US v. Markus Harris, No. 13-4554 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4554 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MARKUS MAURICE HARRIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:12-cr-00381-BO-1) Submitted: February 27, 2014 Decided: March 12, 2014 Before MOTZ, AGEE, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Eric J. Brignac, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Markus Maurice Harris appeals the 115-month sentence imposed following his guilty plea to possession of a firearm and ammunition as § 922(g)(1) district a convicted (2012). court s enhancement for On felon, appeal, application possession in Harris of of a violation a of 18 challenges four-level firearm in U.S.C. only the Guidelines connection with another felony offense, pursuant to U.S. Sentencing Guidelines Manual ( USSG ) § 2K2.1(b)(6)(B) (2012). For the reasons that follow, we affirm. In considering whether a district court properly imposed a Guidelines enhancement, we review factual findings for clear error and legal determinations de novo. United States v. Chandia, 675 F.3d 329, 337 (4th Cir. 2012). We will find a court s factual finding clearly erroneous only if we are left with the definite and firm conviction that a mistake has been committed. Cir. 2013) permissible United States v. Crawford, 734 F.3d 339, 342 (4th (quotation views of marks the omitted). evidence, Where the between them cannot be clearly erroneous. there are factfinder s two choice Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). An appropriate enhancement when a under firearm or USSG § 2K2.1(b)(6)(B) ammunition possessed by is a defendant facilitated, or had the potential of facilitating, 2 another felony offense. felony offense is USSG § 2K2.1 cmt. n.14(A). defined as any federal, Another state, or local offense . . . punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained. USSG § 2K2.1 cmt. n.14(C). The purpose of Section 2K2.1(b)(6) is to punish more severely a defendant who commits a separate felony offense that is rendered more dangerous by the presence of a firearm. United States v. Jenkins, (quotation 566 F.3d 160, 164 The requirement (4th Cir. 2009) marks omitted). that the firearm be possessed in connection with another felony is satisfied if the firearm had some purpose including or if the effect with firearm embolden the actor. respect was to present the for other offense, protection or to United States v. McKenzie-Gude, 671 F.3d 452, 464 (4th Cir. 2011) (quotation marks omitted). However, the requirement is not satisfied if the firearm was present due to mere accident or coincidence. (quotation marks omitted). Jenkins, 566 F.3d at 163 The Guidelines commentary specifically provides that a defendant possesses a firearm in connection trafficking proximity with another offense to drugs, in felony which a in the firearm drug-manufacturing case is of found materials, a in or drug close drug paraphernalia . . . because the presence of the firearm has the 3 potential of facilitating [that drug-trafficking] offense. USSG § 2K2.1 cmt. n.14(B). felony The Government bears the burden of establishing the propriety of a Guidelines enhancement by a preponderance of the evidence. United States v. Blauvelt, 638 F.3d 281, 293 (4th Cir. 2011). The district court imposed the enhancement after finding that Harris possessed the firearm in connection with a drug trafficking offense. On appeal, Harris argues that the Government failed to meet its burden to establish the requisite connection between the drugs and thoroughly reviewed the record the and firearm. conclude court s finding was not clearly erroneous. that We the have trial The gun was found on the driver s side floorboard of the vehicle Harris had been in immediately prior to his arrest, and was thus easily accessible to Harris, who had been in the front passenger seat. Further, a large amount of cash was found on Harris person, and Harris conceded ownership of the gun and what the court determined was a distribution amount of marijuana. the same bag as a digital scale. court s finding trafficking. that Harris The marijuana was held in This evidence supported the was engaged in marijuana See, e.g., United States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005) (listing factors from which to infer intent to distribute, including the quantity of the drugs, the packaging, where the drugs are hidden, and the amount of 4 cash seized with the drugs ); United States v. Carrasco, 257 F.3d 1045, 1048 (9th Cir. 2001) (recognizing that scales are well-known tools for the packaging and sale of drugs, and collecting cases). The fact that the firearm was accessible to Harris while he possessed the marijuana in the vehicle, and the fact that the cash and the ammunition were both found on Harris person at the time of his arrest, suggest a connection between the drugs and the firearm s purpose. See United States v. Blount, 337 F.3d 404, 411 (4th Cir. 2003) (noting relevance of gun s accessibility to finding it facilitated another offense). When viewed in light of Harris concomitant possession of distribution paraphernalia, the evidence supported the finding that the presence of the firearm in proximity to the drugs was more than mere accident or coincidence, see Jenkins, 566 F.3d at 163 embolden (quotation or marks protect omitted), Harris drug but rather trafficking. was used Because to the record was adequate to support a finding that Harris possessed the firearm conclude the in connection district with court a did felony not err drug in offense, imposing we the enhancement. Accordingly, we affirm the district court s judgment. We dispense with oral argument 5 because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 6
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