US v. Rodney Lucas, No. 12-4509 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4509 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RODNEY LUCAS, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, Chief District Judge. (4:11-cr-00071-D-1) Argued: September 20, 2013 Decided: October 18, 2013 Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and Gina M. GROH, United States District Judge for the Northern District of West Virginia, sitting by designation. Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Groh joined. Chief Judge Traxler wrote a separate opinion concurring in the result. ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Joshua L. Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 DIAZ, Judge: Rodney Lucas appeals the 228-month prison sentence imposed by the district court following his guilty plea to being a convicted felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924. On appeal, Lucas contends that the district court procedurally erred in applying a four-level enhancement under the U.S. Sentencing Guidelines ( U.S.S.G. ) firearm in § 2K2.1(b)(6)(B) connection with because another he felony did not offense. possess a He also argues that the sentence was substantively unreasonable. For the reasons that follow, we reject these arguments and affirm. I. A. On October 13, 2009, a confidential informant told police in Washington, North Carolina that Lucas, a convicted felon, was gathered with several others near a Washington residence and was in possession of a firearm. When police officers arrived at the scene, and Lucas fled on foot ran into the home of Helen Guthrie. Once inside, Lucas hid a .357-magnum revolver in the freezer. The police followed Lucas into the house and found six rounds of .357-magnum ammunition on his person. After arresting Lucas, officers retrieved the firearm from the freezer. 3 The police later obtained and executed a warrant to search Lucas s house, where they found, inter alia, 35 rounds of hollow-point ammunition. A grand jury charged Lucas in a two-count indictment with possessing after a firearm having been (Count One) convicted and of ammunition a crime (Count Two) punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1), 924. Lucas pleaded guilty to both counts without a plea agreement. B. The Lucas s Presentence criminal adjusted Investigation history offense Report category level of at 21, ( PSR ) VI. It reflecting calculated recommended a an four-level enhancement pursuant to U.S.S.G. § 2K2.1, which applies when a defendant connection used or with possessed another any firearm felony or ammunition offense. in U.S.S.G. § 2K2.1(b)(6)(B). The government moved for an upward departure pursuant to U.S.S.G. § 4A1.3(a)(1), which authorizes an upward departure if the court believes substantially defendant s the defendant s under-represents criminal history the or defendant will commit other crimes. 4 criminal the history category seriousness of the likelihood that the Lucas objected, requesting the court sentence him within the Guidelines range on both counts, to run concurrently or partially concurrently with an undischarged state sentence. He argued that a more lenient sentence was appropriate in light of his age 1 and the fact that his last probation violation was approximately five years earlier. The district court determined that the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was appropriate. It found that Lucas of committed the felony common law offense obstruction of justice when he hid the revolver in the freezer, and that his illegal possession of a firearm facilitated that offense. guilty In the alternative, the court found that Lucas was of resultant a felony offense for breaking level of into 21, in Guthrie s home. combination with The the applicable criminal history category of VI, yielded an advisory Guidelines range of 77 to 96 months in prison. The U.S.S.G. sentencing court § 4A1.3(a)(4)(B). then The departed court upward found pursuant that to Lucas s extensive criminal record warranted a ten-level increase in the offense level, raising the total from 21 to 31. With the adjusted offense level, the advisory Guidelines range increased to 188 to 235 months. 1 Lucas was forty-one years old at sentencing. 5 The court also concluded that consecutive sentences were appropriate under U.S.S.G. § 5G1.2(d). need for a lengthy sentence in The court explained the terms of Lucas s extensive criminal record: [T]his tale of the life of crime of Rodney Lucas began at age 17. Here we are 59 convictions later . . . . . . . . He has eight felony drug convictions, one felony assault by strangulation conviction, one habitual felon conviction. He s committed crimes, serious crimes, while on probation. He has committed crimes within months or even weeks of being released from prison. Nothing--nothing other than incarceration seems to slow down Rodney Lucas when it comes to being a criminal. He truly is a one man crime wave. It s who he is, it s what he does. And sadly . . . I think it s who [he will] always be. J.A. 85-86. The court imposed a 120-month sentence on Count One and a 108-month sentence on Count Two, to be served consecutively for a total term of 228 months. This appeal followed. II. Our review of criminal sentences is limited to determining whether they are reasonable. 