United States v. Ferguson , 226 F. App'x 849 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 20, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 06-5067
v. (N.D. Okla.)
(D.Ct. No. 04-CR-177-C)
TO N Y RA Y FER GU SO N ,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Tony Ray Ferguson pled guilty to being a felon in possession of a firearm
and ammunition. His counsel filed a brief pursuant to Anders v. California and a
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
motion for leave to withdraw as counsel. 1 386 U.S. 738 (1967). In her brief,
counsel identified no non-frivolous issues for appeal; the brief was given to
Ferguson. Ferguson did not file a responsive brief. However, he did announce
his position in a motion to extend the time for filing, which we will construe as
his response to counsel’s Anders brief. 2 In his response, Ferguson argues the
district court improperly enhanced his sentence under USSG §2K2.1(b)(5) for
possessing a firearm “in connection with” another felony offense. The
government responded to counsel’s Anders brief and Ferguson’s responsive brief.
After thorough examination of the record, we agree with Ferguson’s counsel that
no non-frivolous grounds for appeal appear on this record. Therefore, we
GRANT counsel’s motion to withdraw and DISM ISS the appeal.
Background
In June and July 2004, Agent Joshua Petree arranged for a reliable
confidential informant to purchase crack cocaine from Ferguson. During one
1
Anders holds “if counsel finds [herclient’s] case to be wholly frivolous, after a
conscientious examination of it, [s]he should so advise the court and request permission
to withdraw.” 386 U.S. at 744. Counsel must submit to both the court and [her]client a
“brief referring to anything in the record that might arguably support the appeal.” Id. The
client may then “raise any points [] he chooses.” Id. Thereafter, the court must
completely examine all the proceedings to determine the frivolity of the appeal. “If it so
finds it may grant counsel’s request to withdraw and dismiss the appeal . . . . [I]f it finds
any of the legal points arguable on their merits (and therefore not frivolous) it must, prior
to decision, afford the indigent the assistance of counsel to argue the appeal.” Id.2
Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (pro se
pleadings and papers are liberally construed and held to a less stringent standard than
those drafted by attorneys).
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meeting between the confidential informant and Ferguson, the informant noted
Ferguson stored a semi-automatic pistol in a dresser by his bed. Subsequently,
Petree sought and obtained a search warrant for Ferguson’s residence. On July
28, 2004, law enforcement officers executed the warrant. In Ferguson’s bedroom,
they discovered crack cocaine in a trash can next to Ferguson’s bed, a semi-
automatic pistol in a laundry basket next to his bed, two sets of digital scales on
top of his dresser and ammunition. They also found a set of digital scales in the
kitchen and ammunition throughout the house. After the search, Petree
interviewed Ferguson’s ex-girlfriend, who was at the residence at the time of the
search. She provided a written statement in which she denied possessing the gun
and drugs found in the home.
On November 3, 2004, Ferguson was indicted with being a felon in
possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). On August 18, 2005, he pled guilty to the indictment. Pursuant to
USSG §2K2.1(b)(5), Ferguson’s presentence report (PSR) recommended a 4 level
enhancement to his base offense level of 20 because a firearm was used in
connection with the felony offense of possession of a controlled substance. 3 The
PSR also recommended subtracting 3 levels for acceptance of responsibility,
3
Ferguson was sentenced pursuant to the 2004 edition of the United States
Sentencing Commission Guidelines Manual. All citations to the guidelines in this
opinion refer to the 2004 guidelines unless otherwise indicated.
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resulting in a total offense level of 21. W ith a criminal history category of V, the
guideline range was 70-87 months imprisonment.
At Ferguson’s initial sentencing hearing, Ferguson’s ex-girlfriend was
scheduled to testify. She allegedly was going to testify that the drugs found in
Ferguson’s home were hers and did not belong to Ferguson, thereby refuting the
application of the USSG §2K2.1(b)(5) enhancement. Her attorney appeared
instead and explained she would not be testifying. The hearing was continued to
allow Ferguson an opportunity to subpoena her; Ferguson’s subsequent attempts
to subpoena her were unsuccessful.
On February 13, 2006, Ferguson reappeared for sentencing. At the hearing,
the court received evidence to determine whether the §2K2.1(b)(5) enhancement
applied. Petree testified concerning the controlled buys and the items found in
Ferguson’s bedroom. W hen asked by the district court whether he had anything
to say prior to sentencing, Ferguson stated his attorney was in possession of an
affidavit from his ex-girlfriend stating the drugs belonged to her. If the court
considered this document, he argued it would conclude his firearm possession was
not in connection with any drug offense. The court noted the document was not
introduced as evidence. Thus, there was no evidence before the court supporting
Ferguson’s allegations. Based on Petree’s testimony, the court found a 4 level
increase under §2K2.1(b)(5) was appropriate and sentenced Ferguson to 87
months imprisonment.
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Discussion
Ferguson claims the district court improperly enhanced his sentence under
USSG §2K2.1(b)(1). In deciding “whether the district court properly applied the
Sentencing Guidelines, [we] review[] its legal conclusions de novo and its factual
findings for clear error.” United States v. Fonseca, 473 F.3d 1109, 1112 (10th
Cir. 2007).
Section 2K2.1(b)(1) of the sentencing guidelines provides for a four level
increase in the base offense level “[i]f the defendant used or possessed any
firearm or ammunition in connection with another felony offense.” “The
government must support the ‘in connection with’ element of the enhancement
offense with a preponderance of the evidence.” United States v. Gom ez-
Arrellano, 5 F.3d 464, 466 (10th Cir. 1993). “[A] weapon’s proximity to
narcotics may be sufficient to provide the nexus necessary to enhance a
defendant’s sentence under § 2K2.1(b)(5).” United States v. Bunner, 134 F.3d
1000, 1006 (10th Cir. 1998).
Ferguson complains his possession of the firearm was not in connection
with any other crime or offense. He argues his ex-girlfriend’s affidavit should
have been considered to show the enhancement was not applicable. In essence,
Ferguson argues the district court should have considered an affidavit not in
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evidence. The district court cannot be faulted for such failure. 4 Under Bunner,
Petree’s testimony, which demonstrated the proximity between the drugs and
firearm/ammunition in Ferguson’s bedroom, was sufficient to prove by a
preponderance of the evidence Ferguson used or possessed the firearm and
amm unition in connection with the felony offense of drug possession. The
district court did not err in applying the enhancement. Thus, Ferguson has
identified no non-frivolous issues for us to consider.
W e GRANT counsel’s motion to withdraw and DISM ISS the appeal.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
4
Ferguson’s attorney did not address Ferguson’s claim of an affidavit, either in the
district court or in her Anders brief. The record suggests the ex-girlfriend gave
Ferguson’s attorney some sort of statement, but does not indicate the statement’s
substance. Assuming Ferguson truthfully described the contents of the statement, the
failure to admit it as evidence, if any, lies at the foot of counsel. To the extent Ferguson
may have an arguable claim of ineffective assistance of counsel, such a claim is best
considered on collateral review. United States v. Galloway, 56 F.3d 1239, 1240 (1995)
(en banc).
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