United States v. Timothy Younger , 476 F. App'x 509 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2697
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UNITED STATES OF AMERICA
v.
TIMOTHY YOUNGER,
also known as Tim Younger,
also known as Little Tim,
also known as Jahmar Younger,
also known as Marvin Young,
also known as Marvin Younger,
Timothy Younger,
Appellant
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Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 2-07-cr-00261-001)
District Judge: Honorable Gustave Diamond
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Submitted Under Third Circuit LAR 34.1(a)
March 23, 2012
Before: RENDELL, FISHER and CHAGARES, Circuit Judges
(Opinion Filed: March 30, 2012)
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Defendant Timothy Younger appeals his conviction and sentence for possession of
a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The only issue
Younger raises on appeal is whether the District Court properly applied a sentencing
enhancement pursuant to § 2K2.1(b)(6) of the Sentencing Guidelines for possession of a
firearm in connection with another felony offense. For the following reasons, we will
affirm.
Younger was stopped by Pittsburgh police officers on June 21, 2007 for operating
a motor vehicle with an expired registration. Police officers found a loaded Ruger nine
millimeter handgun, nine ecstasy pills, a digital scale, and $5,965 in cash in Younger’s
possession. The police arrested Younger. Having previously been convicted of a felony
in 2003, a grand jury charged Younger with two counts of violating § 922(g)(1). 1
Younger pled guilty, and was sentenced on May 26, 2009 to fifty-seven months’
imprisonment and three years’ supervised release. 2
Younger objected to the District Court’s application of the sentencing
enhancement pursuant to § 2K2.1(b)(6) of the Guidelines. That enhancement calls for a
1
One count stemmed from this instance of possession, and the other count stemmed from
Younger’s possession of a firearm on January 11, 2007.
2
Younger’s sentence was calculated as follows: the District Court started with a base
offense level of twenty under § 2K2.1(a)(4)(B). Then, the District Court applied the
four-level enhancement pursuant to § 2K2.1(b)(6) for possession of a firearm in
connection with another felony offense. The District Court applied a three-level
reduction for acceptance of responsibility pursuant to § 3E1.1. With an adjusted offense
level of twenty-one and a criminal history placing him in Category IV, the Guidelines
sentencing range was fifty-seven to seventy-one months.
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four-level increase in the offense level “if the defendant used or possessed any firearm or
ammunition in connection with another felony offense.” The enhancement is warranted
“in the case of a drug trafficking offense in which a firearm is found in close proximity to
drugs, drug-manufacturing materials, or drug paraphernalia . . . because the presence of
the firearm has the potential of facilitating another felony offense.” § 2K2.1(b)(6) cmt. n.
14(B). We have noted that a district court “is permitted to presume that a firearm in
relatively close proximity to drugs is used ‘in connection’ with [a drug trafficking]
offense.” United States v. West, 643 F.3d 102, 114 (3d Cir. 2011). We review the
District Court’s factual findings supporting application of the enhancement for clear
error. United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc).
Younger argues that the Government did not prove by a preponderance of the
evidence that he was involved in a drug trafficking offense when he was stopped and
arrested. At the sentencing hearing, the Government introduced the police report
regarding Younger’s arrest, which, like the presentence report, indicated that Younger
possessed the firearm, the digital scale, nine ecstasy pills packaged in a clear baggie, and
$5,695 in United States currency. The firearm, ecstasy pills, digital scale, and $1,695
were found in or on the center console of the car; the remaining $4,000 was found in the
glove compartment. To counter this evidence, Younger testified that he used ecstasy
personally, and that he possessed a digital scale because he weighed marijuana that he
purchased for personal use to ensure that he was not shorted. He also argued that the
presence of only nine ecstasy pills is evidence of personal drug use, not distribution. To
counter the reasonable inference that the $5,695 in cash was evidence of drug trafficking,
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his mother testified that she often gave Younger large sums of money; likewise, his wife
testified that Younger took out a large amount of cash from a safe at their home on June
21, 2007 in order to purchase a car for her that day. Younger argues that this evidence,
taken together, establishes that he was not involved in any drug trafficking offense.
We conclude that the District Court did not clearly err in determining that
Younger’s possession of the handgun was in connection with a felony drug trafficking
offense. Younger’s possession of the ecstasy pills, the digital scale, and the large amount
of cash is evidence of his involvement in a drug trafficking offense. As the fact-finder,
the District Court was entitled to credit that evidence over Younger’s testimony and the
testimony of his mother and wife. Moreover, the fact that the firearm was found in close
proximity to the drugs and the digital scale supports application of the enhancement. See
2K2.1(b)(6) cmt. n. 14(B); West, 643 F.3d at 114.
Therefore, we will affirm the judgment of the District Court.
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