38, 46 (2007). Gall v. United States, 552 U.S. Our first step is to ensure that the district court committed no significant procedural error, such as failing to properly calculate the advisory Guidelines range. United States v. Rivera-Santana, 668 F.3d 95, 100 (4th Cir.), cert. 6 denied, 133 S. Ct. 274 (2012). In assessing a challenge to a sentencing court s application of the Guidelines, we review the court s factual findings conclusions de novo. for clear error and its legal United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010) (internal quotation marks omitted). Absent a significant procedural error, our next step is to assess the substantive reasonableness of the sentence imposed. Rivera-Santana, 668 F.3d at 100. whether inside, Guidelines standard. just range, we outside, apply In reviewing any sentence, or a significantly deferential outside the abuse-of-discretion United States v. Savillon-Matute, 636 F.3d 119, 122 (4th Cir. 2011) (internal quotation marks omitted). III. A. 1. Lucas erred by § 2K2.1. first claims applying a that the four-level district court enhancement procedurally under U.S.S.G. He does not argue that obstruction of justice cannot constitute another felony for purposes of the enhancement. 2 2 Obstruction of justice is a common law offense in North Carolina and encompasses any act which prevents, obstructs, impedes or hinders public or legal justice. In re Kivett, 309 S.E.2d 442, 462 (N.C. 1983) (internal quotation marks omitted). The offense is a felony if the conduct is infamous, done in (Continued) 7 Rather, he disputes whether a felon in possession s act of getting rid of the firearm can ever be in connection with a felony obstruction of justice within the meaning of § 2K2.1(b)(6)(B). A party possesses a firearm in connection with another offense if the firearm facilitated, or had the potential of facilitating the other offense. U.S.S.G. § 2K2.1 cmt. n.14(A). A firearm satisfies this requirement when it had some purpose or effect with respect to the other offense . . . including if the firearm actor. 2009) was present for protection or to embolden the United States v. Jenkins, 566 F.3d 160, 162 (4th Cir. (internal quotation marks and citation omitted). The requirement is not satisfied if the firearm is present by mere accident or coincidence. United States v. Blount, 337 F.3d 404, 411 (4th Cir. 2003) (internal quotation marks omitted). The district court concluded that possession of a firearm can facilitate obstruction of justice when the conduct underlying the obstruction consists of ditching the weapon to avoid detection by law enforcement. In the district court s secrecy and malice, or with deceit and intent to defraud. State v. Taylor, 713 S.E.2d 82, 88 (N.C. Ct. App. 2011) (quoting N.C. Gen. Stat. § 14-3(b)). In this case, the district court found that Lucas hid the revolver with deceit and intent to defraud, i.e., to prevent the police from discovering his unlawful possession of a firearm. 8 view, when presence of discard it. a felon the possesses weapon a itself firearm, that it is motivates the the illegal felon to And without its illegal presence, the obstruction would not be possible. Cf. United States v. Nale, 101 F.3d 1000, 1004 (4th Cir. 1996) (finding the defendant possessed a gun in connection with a sexual assault because the offense would not have been possible but for the weapon ). In sum, the district court found that [t]he .357 revolver was the very subject of this obstruction of justice and thus facilitated the other offense. J.A. 70. We may reverse this finding only for clear error, which requires that we be left with the definite and firm conviction that a mistake has been committed. United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007) (internal quotation marks omitted). evidence in the record did not compel the Although the district court s finding, we cannot say the court s conclusions were implausible in light of the record as a whole. Under such circumstances, we do not disturb the district court s finding, even though we may well have weighed the evidence differently. See United States v. Hall, 664 F.3d 456, 467 (4th Cir. 2012); cf. United States v. Hampton, 628 F.3d 654, 663-64 (4th Cir. 2010) (affirming the district court s finding that the defendant s possession of a firearm, which he never exposed to officers, facilitated the 9 felony of assaulting a police officer while resisting arrest when it was a close call). 3 2. Lucas conduct also argues would that applying contravene § 2K2.1(b)(6)(B). We the have the enhancement purpose previously of to his U.S.S.G. recognized that the enhancement serves to ensure that a defendant receives more severe punishment offense within the if, in scope addition of to committing § 2K2.1, he a firearms a separate commits felony offense that is rendered more dangerous by the presence of a firearm. Blount, 337 F.3d at 406. Lucas asserts that he rendered the firearm less dangerous by discarding it. However, rendered whether the the the relevant question is not dangerous by discarding felony--obstruction of firearm other less dangerous as a result of his conduct. whether Lucas it, justice--became but more Had Lucas successfully concealed his unlawful possession from law enforcement by hiding the revolver and otherwise managed to elude the officers, he could have retrieved the weapon after the police departed. Moreover, leaving an unsecured firearm in someone s home without 3 Because we find that the err in finding that Lucas s facilitated a felony obstruction the district court s alternative of breaking into Guthrie s house. 10 district court did not clearly act of discarding the gun of justice, we do not address finding that Lucas was guilty the homeowner s knowledge hardly renders the weapon less dangerous. Nor are we § 2K2.1(b)(6)(B) persuaded on by these Lucas s facts argument will that expose applying nearly all § 922(g)(1) defendants to the enhancement. The fact that most felons evidence in possession (even misconduct attempt true) punishment. if Moreover, to conceal should not district courts immunize must make of their them from independent findings on all of the elements of obstruction of justice before applying the enhancement, dispelling any concern that the enhancement will apply to felons in possession as a matter of course. Cf. United States v. Dunningan, 507 U.S. 87, 96-97 (1993), abrogated on other grounds, United States v. Wells, 519 U.S. 482 (1997) (the fact that the trial court must make findings to support all the elements of a perjury violation in the specific case obviates the concern that courts will enhance sentences under U.S.S.G. § 3C1.1 for obstruction of justice as a matter of course). In sum, we decline to set aside the district court s application of § 2K2.1(b)(6)(B) to these facts. 