United States v. Markus Harris ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4554
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARKUS MAURICE HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:12-cr-00381-BO-1)
Submitted: February 27, 2014 Decided: March 12, 2014
Before MOTZ, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Markus Maurice Harris appeals the 115-month sentence
imposed following his guilty plea to possession of a firearm and
ammunition as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2012). On appeal, Harris challenges only the
district court’s application of a four-level Guidelines
enhancement for possession of a firearm in connection with
another felony offense, pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) § 2K2.1(b)(6)(B) (2012). For the reasons that
follow, we affirm.
In considering whether a district court properly
imposed a Guidelines enhancement, we review factual findings for
clear error and legal determinations de novo. United States v.
Chandia, 675 F.3d 329, 337 (4th Cir. 2012). We will find a
court’s factual finding clearly erroneous only “if we are left
with the definite and firm conviction that a mistake has been
committed.” United States v. Crawford, 734 F.3d 339, 342 (4th
Cir. 2013) (quotation marks omitted). “Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” Anderson v. City of
Bessemer City, 470 U.S. 564, 574 (1985).
An enhancement under USSG § 2K2.1(b)(6)(B) is
appropriate when a firearm or ammunition possessed by a
defendant “facilitated, or had the potential of facilitating,
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another felony offense.” USSG § 2K2.1 cmt. n.14(A). “Another
felony offense” is defined as “any federal, state, or local
offense . . . punishable by imprisonment for a term exceeding
one year, regardless of whether a criminal charge was brought,
or a conviction obtained.” USSG § 2K2.1 cmt. n.14(C). The
purpose of Section 2K2.1(b)(6) is “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) (quotation marks
omitted).
The requirement that the firearm be possessed “in
connection with” another felony “is satisfied if the firearm had
some purpose or effect with respect to the other offense,
including if the firearm was present for protection or to
embolden the actor.” United States v. McKenzie-Gude, 671 F.3d
452, 464 (4th Cir. 2011) (quotation marks omitted). However,
“the requirement is not satisfied if the firearm was present due
to mere accident or coincidence.” Jenkins, 566 F.3d at 163(quotation marks omitted). The Guidelines commentary
specifically provides that a defendant possesses a firearm in
connection with another felony “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
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potential of facilitating [that drug-trafficking] felony
offense.” USSG § 2K2.1 cmt. n.14(B). The Government bears the
burden of establishing the propriety of a Guidelines enhancement
by a preponderance of the evidence. United States v. Blauvelt,
638 F.3d 281, 293 (4th Cir. 2011).
The district court imposed the enhancement after
finding that Harris possessed the firearm in connection with a
drug trafficking offense. On appeal, Harris argues that the
Government failed to meet its burden to establish the requisite
connection between the drugs and the firearm. We have
thoroughly reviewed the record and conclude that the trial
court’s finding was not clearly erroneous. The gun was found on
the driver’s side floorboard of the vehicle Harris had been in
immediately prior to his arrest, and was thus easily accessible
to Harris, who had been in the front passenger seat. Further, a
large amount of cash was found on Harris’ person, and Harris
conceded ownership of the gun and what the court determined was
a “distribution” amount of marijuana. The marijuana was held in
the same bag as a digital scale. This evidence supported the
court’s finding that Harris was engaged in marijuana
trafficking. See, e.g., United States v. Collins, 412 F.3d 515,
519 (4th Cir. 2005) (listing factors from which to infer intent
to distribute, including “the quantity of the drugs,” “the
packaging,” “where the drugs are hidden,” and “the amount of
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cash seized with the drugs”); United States v. Carrasco, 257
F.3d 1045, 1048 (9th Cir. 2001) (recognizing that “scales are
well-known tools for the packaging and sale of drugs,” and
collecting cases).
The fact that the firearm was accessible to Harris
while he possessed the marijuana in the vehicle, and the fact
that the cash and the ammunition were both found on Harris’
person at the time of his arrest, suggest a connection between
the drugs and the firearm’s purpose. See United States v.
Blount, 337 F.3d 404, 411 (4th Cir. 2003) (noting relevance of
gun’s accessibility to finding it facilitated another offense).
When viewed in light of Harris’ concomitant possession of
distribution paraphernalia, the evidence supported the finding
that the presence of the firearm in proximity to the drugs was
more than “mere accident or coincidence,” see Jenkins, 566 F.3d
at 163 (quotation marks omitted), but rather was used to
embolden or protect Harris’ drug trafficking. Because the
record was adequate to support a finding that Harris possessed
the firearm in connection with a felony drug offense, we
conclude the district court did not err in imposing the
enhancement.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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