United States v. Richard Brewington , 685 F. App'x 179 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4244
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD LAWRENCE BREWINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:15-cr-00285-H-1)
Submitted: February 17, 2017 Decided: April 12, 2017
Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Jennifer
P. May-Parker, First Assistant United States Attorney, Phillip
A. Rubin, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Lawrence Brewington appeals his 48-month sentence
for five counts of possession of a firearm by a convicted felon
and aiding and abetting. Brewington argues that the district
court erred in applying a sentencing enhancement for engaging in
the trafficking of firearms. For the reasons that follow, we
vacate the court’s judgment and remand for resentencing.
“In determining whether a district court properly applied
the advisory [Sentencing] Guidelines, including application of
any sentencing enhancements, we review the district court’s
legal conclusions de novo and its factual findings for clear
error.” United States v. Layton, 564 F.3d 330, 334 (4th Cir.
2009). The enhancement for trafficking firearms, U.S.
Sentencing Guidelines Manual § 2K2.1(b)(5) (2015), applies if
two conditions are met. One, the defendant must have
“transported, transferred, or otherwise disposed of two or more
firearms to another individual, or received two or more firearms
with the intent to transport, transfer, or otherwise dispose of
firearms to another individual.” USSG § 2K2.1 cmt. n.13(A)(i).
Two, the defendant must have “[known] or had reason to believe
that such conduct would result in the transport, transfer, or
disposal of a firearm to an individual . . . whose possession or
receipt of the firearm would be unlawful; or . . . who intended
to use or dispose of the firearm unlawfully.” USSG § 2K2.1 cmt.
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n.13(A)(ii). Brewington does not dispute that he transferred
the necessary number of firearms, but he argues that there was
insufficient evidence to satisfy the knowledge requirement.
Having carefully reviewed the record, we agree that the
evidence before the district court was insufficient to
demonstrate that Brewington knew or had reason to believe that
the firearms would be possessed unlawfully, or that their
recipient intended to use or dispose of them unlawfully.
Accordingly, we vacate Brewington’s sentence and remand for
resentencing without application of the firearm trafficking
enhancement. 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.
VACATED AND REMANDED
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