4 4 The district court also made clear its intent to impose the exact same sentence on each of the[] counts in light of the factors enumerated in 18 U.S.C. § 3553(a). J.A. 101. We find no abuse of discretion in the district court s alternative sentence. As a result, any error the district court may have (Continued) 11 B. Lucas also contends that his 228-month prison sentence is substantively district § 4A1.3 unreasonable. court s based decision on his Specifically, to upwardly criminal history. he objects depart He under argues to the U.S.S.G. that the district court improperly focused on the sheer number of past convictions without sufficiently considering the fact that many of those convictions were for motor vehicle offenses. claims that recidivism, incarceration and he is an is an unlikely ineffective recidivist He also deterrent in any to event because of his age. When reviewing a departure under § 4A1.3, we consider whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range. United States v. McNeil, 598 F.3d 161, 166 (4th Cir. 2010) (internal quotation marks omitted). At sentencing, the district court waded through Lucas s extensive criminal record and carefully recounted the severity committed in imposing the § 2K2.1 enhancement was harmless. See Savillon-Matute, 636 F.3d at 123-24; see also United States v. Hargrove, 701 F.3d 156, 163 (4th Cir. 2012), cert. denied, 133 S. Ct. 2403 (2013) (rejecting a narrow application of assumed error harmless error review). 12 of his past convictions. See J.A. 79-83. It noted that Lucas had committed several violent offenses and underscored that his history appears Additionally, the only to court be getting considered worse. Lucas s Id. numerous at 84. parole violations, and noted that past efforts by the North Carolina criminal justice system to show Lucas leniency failed to stop him from engaging in criminal conduct. It found that only a lengthy sentence would deter Lucas and protect the community. In these circumstances, the 228-month sentence is substantively reasonable. IV. For the reasons stated above, we affirm the sentence imposed by the district court. AFFIRMED 13 TRAXLER, Chief Judge, concurring in the result: I would affirm the sentence on the alternative basis given by the district court, namely that the § 2K2.1(b)(6)(B) enhancement was proper because Lucas committed felony breaking or entering possession when of he the entered firearm Guthrie s home and because facilitated that felony. his For a breaking or entering to be felonious under North Carolina law, the unprivileged entry must be made with the intent to commit another felony or larceny. See N.C.G.S. § 14-54(a); States v. Carr, 592 F.3d 636, 644 (4th Cir. 2010). United Lucas argues that the district court clearly erred to the extent that it found that Lucas entered Guthrie s residence with the intent to obstruct justice by hiding the gun there. I believe, however, that it was reasonable for the court to infer that Lucas, a felon, fled from the police because he did not want to be caught with the gun and that he entered Guthrie s home with the intent of hiding the gun. Even assuming arguendo that the district court procedurally erred in applying the enhancement, however, I agree with my colleagues that any error was harmless. See ante at 11 n.4. The that district court unequivocally stated its choice of sentence did not depend on the correctness of the enhancement, and the court declared that it would select the very same sentence were we to hold that the enhancement did not apply. 14 Especially considering Lucas s truly awful pattern of recidivism, we have no reason whatsoever to doubt the district court on this point. Accordingly, so long as the alternative sentence was not an abuse of discretion, any error in applying the enhancement was harmless. See United States v. Savillon- Matute, 636 F.3d 119, 123 (4th Cir. 2011) (holding that when a district court gives an alternative, substantive basis for a sentence to account for the contingency that the district court has committed procedural error, the alternative sentence is reviewed for abuse of discretion, and if it is found to be reasonable, then any remaining, alleged procedural errors are presumed to be harmless); see also United States v. Hargrove, 701 F.3d 156, 162 (4th Cir. 2012) (rejecting the argument that Savillon-Matute should be read narrowly to apply only under the unique circumstances of that case ), cert. denied, 133 S. Ct. 2403 (2013). I do not believe that the alternative sentence constituted an abuse of discretion. The court discussed in great detail Lucas s criminal record of 59 convictions, which included many violent crimes. his probation exceptionally The court also noted that Lucas had violated on several 15 well drug he was J.A. were committed that proclivity for crime had only increased over the years. observations a found whose These and and dealer 86. violent occasions founded and, if the § 2K2.1(b)(6)(B) enhancement did not apply, a significant upward departure under U.S.S.G. § 4A1.3 would have been justified in light of both the seriousness of Lucas s criminal history and the significant chance of his recidivism. 16

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