United States v. Zachre Abercrombie ( 2022 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4440
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ZACHRE CHASEN ABERCROMBIE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:20-cr-00509-WO-1)
Submitted: July 1, 2022 Decided: August 25, 2022
Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: W. Rob Heroy, GOODMAN, CARR, LAUGHRUN, LEVINE & GREENE
PLLC, Charlotte, North Carolina, for Appellant. Sandra J. Hairston, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Zachre Chasen Abercrombie pleaded guilty, pursuant to a written plea agreement,
to conspiracy to distribute 500 grams or more of cocaine hydrochloride, in violation of
21 U.S.C. §§ 841(b)(1)(B), 846. The district court sentenced Abercrombie to 48 months’
imprisonment. On appeal, Abercrombie argues that the district court erred in calculating
his advisory Sentencing Guidelines range by applying a firearm enhancement and by
failing to grant him a safety valve reduction. We affirm.
We review “all sentences—whether inside, just outside, or significantly outside the
Guidelines range—under a deferential abuse-of-discretion standard.” United States v.
Torres-Reyes, 952 F.3d 147, 151 (4th Cir. 2020) (internal quotation marks omitted). First,
we must determine whether the sentence is procedurally reasonable. United States v.
Nance, 957 F.3d 204, 212 (4th Cir. 2020). “A sentence based on an improperly calculated
Guidelines range is procedurally unreasonable.” United States v. Shephard, 892 F.3d 666,
670 (4th Cir. 2018). “In assessing whether a district court properly calculated the
Guidelines range, including its application of any sentencing enhancements, [we] review[]
the district court’s legal conclusions de novo and its factual findings for clear error.”
United States v. Pena, 952 F.3d 503, 512 (4th Cir. 2020) (internal quotation marks
omitted). “Under the clear error standard, we will only reverse if left with the definite and
firm conviction that a mistake has been committed.” United States v. Savage, 885 F.3d
212, 225 (4th Cir. 2018) (internal quotation marks omitted).
The advisory Sentencing Guidelines authorize a two-level increase in a defendant’s
offense level “[i]f a dangerous weapon (including a firearm) was possessed” in connection
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with a drug trafficking offense. U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2018).
“The enhancement should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” Id. cmt. n.11(A). “The
government bears the initial burden of proving, by a preponderance of the evidence, that
the weapon was possessed in connection with the relevant illegal drug activity.” United
States v. Mondragon, 860 F.3d 227, 231 (4th Cir. 2017). “If the government carries its
burden, the sentencing court presumes that the weapon was possessed in connection with
the relevant drug activity and applies the enhancement, unless the defendant rebuts the
presumption by showing that such a connection was clearly improbable.” Id. (internal
quotation marks omitted).
Relatedly, a defendant convicted of certain drug offenses can qualify for a two-level
“safety-valve” reduction to his offense level or be sentenced below the statutory mandatory
minimum sentence if he meets certain criteria. USSG §§ 2D1.1(b)(18), 5C1.2(a);
18 U.S.C. § 3553(f). One of the required criteria is not possessing a firearm or other
dangerous weapon in connection with the offense. USSG § 5C1.2(a)(2). Although “a
defendant may be unable to show that any connection between a firearm and an offense is
clearly improbable” in order to rebut the application of the firearm enhancement, “the same
defendant might be able to prove by a preponderance of the evidence that the firearm was
not connected with the offense to satisfy [USSG] § 5C1.2(a)(2).” United States v. Bolton,
858 F.3d 905, 914 (4th Cir. 2017) (internal quotation marks omitted). Thus, the application
of the firearm enhancement under USSG § 2D1.1(b)(1) does not automatically foreclose a
safety valve reduction. Id. However, if a defendant cannot meet the lower burden to
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establish that he was entitled to the safety valve reduction, he cannot show that the firearm
enhancement was improperly applied. See United States v. Fincher, 929 F.3d 501, 505
(7th Cir. 2019).
Our review of the record leads us to conclude that the district court did not clearly
err in finding that Abercrombie had not established, under either relevant standard, that the
firearm found in his vehicle was not connected to the drug trafficking conspiracy. We
therefore affirm the criminal judgment. * 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
*
We conclude that Abercrombie’s remaining sealed argument is foreclosed by this
Court’s precedent.
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