United States v. Ford , 258 F. App'x 619 ( 2007 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4448
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    ALLEN TYRONE FORD,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.  James C. Dever III,
    District Judge. (5:06-cr-00129-D)
    Submitted:   December 3, 2007          Decided:     December 19, 2007
    Before MOTZ, KING, and GREGORY, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
    Assistant Federal Public Defender, Raleigh, North Carolina, for
    Appellant. George E. B. Holding, United States Attorney, Anne M.
    Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
    Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Allen Tyrone Ford appeals his sentence imposed following
    his guilty plea to possessing a firearm after having been convicted
    of a felony, in violation of 18 U.S.C.A. §§ 922(g) and 924(e) (West
    2000 & Supp. 2007).       Finding no error, we affirm the judgment of
    the district court.
    After receiving information from a confidential informant
    that   Ford    was   distributing    crack   cocaine   from   his   home,    the
    Fayetteville Police Department conducted controlled buys from Ford
    on August 25th and 30th, 2005.          Two days later, on September 1,
    2005, a search warrant was executed at Ford’s home.                 During the
    search, Ford informed the officers that he had a small amount of
    marijuana and a .25 caliber semi-automatic pistol hidden in a
    bedroom.       No    cocaine   or   paraphernalia   associated      with    drug
    distribution was discovered during the search. Ford was ultimately
    indicted for possessing a firearm after having been convicted of a
    felony.
    Prior to Ford’s sentencing, the probation office prepared
    a presentence report.          According to U.S. Sentencing Guidelines
    Manual § 2K2.1(a)(2), Ford had a base offense level of twenty-four.
    Ford’s base offense level was increased four points pursuant to
    USSG § 2K2.1(b)(6) because the probation officer determined that
    Ford possessed the firearm in connection with another felony
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    offense — the sales of cocaine on August 25th and 30th.*               Ford then
    received a three level reduction for acceptance of responsibility,
    resulting in an offense level of twenty-five.                   Ford’s criminal
    history category of IV and his offense level resulted in an
    advisory guidelines range of 84 to 105 months’ imprisonment.
    Ford appeared for sentencing on April 25, 2007.                     At
    sentencing,      Ford   objected     to    the   four   point   enhancement   for
    possessing the firearm in connection with another felony.                     The
    district court overruled Ford’s objection and sentenced him to
    eighty-four months’ imprisonment. Ford timely noted his appeal and
    now argues that:        (1) the district court erred in finding that he
    sold crack cocaine on August 25th and 30th and (2) the district
    court    erred     in    enhancing        his    sentence   pursuant   to     USSG
    § 2K2.1(b)(6).
    U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) provides
    for a four level enhancement if a defendant “used or possessed any
    firearm or ammunition in connection with another felony offense.”
    USSG § 2K2.1(b)(6).       “The purpose of this enhancement is to ensure
    that a defendant receives more severe punishment if, in addition to
    committing a firearms offense within the scope of § 2K2.1, he
    commits a separate felony offense that is rendered more dangerous
    by the presence of a firearm . . . .”             United States v. Blount, 337
    *
    USSG § 2K2.1(b)(6) is the successor to § 2K2.1(b)(5); the
    text was redesignated, without change when the guidelines were
    amended in November 2006.
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    F.3d 404, 406 (4th Cir. 2003) (citing United States v. McDonald,
    
    165 F.3d 1032
    , 1037 (6th Cir. 1999)).
    Following United States v. Booker, 
    543 U.S. 220
    (2005),
    a sentencing court continues to make factual findings concerning
    sentencing factors by a preponderance of the evidence.            United
    States v. Morris, 
    429 F.3d 65
    , 72 (4th Cir. 2005), cert denied, 127
    S.   Ct.   121   (2006).   Long-standing   authority   has   permitted   a
    sentencing court to consider any evidence at sentencing that “has
    sufficient indicia of reliability,” see USSG § 6A1.3(a), including
    “conduct underlying [an] acquitted charge, so long as that conduct
    has been proved by a preponderance of the evidence.” United States
    v. Watts, 
    519 U.S. 148
    , 156-57 (1997) (per curiam); United States
    v. Montgomery, 
    262 F.3d 233
    , 249 (4th Cir. 2001).
    To apply an enhancement pursuant to § 2K2.1(b)(6), a
    district court must find both that (1) a firearm was used and (2)
    that such use was “in connection with another felony offense.”
    United States v. Garnett, 
    243 F.3d 824
    , 828 (4th Cir. 2001)
    (quoting USSG § 2K2.1(b)(5)).      The district court’s decision to
    enhance Ford’s offense level pursuant to § 2K2.1(b)(6) is reviewed
    for clear error.      United States v. Green, 
    436 F.3d 449
    , 456 (4th
    Cir. 2006).
    On appeal, Ford argues that the district court erred in
    applying the § 2K2.1(b)(6) enhancement because the Government
    failed to prove that the predicate “other felonies,” namely cocaine
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    distribution on August 25th and 30th, actually occurred.              At
    sentencing,   the   Government   proffered,   without   objection,   the
    testimony of the case agent. According to the agent, Ford informed
    officers that he had purchased the firearm for protection, that he
    sold crack cocaine to pay for his rent and his marijuana, and that
    he sold crack cocaine from his home daily.     Ford also admitted that
    he would purchase $50 of crack cocaine, cut it into rocks, and sell
    it.     Finally, Ford admitted that he would repeat this process
    several times a day and that he tended to sell more on the
    weekends.
    Ford’s counseled brief fails to take into account the
    testimony of the case agent at sentencing. As described, Ford gave
    the officer a detailed description of his method for selling
    cocaine, including how much he would purchase, how he would package
    the drugs, how often he resupplied, and the times he tended to sell
    more.   Ford’s confession, in conjunction with the information from
    the confidential source that Ford sold cocaine during the two
    controlled buys, established by a preponderance of the evidence two
    prior “other felonies” for purposes of § 2K2.1(b)(6).
    Ford also argues that his § 2K2.1(b)(6) enhancement was
    improper because the Government failed to prove he possessed the
    firearm in connection with the cocaine sales on August 25th and
    30th.   This court has analogized the “in connection with” language
    in § 2K2.1(b)(6) to the definition of “in relation to” in 18 U.S.C.
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    § 924(c).       
    Garnett, 243 F.3d at 828
    ; United States v. Nale, 
    101 F.3d 1000
    , 1003-04 (4th Cir. 1996).          In Smith v. United States, 
    508 U.S. 223
      (1993),   “the     Supreme    Court   determined    that   the   ‘in
    relation to’ language of § 924(c) could be satisfied by proving
    that a weapon facilitated or potentially facilitated the offense.”
    
    Nale, 101 F.3d at 1003
    .         Additionally, this court, in the context
    of § 924(c), has stated that a firearm is used “in relation to”
    another felony offense “if the firearm was present for protection
    or to embolden the actor.”        United States v. Lipford, 
    203 F.3d 259
    ,
    266 (4th Cir. 2000).
    Yet again, Ford’s argument is undercut by his confession.
    Ford’s home was searched just two days after the second controlled
    buy.     At the time of his arrest, Ford admitted both to selling
    crack from his home daily and that he possessed the gun found in
    his home for protection.         Thus, Ford’s admission established by a
    preponderance of the evidence the “in connection with” requirement,
    and the district court did not commit clear error in relying on
    Blount    and    Lipford   to    enhance    Ford’s    sentence    pursuant     to
    § 2K2.1(b)(6).
    Accordingly, we affirm the judgment of the district
    court.    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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