US v. Donavan Baptiste, No. 11-5104 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5104 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONAVAN A. BAPTISTE, a/k/a Donovan A. Baptiste, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:11-cr-00347-DCN-1) Submitted: April 25, 2012 Decided: May 15, 2012 Before WILKINSON, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Christopher W. Adams, CHRISTOPHER W. ADAMS LAW OFFICE, Charleston, South Carolina, for Appellant. William N. Nettles, United States Attorney, Sean Kittrell, Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Donavan agreement, to convicted A. one felon, Baptiste count in 924(a)(2) (2006). of pleaded guilty, possession violation of 18 of without a a firearm U.S.C. plea by a §§ 922(g)(1), He was sentenced to seventy-eight months imprisonment and three years of supervised release. Baptiste appeals the district court s application of a four offense level enhancement for possession of a firearm in connection with another felony offense in calculating his advisory Guidelines sentencing range. We We affirm. review a discretion standard. (2007). We first ensuring that the sentence under a deferential abuse of Gall v. United States, 552 U.S. 38, 51 inspect district for procedural court reasonableness committed no by significant procedural errors such as improperly calculating the Guidelines range. United States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010). We then consider the substantive reasonableness of the sentence imposed, taking into account the totality of the circumstances. Gall, 552 U.S. at 51. The Guidelines require the addition of four offense levels if a defendant used or possessed a firearm in connection with another felony offense. U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) government (2010). The bears the burden of proving the facts necessary to establish the applicability of 2 this enhancement by the preponderance of the evidence, and we review the district court s findings of fact for clear error, giving due deference to the district court s application of the Guidelines to the facts. United States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001). If the defendant presents evidence arguably supporting self-defense or another valid defense, the government ha[s] to negate that defense by a preponderance of the evidence for the § 2K2.1(b)(6) enhancement to apply. United States v. Raglin, 500 F.3d 675, 677 (8th Cir. 2007). In assessing a district court s application of the Guidelines, this court reviews legal conclusions de novo. United States v. Mehta, 594 F.3d 277, 281 (4th Cir. 2010). Here, Baptiste not only illegally possessed a firearm, but also pointed it at an occupied vehicle and shot it nine times. thus Baptiste claims that he only did so in self-defense and did not possess felony offense. court s finding firearm in the firearm in connection with does not challenge the Baptiste that, connection absent with self-defense, the South he another district possessed Carolina felonies the of pointing and presenting a firearm and aggravated assault. To the be defendant difficulty. Self-defense eligible for must without be self-defense fault in in South Carolina, bringing on the State v. Slater, 644 S.E.2d 50, 52 (S.C. 2007). is not available to 3 one who engages in mutual combat. State v. Graham, 196 S.E.2d 495, 495 (S.C. State v. Porter, 239 S.E.2d 641, 643 (S.C. 1977). the facts contained enforcement in officers, Baptiste s we find written support Relying on statements for the 1973); to law Government s contention that Baptiste was not without fault in bringing on the situation that led to his use of the firearm. In response to his feeling that something was gonna happen, Baptiste armed himself and leaned against his friend s car rather than seeking to avoid a confrontation. In doing so, Baptiste placed himself in a position where an encounter could be expected. See Slater, 644 S.E.2d at 52; Graham, 196 S.E.2d at 495-96; Porter, 239 S.E.2d at 643. Thus, the district court did not err in finding by a preponderance of the evidence that Baptiste possessed the firearm in connection with another felony offense. 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 4

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