United States v. Timothy Mooningham ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0062n.06
No. 18-5255
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
FILED
Feb 07, 2019
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
TIMOTHY MOONINGHAM, )
DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
Before: BOGGS, KETHLEDGE, and STRANCH, Circuit Judges.
KETHLEDGE, Circuit Judge. Timothy Mooningham challenges his 87-month sentence
for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He argues, among
other things, that the district court sentenced him based on an erroneous finding of fact. We agree
and vacate Mooningham’s sentence.
I.
In 2016, Timothy Mooningham was driving with two female passengers in Tullahoma,
Tennessee, in a car that Mooningham had borrowed from an acquaintance. Mooningham ran a
stop sign, and a police officer pulled him over. Mooningham and one of his passengers told the
officer that they were on their way to check on Mooningham’s aunt, who was supposedly having
a medical emergency. Moments later, however, the pair fled on foot.
Turning back to the car, the officer noticed the smell of marijuana. He searched the car
and found a 9-millimeter handgun in the center console next to the driver’s seat. Near the front
No. 18-5255, United States v. Mooningham
passenger seat, he found a bag with 20 grams of marijuana, 26 grams of methamphetamine, and
41 Xanax pills; in the back seat, he found another bag with two more guns and some “loose gold
items”; and in the trunk, he found several pieces of audio equipment in their original packaging.
Later that day, police arrested Mooningham and found $1,480 in cash on his person. He was
thereafter charged with one count of being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). He pled guilty.
At the sentencing hearing, the district court increased Mooningham’s offense level by four
levels after determining that he possessed the firearm “in connection with another felony offense.”
U.S.S.G. § 2K2.1(b)(6)(B). The court determined that the proper Guidelines range was 51 to 63
months. But the court thought this range did not reflect Mooningham’s remarkable criminal
record: by age 33, he had amassed 33 criminal convictions, including 17 for felonies, four of which
were for burglary. Over Mooningham’s objection, the court then concluded that the sentencing
factors listed in 18 U.S.C. § 3553(a) weighed in favor of an upward variance. Hence the court
varied upwards from Mooningham’s Guidelines range by 24 months and sentenced him to
87 months’ imprisonment.
Mooningham filed a motion to reconsider his sentence, arguing that the district court’s
upward variance was improper, in part because (in Mooningham’s view) the court had relied on
some unnamed studies regarding recidivism rates for burglars. The court denied the motion,
explaining that it had based Mooningham’s sentence on his own record of recidivism, not general
studies. The court added, however, that Mooningham had committed “more than one” prior
offense involving “possession of a firearm.” The court then entered judgment and this appeal
followed.
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No. 18-5255, United States v. Mooningham
II.
A.
Mooningham challenges the district court’s finding that he possessed the pistol “in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). We review the district
court’s factual findings for clear error, giving “due deference” to the court’s determination. See
United States v. Taylor, 648 F.3d 417, 432 (6th Cir. 2011).
Section 2K2.1 of the Guidelines provides for a four-level increase of the defendant’s
offense level if his possession of a firearm “facilitated, or had the potential of facilitating, another
felony offense[.]” U.S.S.G. § 2K2.1 cmt. n.14(A). This enhancement applies when the
government shows a “nexus” between the firearm and drug trafficking, e.g., by showing that the
firearm was in “close proximity” to drugs. Taylor, 648 F.3d at 432; see also U.S.S.G. § 2K2.1
cmt. n.14(B).
Here, the district court found a nexus between the firearm and drug trafficking based on
several facts. First, Mooningham had “easy access” to the pistol, which was next to him in the
car’s center console. See United States v. Angel, 576 F.3d 318, 321 (6th Cir. 2009). He also had
access to a distribution quantity of drugs—more than $2,600 worth—found by the front passenger
seat and in “close proximity” to the gun. See id. at 322. And when he was arrested, he possessed
$1,480 in cash—even though he was then living on food stamps and had worked only sporadically
since his release from prison six months earlier. See United States v. Burns, 498 F.3d 578, 581
(6th Cir. 2007). Together, these facts gave the district court an ample basis to infer that
Mooningham had possessed the firearm in connection with drug trafficking. See United States v.
Hardin, 248 F.3d 489, 499-500 (6th Cir. 2001).
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No. 18-5255, United States v. Mooningham
Mooningham contends that the district court could not infer that he physically possessed
either the gun or the drugs, because he was driving a borrowed car with two other passengers. But
Mooningham admitted that he constructively possessed the firearm when he pled guilty to being a
felon in possession of a firearm. He cannot dispute that fact now. See id. at 498. And the court
made “an entirely reasonable inference” that Mooningham had possessed the drugs based on their
proximity to the driver’s seat. Cf. Maryland v. Pringle, 540 U.S. 366, 372 (2003). Mooningham’s
challenge to the enhancement is meritless.
B.
Mooningham argues that the district court abused its discretion when it “select[ed] a
sentence based on [a] clearly erroneous fact[].” United States v. Woods, 604 F.3d 286, 290 (6th
Cir. 2010). Specifically, Mooningham asserts that, in the district court’s order denying
reconsideration, the district court mistakenly recited that “[m]ore than one” of Mooningham’s prior
convictions had “involved possession of a firearm[.]” Mooningham is correct: although the
Presentence Report stated that he possessed a gun when he was arrested for one of his prior
convictions, in that case the arrest came well after the crime itself. The PSR did not state whether
Mooningham possessed the gun during the commission of the offense, or why an ensuing gun-
possession charge was dismissed. And though the PSR also stated that Mooningham had another
conviction for “resisting arrest involving [a] weapon,” the PSR did not specify what kind of
weapon—gun or otherwise—was involved in that offense. The district court’s characterization of
Mooningham’s criminal record as presented in this PSR, therefore, was clearly erroneous. And
that characterization appears to have been part of the basis for Mooningham’s sentence. Hence
we vacate his sentence and remand for resentencing.
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