not clearly err in finding
bya preponderance of the evidence that Davis’ possession of the
firearm had the potential to facilitate another felony offense.
Accordingly, we affirm Davis’ sentence. 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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