US v. Matthew Shelton, No. 08-4490 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4490 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MATTHEW ALWAN SHELTON, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:07-cr-00335-BO-1) Submitted: January 29, 2009 Decided: March 16, 2009 Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Matthew counterfeit possession Alwan currency, of Shelton 18 pled U.S.C. counterfeit guilty § 471 currency, to (2006) 18 U.S.C. manufacturing (Count § 472 1); (2006) (Count 2); and possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006) (Count 3), and was sentenced to a term of fifty-seven months imprisonment. Shelton appeals his sentence, contending that the district court erred in making a 4-level increase for use of the firearm in connection with another felony, U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) (2007). We affirm. Shelton was arrested in September 2007 after a stolen car was traced to him. He consented to a search of the motel room girlfriend where he and his were staying. The search yielded two loaded handguns, a digital scale, thirteen grams of marijuana, plastic baggies, and one dose of Ecstasy. In the stolen vehicle, police found another digital scale, marijuana residue, and a counterfeit $100 bill. At Shelton s former residence, police found a printer/copier/scanner and evidence of the counterfeiting of $100 bills. Shelton admitted that he owned one of the guns and that the other belonged to a friend. Shelton said he bought the gun for protection in July 2007, the same month he began manufacturing counterfeit currency. He said he and a friend known as Banga manufactured about $100,000 worth 2 of counterfeit currency in two months, and gave over $15,000 in counterfeit currency to William Jefferson. A week earlier, Jefferson had been arrested after he tried to sell $10,000 in counterfeit currency to an undercover agent for five ounces of cocaine. personal Shelton said the drugs in his possession were for use only, but that he had been if a planning to use counterfeit money to buy Ecstasy. The enhancement applies defendant used or possessed any firearm or ammunition in connection with another felony offense. Application Note 14(A) to § 2K2.1 states that subsection (b)(6) applies if the firearm . . . facilitated, or had the . . . . * satisfied potential of facilitating, another felony offense Although the in connection with requirement is not when the firearm is present merely by accident or coincidence, United States v. Blount, 337 F.3d 404, 411 (4th Cir. 2003), facilitation is shown if the gun was present for protection or to embolden the actor. United States v. Lipford, 203 F.3d 259, 266 (4th Cir. 2000) (interpreting § 924(c)). In the an presentence report, the probation * officer recommended Application Note 14(B) further provides that, in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia[,] application of subsection (b)(6) is warranted because the presence of the firearm has the potential of facilitating another felony offense . . . . (emphasis added). 3 enhancement under subsection (b)(6) for possession of a firearm in furtherance of the counterfeiting offense and in connection with the felonious possession of ecstasy. Shelton argued unsuccessfully at sentencing that the government had not shown any connection between the gun and his counterfeiting and that the presence of the Ecstasy pill in his backpack with the gun was coincidental because he had all his belongings in the backpack. The district court s determination that a defendant possessed a firearm in connection with another felony offense is a factual question, United States v. Garnett, 243 F.3d 824, 829 (4th Cir. 2001), and is thus reviewed for clear error. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008). bought a In light of Shelton s admission that he gun for protection counterfeiting, and that counterfeit money, clearly err. counterfeit we he are around intended satisfied the to that time buy the he began Ecstasy court did with not As the district court noted, buying drugs with money is an inherently dangerous activity. Possession of a firearm had the potential to embolden Shelton and thus facilitated both his counterfeiting activity and his possession of drugs. Accordingly, we affirm the sentence. oral argument because the facts 4 and legal We dispense with contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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