United States v. William Anthony Hendley , 404 F. App'x 437 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11356 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 9, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00003-JOF-CCH-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllPlaintiff - Appellee,
versus
WILLIAM ANTHONY HENDLEY,
lllllllllllllllllllllDefendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 9, 2010)
Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
William Anthony Hendley pleaded guilty to the unlawful possession of a
firearm by a convicted felon under 18 U.S.C. § 922(g) and was sentenced to a term
of 106 months’ imprisonment and three years of supervised release. Hendley
appeals from his sentence, which he argues was based on an improperly calculated
guidelines range.
I.
One night in April 2008, police in Roswell, Georgia responded to reports of
gunfire in a public park. After arriving at the park, the officers approached two
men leaving a wooded area. When the police identified themselves, one of the
two men, Hendley, fled. The police chased Hendley and eventually apprehended
him. When the officers retraced the path of the chase, they found a handgun and,
20 yards away from the handgun, two cellophane bags. One bag contained 14.4
grams of crack cocaine and the other contained 3.3 grams of marijuana. Although
the officers had not seen Hendley discard the drugs, they assumed that he must
have because the bags were dry despite a recent rainstorm. Hendley’s hands tested
positive for gunshot residue, and he eventually admitted that the gun was his.
Hendley was indicted for possession with intent to distribute more than five
grams of cocaine base, 21 U.S.C. § 841, possession of a firearm as a convicted
felon, 18 U.S.C. § 922(g), and possession of a firearm in furtherance of a
drug-trafficking offense, 18 U.S.C. § 924(c). Hendley pleaded guilty to the felon-
in-possession charge, and the government moved to dismiss the other charges.
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Before sentencing the probation officer recommended that Hendley’s base
offense level under the Sentencing Guidelines be increased by four points because
he had possessed a firearm “in connection” with another felony, possession of
crack cocaine with intent to distribute. See U.S.S.G. § 2K2.1(b)(6). Hendley
objected to the enhancement, arguing that the drugs were not his and, at any rate,
they were found in a different place from his gun.
At the sentencing hearing, Roswell police detective Mark Macdonald
testified that, while he was chasing Hendley, he smelled unburned marijuana near
a tire that he and Hendley had jumped over. Macdonald further testified that he
found the drugs near the tire about 20 yards from the gun. The government also
argued that the cellophane bags were dry even though it had recently rained and
noted that Hendley had once before discarded drugs while fleeing from the police.
Hendley’s counsel responded that the drugs could have belonged to anyone, and
that if Hendley had discarded them, Macdonald would have seen him do it.
The district court found that the government had proved that Hendley had
probably possessed the firearm in connection with the felony drug offense.
Accordingly, the court applied the enhancement. The resulting guidelines range
was 110 to 120 months’ imprisonment, but the judge varied downward and
sentenced Hendley to 106 months’ imprisonment and three years of supervised
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release. He now appeals his sentence, arguing that it was based on an improperly
calculated guidelines range because his offense level was erroneously enhanced by
the district court’s finding that he had possessed the handgun in connection with
another felony.
II.
We review the district court’s application and interpretation of the
Sentencing Guidelines de novo. United States v. Rhind, 289 F.3d 690, 693 (11th
Cir. 2002). Factual findings, on the other hand, are reviewed for clear error. Id.“For a factual finding to be clearly erroneous, this court, after reviewing all of the
evidence, must be left with a definite and firm conviction that a mistake has been
committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir.
2004). When a defendant objects to an enhancement under the Guidelines, the
government bears the burden of proving any disputed facts by a preponderance of
the evidence. United States v. Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009).
The Sentencing Guidelines provide for a four-point enhancement to a
defendant’s base offense level if he possessed a firearm “in connection with”
another felony. U.S.S.G. § 2K2.1(b)(6). If the other felony is a drug-trafficking
offense, the enhancement applies whenever the firearm was found in close
proximity to the drugs. Id. at comment. (n.14(B)). When the other felony is not a
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drug-trafficking or burglary offense, the enhancement only applies if the
possession of the firearm facilitated or had the potential to facilitate the other
felony. Id. at comment. (n.14(A)).
Although Hendley argues that the government did not present any evidence
that he was engaged in trafficking drugs, he did not object to the PSI’s contention
that the police had found 14.4 grams of crack cocaine. When Hendley was
sentenced, 14.4 grams of crack was sufficient to support an indictment for
possession with intent to distribute. 21 U.S.C. § 841(b)(1)(B)(iii) (2006) amended
by Pub. L. 110-220, § 2(a)(2).1 And possession with intent to distribute is a drug-
trafficking offense.2
Because the quantity of drugs supported a finding that whoever possessed
them was engaged in a drug-trafficking offense, to prove that the enhancement
should apply the government had to show that the drugs and gun were found in
close proximity to one another and that the drugs probably belonged to Hendley.
U.S.S.G. § 2K2.1(b)(6), comment. (n.14(B)).
1
The amount of crack cocaine necessary to support an indictment for possession with
intent to distribute was increased from 5 grams to 28 grams, effective August 3, 2010.
2
See 18 U.S.C. § 924(c)(2) (“For purposes of this subsection, the term ‘drug trafficking
crime’ means any felony punishable under the Controlled Substances Act . . . .”); U.S.S.G. §
5K2.20, comment. (n.1) (“‘Serious drug trafficking offense’ means any controlled substance
offense under title 21, United States Code, other than simple possession . . . that provides for a
mandatory minimum term of imprisonment of five years or greater . . . .”).
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At the sentencing hearing, the government established that the drugs and
gun were found within 20 yards of each other. This satisfies the close-proximity
requirement. The district court also found that drugs were likely Hendley’s and
that he had discarded the drugs as he fled the police. The district court based this
finding on an earlier incident where Hendley discarded drugs while fleeing from
the police, as well as the location of the drugs on the path. In addition, the court
noted that the marijuana’s strong odor suggested that the it had not been in the
open for very long. These facts are sufficient to support the district court’s finding
that the drugs were probably Hendley’s, and that he had possessed a firearm in
connection with another felony offense. Accordingly, the district court’s
application of the § 2K2.1(b)(6) enhancement was correct, and Hendley’s sentence
is
AFFIRMED.
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