United States v. Jerry Spencer ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4187
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY TERRELL SPENCER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:17-cr-00321-WO-1)
Submitted: October 30, 2018 Decided: December 6, 2018
Before GREGORY, Chief Judge, RICHARDSON, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
James B. Craven III, Durham, North Carolina, for Appellant. Matthew G.T. Martin,
United States Attorney, K.P. Kennedy Gates, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Terrell Spencer appeals his 60-month sentence after pleading guilty to
possession of a firearm while under a domestic violence protection order, in violation of
18 U.S.C. § 922(g)(8). Spencer argues that the district court erred in applying a two-level
sentencing enhancement for possession of three or more firearms. See U.S. Sentencing
Guidelines Manual § 2K2.1(b)(1) (2016). The district court applied this enhancement by
adding the number of firearms that Spencer unlawfully possessed during two different
domestic violence incidents, one in February and one in June. See USSG § 3D1.2(d).
Spencer contends that grouping these two incidents was improper because the uncharged
February incident was not relevant conduct as required by USSG § 1B1.3, as it was not
part of “the same course of conduct or common scheme or plan as the offense of
conviction.” USSG § 1B1.3(a)(2). Finding no reversible error, we affirm.
“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). Because Spencer “does not contend that the
district court applied the incorrect legal rule, but instead challenges the factual analysis
the district court conducted in applying the relevant conduct Guideline,” our review of
this issue is for clear error. United States v. Pineda, 770 F.3d 313, 319 (4th Cir. 2014)
(internal quotation marks omitted). We conclude that the district court did not clearly err
in grouping together Spencer’s possession of firearms during the two domestic violence
incidents because the incidents constituted the same course of conduct. See USSG
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§ 1B1.3(a)(2) & cmt. n.5(B).
A court can find that offenses qualify as the same course of conduct “if they are
sufficiently connected or related to each other as to warrant the conclusion that they are
part of a single episode, spree, or ongoing series of offenses.” Pineda, 770 F.3d at 319
(quoting USSG § 1B1.3, cmt. n.9(B)). “Significant factors used to determine whether
offenses are part of the same course of conduct include the degree of similarity of the
offenses, the regularity (repetitions) of the offenses, and the time interval between the
offenses.” United States v. Hodge, 354 F.3d 305, 313 (4th Cir. 2004) (internal quotation
marks omitted). The lack of one factor can be remedied by a stronger presence of at least
one of the other factors. Id.
While in this case there was a four-month gap between the two firearm seizures, the
conduct was of identical character: Spencer illegally possessed firearms in both instances.
See Pineda, 770 F.3d at 319 (“[W]e conclude that the district court did not clearly err . . .
[in part because] the transactions have a relatively high degree of similarity.”); cf. United
States v. Hawkins, 776 F.3d 200, 208 (4th Cir. 2015) (“[A]lthough the offenses occurred
nearly six and a half months apart . . . it is an unremarkable example of offenses of the
‘same or similar character’ when the defendant is charged only with multiple violations of
the same statute.”). Moreover, Spencer cannot refute the existence of this same course of
conduct merely by claiming that these two seizures were unrelated. Whether he purchased
the ‘June’ guns after (or even because) the ‘February’ guns were seized, or whether he
already had owned the ‘June’ guns during the February seizure, there is a genuine
connection between the conduct underlying both events.
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Accordingly, we affirm the judgment of the district court. 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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