United States v. Mayers , 397 F. App'x 871 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5137
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
VINCENT ANTHONY MAYERS,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cr-00038-FDW-1)
Submitted: September 28, 2010 Decided: October 14, 2010
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Cecilia
Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina, Amy
E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent Anthony Mayers pled guilty without a plea
agreement to one count of possession of a firearm by a convicted
felon and one count of possession of ammunition by a convicted
felon, both in violation of 18 U.S.C. § 922(g)(1) (2006). The
district court sentenced Mayers to two concurrent terms of 68
months’ imprisonment. On appeal, Mayers challenges his
sentence, arguing that the district court erred in applying a
four-level enhancement to his base offense level for possession
of a firearm under U.S. Sentencing Guidelines Manual (“USSG”)
§ 2K2.1(b)(6) (2007). We affirm.
We review Mayers’s sentence for reasonableness under a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41, 51 (2007). In conducting this review,
we must ensure that the district court correctly calculated the
Guidelines range. Id. at 49, 51. When reviewing the district
court’s application of the Guidelines, we review findings of
fact for clear error and questions of law de novo. United
States v. Sosa-Carabantes, 561 F.3d 256, 259 (4th Cir. 2009). A
district court’s determination that there are sufficient facts
to impose a USSG § 2K2.1(b)(6) enhancement is a factual finding.
See United States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001)
(stating that the Government has the burden of proving facts to
support a USSG § 2K2.1(b)(5) enhancement by a preponderance of
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the evidence and that the district court’s finding that
sufficient facts exist to support the enhancement is reviewed
for clear error). Under the clear error standard of review,
this court will reverse only if it is “left with the definite
and firm conviction that a mistake has been committed.” United
States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (internal
quotation marks omitted).
Section 2K2.1(b)(6) of the Sentencing Guidelines
provides for a four-level enhancement if the defendant “used or
possessed any firearm or ammunition in connection with another
felony offense.” USSG § 2K2.1(b)(6). This finding encompasses
two requirements: that the defendant committed “another felony”
and that he used or possessed the firearm “in connection with”
the other felony. United States v. Blount, 337 F.3d 404, 410-11
(4th Cir. 2003). * “‘Another felony offense’, for purposes of
subsection (b)(6), means any federal, state, or local
offense . . . punishable by imprisonment for a term exceeding
one year, regardless of whether a criminal charge was brought,
or a conviction obtained.” USSG § 2K2.1, cmt. n.14(C).
Here, the district court applied the USSG
§ 2K2.1(b)(6) enhancement based on its conclusion that Mayers
possessed a firearm in connection with the offense of assault
*
Mayers does not contest the “in connection with” element.
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with a deadly weapon with intent to kill, a felony under North
Carolina law. The elements of the crime of assault with a
deadly weapon with intent to kill are: “(1) an assault; (2) with
a deadly weapon; (3) with the intent to kill.” State v. Garris,
663 S.E.2d 340, 349 (N.C. Ct. App. 2008) (internal quotation
marks omitted); see N.C. Gen. Stat. § 14-32(c) (2009) (“Any
person who assaults another person with a deadly weapon with
intent to kill shall be punished as a Class E felon.”).
Although Mayers argues that the evidence is
insufficient to show that he committed an assault with a deadly
weapon with the intent to kill, we conclude that the presentence
report’s (“PSR”) uncontroverted description of the offense
conduct amply supports the district court’s finding. According
to the PSR, in the course of beating his girlfriend, Mayers
knocked her to the ground, pulled a firearm out of his
waistband, cocked it, placed it at her temple and warned her to
“handle” the situation or things would “get nasty.” We conclude
this conduct constitutes assault with a deadly weapon.
See State v. O’Briant, 258 S.E.2d 839, 841-42 (N.C. Ct. App.
1979). Further, in view of this violent attack and Mayers’s
history of assault against the same victim, the district court
could infer his intent to kill. See State v. Thacker,
189 S.E.2d 145, 150 (N.C. 1972); State v. Musselwhite, 297
S.E.2d 181, 184 (N.C. Ct. App. 1982).
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We therefore conclude that the district court did not
clearly err in imposing the USSG § 2K2.1(b)(6) enhancement.
Accordingly, we affirm the district court’s judgment. 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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