US v. Joshua Davis, No. 14-4202 (4th Cir. 2014)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4202 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSHUA DAVIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:13-cr-00013-FL-1) Submitted: October 30, 2014 Decided: November 7, 2014 Before WILKINSON, KEENAN, and WYNN, 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 Affirmed by unpublished per curiam opinion.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, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joshua Davis pled guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2012), and was imprisonment. sentenced Davis to appeals a his term of sentence, sixty months’ challenging the district court’s application of a four-level increase in offense level, § pursuant firearm offense. had U.S. (2013), 2K2.1(b)(6) to based on potential of the Sentencing the Guidelines court’s facilitating finding Manual that another the felony We affirm. Davis, a convicted felon, was arrested following a police chase that ensued when a police officer attempted to stop the vehicle in which Davis was a passenger. The officer pursued the vehicle in response to a tip from a confidential informant that Davis was traveling with a handgun and ammunition. Officers found a small quantity of counterfeit cocaine on Davis’ person and a loaded handgun and ninety-eight grams of counterfeit crack cocaine wrapped in plastic bags in the back seat of the car. Over Davis’ objection, the district court applied the four-level enhancement under USSG § 2K2.1(b)(6)(B), because the court found that the firearm had the potential of facilitating another felony offense, counterfeit drugs. 2 namely, distribution of When evaluating Guidelines calculations, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Cox, 744 F.3d 305, 308 (4th Cir. 2014). We will find clear error only when, “on the entire we evidence[, are] left with the definite conviction that a mistake has been committed.” quotation marks omitted). establish should by a apply firm Id. (internal The burden is on the Government to preponderance a and sentencing of the evidence enhancement. that the United court States v. Blauvelt, 638 F.3d 281, 293 (4th Cir. 2011). The Guidelines provide for a four-level enhancement under USSG § 2K2.1(b)(6)(B) if a defendant “used or possessed any firearm offense.” or ammunition Section in connection 2K2.1(b)(6) is with intended another “to felony 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). Davis argues that the district court clearly erred in applying the § 2K2.1(b)(6)(B) enhancement, because the Government failed to meet its burden of proving that his possession of the firearm was “in connection” with another felony offense. The commentary to § 2K2.1(b)(6)(B) provides that the enhancement applies when a firearm 3 possessed by a defendant “facilitated, or felony offense.” had the potential of facilitating, USSG § 2K2.1 cmt. n.14(A). another Here, the district court found that the firearm had the potential to facilitate the felony offense of distribution of counterfeit drugs. Many factors can “lead a fact finder to conclude that a connection existed between a defendant’s possession of a firearm and his drug trafficking activity.” United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). These include the “type of drug activity . . . being conducted, accessibility of the firearm, the type of weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.” Id. (internal quotation marks omitted). In this case, the loaded handgun and the counterfeit drugs were found in the back seat of the vehicle, within reach of Davis, the front seat passenger, who also had counterfeit crack in his pocket. It is well established in this circuit that handguns are a tool of the drug trade. United States v. Madigan, 592 F.3d 621, 629 (4th Cir. 2010); United States v. Ward, 171 F.3d 188, 194 (4th Cir. 1999). The quantity and packaging of the counterfeit drugs were also consistent with drug distribution. (4th Cir. 1996). United States v. Lamarr, 75 F.3d 964, 973 Moreover, as the district court noted, selling 4 counterfeit drugs is an inherently dangerous activity and it was reasonable to infer that the handgun was present to protect Davis as he engaged in trafficking the counterfeit drugs. See United States v. McKenzie-Gude, 671 F.3d 452, 463-64 (4th Cir. 2011) (holding another offense that for firearm purposes is possessed of in connection § 2K2.1(b)(6) when with it “was of the present for protection or to embolden the actor”). We conclude that, under the totality circumstances, the district court did not clearly err in finding bya preponderance of the evidence that Davis’ possession of the firearm had the potential to facilitate another felony offense. Accordingly, we affirm Davis’ sentence. 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
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
