US v. Michael Rea, No. 15-4257 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4257 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL R. REA, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard M. Gergel, District Judge. (2:14-cr-00483-RMG-1) Submitted: January 27, 2016 Decided: February 4, 2016 Before WILKINSON, NIEMEYER, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Janis Richardson Hall, Greenville, South Carolina, for Appellant. William N. Nettles, United States Attorney, Nick Bianchi, Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael R. Rea pled guilty, pursuant to a written plea agreement, to manufacturing and possessing with the intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. § 841(b)(1)(B) (2012). The district court sentenced Rea to the 60 months’ imprisonment, mandatory prescribed by statute for the offense. that the district enhancement court pursuant § 2D1.1(b)(1) (2014). to erred U.S. minimum sentence On appeal, Rea contends in applying Sentencing a two-level Guidelines Manual For the reasons that follow, we affirm. This court reviews a sentence for reasonableness, applying an abuse of discretion standard. U.S. 38, 46, 51 (2007). review, we error,” examine including the Gall v. United States, 552 In conducting procedural reasonableness sentence “failing to for “significant calculate (or procedural improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a)[(2012)] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” review the clear error. application of the § 2D1.1(b)(1) Id. We enhancement for United States v. Manigan, 592 F.3d 621, 630-31 (4th Cir. 2010). The Guidelines direct a two-level enhancement “[i]f dangerous weapon (including a firearm) was possessed.” 2 a USSG § 2D1.1(b)(1). In order for the enhancement to apply, “the Government must prove by a preponderance of the evidence that the weapon was possessed in connection with drug activity that was part of the same course of conduct or common scheme as the offense of conviction.” Manigan, 592 F.3d at 628-29 (internal quotation marks omitted). “[P]roof of constructive possession of the [firearm] is sufficient, and the Government is entitled to rely on circumstantial evidence to carry its burden.” Id. If the Government carries its burden, “[t]he enhancement should be applied . . . unless it is clearly improbable that the weapon was n.11(A). connected with the offense.” USSG § 2D1.1 cmt. The defendant bears the burden of establishing such a clear improbability. United States v. Slade, 631 F.3d 185, 189 (4th Cir. 2011). The district court found, and Rea does not contest, that the Government satisfied its burden. We conclude that Rea has not court demonstrated that the district clearly erred in finding that it was not clearly improbable that the firearm was connected with his criminal activity. The district court relied on considerations such as the proximity of one of the firearms which was firearm’s relevant loaded - to the accessibility, to factors determining criminal drug offenses. drugs whether and which drug we firearms proceeds the have recognized as are connected to Manigan, 592 F.3d at 629. 3 and We therefore affirm the judgment of the district court. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 4
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