United States v. Jermaine Whitaker , 633 F. App'x 104 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4142
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAINE WHITAKER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:14-cr-00091-MOC-1)
Submitted: November 24, 2015 Decided: December 23, 2015
Before DUNCAN, KEENAN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ross Hall Richardson, Ann L. Hester, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Jill Westmoreland Rose, Acting United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermaine Whitaker pled guilty, without a plea agreement, to
possession with intent to distribute a mixture and substance
containing a detectable amount of heroin, in violation of 21
U.S.C. § 841(a)(1) (2012), and two counts of possession of
firearms and ammunition by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2012). On appeal, Whitaker challenges the
district court’s application of a four-level enhancement under
U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2014) for
engaging in firearms trafficking. We affirm.
“In assessing whether a district court properly calculated
the Guidelines range, including its 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. Horton, 693 F.3d 463, 474 (4th Cir. 2012)
(alteration and internal quotation marks omitted). “We will
conclude that the ruling of the district court is clearly
erroneous only when, after reviewing all the evidence, we are
left with the definite and firm conviction that a mistake has
been committed.” United States v. Steffen, 741 F.3d 411, 415
(4th Cir. 2013) (internal quotation marks omitted).
To apply an enhancement under USSG § 2K2.1(b)(5), the
district court must find by a preponderance of the evidence that
the defendant engaged in firearms trafficking. USSG
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§ 2K2.1(b)(5); see Steffen, 741 F.3d at 414 (explaining that the
government has the burden of proving applicability of
enhancement by preponderance of evidence). “The commentary to
§ 2K2.1 specifies that the firearm-trafficking enhancement
applies as long as two requirements are satisfied.” United
States v. Pineda, 770 F.3d 313, 321 (4th Cir. 2014), cert.
denied, 135 S. Ct. 1515 (2015). Whitaker does not challenge the
court’s finding that his conduct satisfied the first requirement
— that he “transported, transferred, or otherwise disposed of
two or more firearms to another individual.” USSG § 2K2.1 cmt.
n.13(A)(i). He does, however, contend that the court clearly
erred in finding that he possessed the requisite knowledge to
support the enhancement. Specifically, Whitaker argues that he
neither “knew [n]or had reason to believe that [his] conduct
would result in the transport, transfer, or disposal of a
firearm to an individual . . . who intended to use or dispose of
the firearm unlawfully.” USSG § 2K2.1 cmt. n.13(A)(ii)(II).
We conclude that the district court did not clearly err by
finding that Whitaker possessed the requisite knowledge to
support the enhancement. The preponderance of the evidence
establishes that Whitaker had reason to believe that the
purchasers were drug dealers. See Pineda, 770 F.3d at 322
(upholding enhancement when defendant simultaneously sold
cocaine and firearms “to the CI with the understanding that the
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CI’s intent was to distribute [the cocaine] to others”); United
States v. Pepper, 747 F.3d 520, 525 (8th Cir. 2014) (upholding
enhancement when defendant sold firearms to his drug dealer).
Moreover, the transactions were conducted in a clandestine
fashion, and one of the purchasers planned to sell the firearms
out of state and had no apparent qualms about purchasing
firearms from a convicted felon.
While there was no direct evidence that Whitaker knew that
the purchasers planned to use or dispose of the firearms
unlawfully, we conclude that the court did not clearly err by
inferring from the totality of the circumstances that Whitaker
had reason to believe that the purchasers’ intentions with the
firearms were not lawful. See United States v. Garcia, 635 F.3d
472, 478 (10th Cir. 2011) (providing that court may rely on
common-sense inferences drawn from circumstantial evidence when
determining applicability of a § 2K2.1(b)(5) enhancement).
Accordingly, we affirm the district court’s judgment. 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
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