US v. Corey Moody, No. 14-4113 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4113 UNITED STATES OF AMERICA, Plaintiff Appellee, v. COREY DWAYNE MOODY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:13-cr-00065-F-1) Submitted: September 23, 2014 Decided: October 3, 2014 Before NIEMEYER, KING, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Phillip A. Rubin, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Corey Dwayne Moody appeals his 110-month sentence imposed pursuant to his guilty plea to possession of a firearm by a convicted felon. On appeal, he challenges the calculation of his Sentencing Guidelines range, arguing that a four-level upward adjustment for possession of the firearm in connection with another Sentencing felony was Guidelines improperly Manual applied pursuant § 2K2.1(b)(6)(B) to (2013). U.S. We affirm. In reviewing the district court s application of the Sentencing Guidelines, we review its legal conclusions de novo and its factual findings for clear error. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). under USSG § 2K2.1(b)(6)(B) is appropriate An enhancement when a firearm possessed by a defendant facilitated, or had the potential of facilitating, n.14(A). another felony offense. USSG § 2K2.1 cmt. 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, 566 F.3d 160, 164 (4th Cir. 2009) (internal quotation marks omitted). The requirement that the firearm be possessed in connection with another felony is satisfied if the firearm had some purpose or effect with respect 2 to the other offense, including if the firearm embolden the actor. was present for protection or to United States v. McKenzie-Gude, 671 F.3d 452, 463-64 (4th Cir. 2011) (internal quotation marks omitted). However, the requirement is not satisfied if the firearm was present due to mere accident or coincidence. at 163 (internal quotation marks omitted). Jenkins, 566 F.3d The Guidelines commentary specifically provides that a defendant possesses a firearm in connection with another felony in the case of a drug trafficking proximity offense to in drugs, which drug a firearm manufacturing is found in materials, close or drug paraphernalia . . . because the presence of the firearm has the potential offense. of facilitating [the drug-trafficking] felony USSG § 2K2.1 cmt. n.14(B). Moody argues that the enhancement was improper for several reasons: (1) the marijuana possessed at the time of the search was for personal use, and thus, his drug offense was only a misdemeanor establishing under state proximity in law; (2) time there between was no evidence any prior drug trafficking and the possession of the firearm; and (3) Moody presented a credible explanation for the presence of the gun. We conclude that Moody s arguments are contradicted by the record and that the district court did not err in determining that the enhancement should apply. 3 First, Moody admitted to selling marijuana, and an officer testified at sentencing to five controlled buys from Moody s residence prior to execution of the search warrant. Further, § 2K2.1 does not require that the defendant be found engaged in drug recovered. trafficking at the time the firearm is Second, the presentence report ( PSR ) states that the controlled buys continued until the day before the firearm was seized, and Moody stated that he had obtained the firearm a few days prior to the search. evidence of a temporal proximity firearm and drug trafficking. F.2d 157, 162 (4th As such, there was sufficient Cir. between possession of the See United States v. Terry, 916 1990) (holding that a defendant intending to challenge the PSR has an affirmative duty to make a showing that the information is unreliable, and articulate the reasons why inaccurate). the facts contained therein are untrue or Finally, Moody s argument that he obtained the gun for protection against an erratic person in the neighborhood does not render the enhancement erroneous, as a drug trafficker would have a specific and enhanced need for protection. See Jenkins, 566 F.3d at 162. The record establishes that the firearm was located in the same closet as packaged-for-sale marijuana and was easily accessible. Moody admitted to both possessing the firearm and to marijuana selling out of his 4 residence. The firearm therefore had the tendency to facilitate Moody s drug sales by offering him protection and emboldening him to use his residence for drug trafficking. See USSG § 2K2.1 cmt. n.14(B). The district court thus properly found sufficient evidence of drug dealing and a sufficient nexus between the firearm and Moody s drug activities. Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5
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