United States v. James Posey , 644 F. App'x 253 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4477
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES DOMINIQUE POSEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00466-WO-1)
Submitted: March 22, 2016 Decided: April 11, 2016
Before MOTZ and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Kathleen A.
Gleason, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Kyle D. Pousson, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Dominique Posey appeals the 108-month sentence
imposed following his guilty plea to possession of a firearm by
a convicted felon, 18 U.S.C. § 922(g)(1) (2012). We conclude
that none of the issues raised on appeal has merit, and we
affirm.
I
Posey premises his first two claims on his theory that two
prior state convictions that factored into the calculation of
his Guidelines range were erroneously treated as felonies.
First, he argues that the district court improperly assigned him
base offense level 24 because he had two prior felony
convictions of either a crime of violence or a controlled
substance offense. See U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(2) (2014). Specifically, Posey contends that the
district court improperly included as one of the two felonies
his 2012 North Carolina state conviction of possession with
intent to sell and deliver marijuana. If Posey is correct, his
base offense level would be 20. See USSG § 2K2.1(a)(4)(A).
In a related claim, Posey contends that he was incorrectly
assessed three criminal history points for both the 2012
marijuana conviction and a 2012 state conviction for felony
possession of cocaine. See USSG §§ 4A1.1(a) (assigning three
criminal history points “for each prior sentence of imprisonment
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exceeding one year and one month”). Under Posey’s theory, he
should have received only two points for each of these
convictions. See USSG § 4A1.1(b) (assigning two points “for
each prior sentence of imprisonment of at least sixty days not
counted in [§ 4A1.1](a)”).
To resolve these claims, we turn to our recent decision in
United States v. Barlow, 811 F.3d 133 (4th Cir. 2015), in which
we addressed the impact of the Justice Reinvestment Act of 2011,
2011 N.C. Sess. Laws 192 (JRA), on the North Carolina Structured
Sentencing Act. “[T]he Structured Sentencing Act and its
statutory tables determine if a crime is punishable by a term of
imprisonment of more than one year.” Id. at 137; see United
States v. Simmons, 649 F.3d 237, 240, 249-50 (4th Cir 2011) (en
banc). The JRA “mandates terms of post-release supervision for
all convicted felons except those serving sentences of life
without parole.” Barlow, 811 F.3d at 137. Posey contends that
because the JRA required his placement on supervision for both
the cocaine and marijuana offenses before he had been imprisoned
for one year, neither offense was a felony. Thus, his proper
base offense level was 20, and he should have received only two
criminal history points for each of these offenses.
We reiterated in Barlow that, in determining whether a
prior term of imprisonment qualifies as a felony, Simmons
requires us to “ask only what term of imprisonment the defendant
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was exposed to for his conviction, not the most likely duration
of his imprisonment.” Id. at 140. We held that “state law
renders post-release supervision part of the term of
imprisonment [and that] each of Barlow’s convictions, for which
he faced a nineteen-month term of imprisonment, qualified as a
felony conviction.” Id.
Posey was sentenced to 8-19 months for the marijuana
conviction and to 6-17 months for the cocaine conviction. Under
Barlow, these were both felony convictions. Thus, we hold that
the district court correctly assigned three criminal history
points for each conviction and properly determined that Posey’s
base offense level was 24.
II
Because Posey used the firearm to facilitate the separate
crime of felony promotion of prostitution, his offense level was
increased under USSG § 2K2.1(b)(6)(B), which provides for a
four-level enhancement if the defendant “used or possessed any
firearm . . . in connection with another felony offense.” The
enhancement is designed “to punish more severely a defendant who
commits a separate felony offense that is rendered more
dangerous by the presence of a firearm.” United States v.
Jenkins, 566 F.3d 160, 164 (4th Cir. 2009) (internal quotation
marks omitted). Posey asserts that the enhancement was not
warranted.
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A firearm is possessed “in connection with” another offense
“if the firearm . . . facilitated, or had the potential of
facilitating, another felony offense.” USSG § 2K2.1 cmt.
n.14(A); see United States v. Blount, 337 F.3d 404, 411 (4th
Cir. 2003). “[T]he firearm must have some purpose or effect
with respect to the crime; its presence or involvement cannot be
the result of accident or coincidence.” United States v.
Hampton, 628 F.3d 654, 663 (4th Cir. 2010) (alteration and
internal quotation marks omitted).
Here, officers discovered Posey in a car parked just
outside a hotel room whose occupant had reported a disturbance.
Officers observed Posey retrieve something from under the
driver’s seat and then heard a metallic sound on the pavement,
where Posey had bent over. Officers discovered a loaded handgun
under the driver’s side of the vehicle. Posey’s girlfriend told
police that Posey had taken her to the hotel to engage in
prostitution with the occupant of the room. Posey admitted to
officers following his arrest that he had gone to get the gun
after he left the woman in the hotel room with the customer. We
hold that the district court did not err in finding that the
firearm facilitated, or had the potential to facilitate, the
offense of promoting prostitution. The firearm would have
encouraged the payment of money owed and provided protection to
Posey.
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III
We therefore affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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