United States v. Levern Woods , 594 F. App'x 802 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4945
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEVERN TAMORYO WOODS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:12-cr-00572-RBH-1)
Submitted: November 18, 2014 Decided: December 17, 2014
Before AGEE, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Leslie T. Sarji, SARJI LAW FIRM, LLC, Charleston, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Alfred W. Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Levern Tamoryo Woods pleaded guilty to being a felon in
possession of a firearm under 18 U.S.C. § 922(g)(1). At
sentencing, the district judge applied a four-level enhancement
under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in
connection with another felony offense. On appeal, Woods
challenges the application of this enhancement. We affirm.
I.
On December 17, 2011, police officers went to a bar in
Myrtle Beach, South Carolina, acting on a tip that a customer
had a firearm. When officers arrived, Appellant–Defendant
Levern Woods and a friend were exiting the bar. Woods--who had
been convicted of two felony offenses--fit the description of
the reported individual. Therefore, the police searched Woods
and found a loaded 9 mm Beretta in the waistband of Woods’s
pants. Officers also found 1.75 grams of crack cocaine and 2
grams of powder cocaine in the cuff of Woods’s pants leg.
In July 2012, a grand jury returned an indictment. A year
later, Woods pleaded guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
In December 2013, the United States Probation Office filed
Woods’s presentence investigation report (PSR) with the district
court. Woods’s sole objection was to Paragraph 38 of the PSR,
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which increased Woods’s offense level by four points under
U.S.S.G. § 2K2.1(b)(6)(B) because “the defendant used or
possessed [a] firearm or ammunition in connection with another
felony offense, namely Possession With Intent to Distribute
Crack Cocaine and Possession With Intent to Distribute Cocaine.”
J.A. 87. Woods argued that the enhancement should not apply
because “[t]he government cannot show that the gun was possessed
in connection with another felony” offense. J.A. 95.
The district judge overruled Woods’s objection and applied
the enhancement, reasoning that the loaded firearm “certainly
facilitated or had the potential of facilitating another felony
offense” based on both the firearm and cocaine being in Woods’s
pants while Woods was in public at a bar. J.A. 45. Woods
appeals this determination.
II.
When a district court makes factual findings in support of
applying the “in-furtherance” enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B), we review for clear error. United States v.
Battle, 499 F.3d 315, 322-23 (4th Cir. 2007).
III.
Section 2K2.1(b)(6)(B) provides for a four-level increase
to a defendant’s offense level if a judge finds by a
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preponderance of the evidence that the defendant “[u]sed or
possessed any firearm or ammunition in connection with another
felony offense.” 1 The enhancement’s purpose 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)
(quoting United States v. Blount, 337 F.3d 404, 406 (4th Cir.
2003)). The Guidelines Commentary clarifies that the
enhancement applies if “the firearm or ammunition facilitated,
or had the potential of facilitating, another felony offense.” 2
U.S.S.G. § 2K2.1(b)(6)(B) cmt. n.14(A). Facilitation is
established 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.” Jenkins, 566
F.3d at 162 (brackets, citations, and internal quotation marks
omitted). Facilitation is not shown, however, “if the firearm
1
The parties do not dispute that the “other” offense at
issue--possession of cocaine with intent to distribute--is a
qualifying felony.
2
The Guidelines Commentary also says that the enhancement
applies “in the case of a drug trafficking offense in which a
firearm is found in close proximity to drugs.” U.S.S.G.
§ 2K2.1(b)(6)(B) cmt. n.14(B). Although this case arguably
presents such a context, the district judge did not rely on this
application note, and we need not decide whether it applies
here.
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was present due to mere ‘accident or coincidence.’” Id. at 163
(quoting Blount, 337 F.3d at 411).
The primary dispute between the parties is whether our
decision in United States v. Jenkins controls. In that case, a
bystander reported to law enforcement around midnight that a
person had been firing a weapon in downtown Charleston, South
Carolina. Id. at 161. When police arrived to the scene, they
found the defendant, who matched the reported description of the
person with the weapon. Id. Officers found a loaded revolver
and 0.29 grams of crack cocaine on the person. Id. On appeal,
the Court reasoned that there was no clear error in applying a
four-level enhancement under § 2K2.1(b)(6)(B) because the loaded
revolver was “accessible and ready for use,” which suggested
that it was “present for protection or to embolden” the
defendant. Id. at 164 (quoting United States v. Lipford, 203
F.3d 259, 266 (4th Cir. 2000)).
The court in Jenkins also reasoned that the environment
provided a “heightened need for protection” because the
defendant possessed cocaine on a public street at night, “near
where a gun had recently been fired.” Id. Woods attempts to
use this reasoning to distinguish Jenkins. He argues that it
was clear error for the district court to conclude that his
possession of the handgun facilitated or had the potential to
facilitate his possession of cocaine based on mere proximity of
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the contraband because there were no facts suggesting that Woods
or anyone else had recently fired a gun.
Woods’s argument requires an unduly narrow reading of our
decision in Jenkins. We have repeatedly held, as have our
sister circuits, that possessing a firearm may give a sense of
security that emboldens a person to venture from his or her home
with valued drugs that another person might want to steal.
E.g., United States v. Justice, 679 F.3d 1251, 1255 (10th Cir.
2012) (collecting cases from the Third, Fourth, Fifth, Sixth,
and Eighth Circuits). Thus, it was reasonable to conclude that
the simultaneous possession of cocaine and a loaded handgun in
public during a night of drinking was not a mere accident or
coincidence, but instead provides a sufficient evidentiary basis
to apply § 2K2.1(b)(6)(B). See United States v. Maddox, 440 F.
App’x 219, 220 (4th Cir. 2011) (per curiam) (affirming
application of the enhancement when a firearm and crack cocaine
were found at the defendant’s feet on his vehicle’s floorboard).
Accordingly, Woods’s sentence is affirmed. 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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