United States v. Mario Tabron ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4239
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO CHESTER TABRON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:17-cr-00400-CCE-1)
Submitted: November 30, 2018 Decided: December 11, 2018
Before FLOYD and RICHARDSON, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Tiffany T. Jefferson, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, 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Unpublished opinions are not binding precedent in this circuit.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:
Pursuant to a plea agreement, Mario Chester Tabron pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012).
The district court sentenced Tabron to 51 months’ imprisonment, the low end of the
advisory Sentencing Guidelines range. Tabron appeals, challenging the procedural
reasonableness of his sentence. We affirm.
Tabron argues that the district court erroneously calculated his Guidelines range
by applying a four-level enhancement under U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(6)(B) (2016), for using or possessing a firearm in connection with another
felony offense. “[F]ailing to calculate (or improperly calculating) the Guidelines range”
is a significant procedural error. Because Tabron raised this claim of procedural
sentencing error in the district court, “we review for abuse of discretion” and will reverse
upon the finding of abuse “unless we conclude that the error was harmless.” United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).
Section 2K2.1(b)(6)(B) prescribes a four-level enhancement when the defendant
“used or possessed any firearm or ammunition in connection with another felony
offense.” USSG § 2K2.1(b)(6)(B). A firearm is used in connection with another offense
if it “facilitated, or had the potential of facilitating, another felony offense.” USSG
§ 2K2.1 cmt. n.14(A). “The government bears the burden of proving the facts supporting
the enhancement by a preponderance of the evidence.” United States v. Andrews, 808
F.3d 964, 968 (4th Cir. 2015).
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The district court held that Tabron possessed the firearm in connection with the
North Carolina felony of attempted breaking or entering with intent to terrorize. In North
Carolina, “[a]ny person who breaks or enters any building with intent to terrorize or
injure an occupant of the building is guilty of a Class H felony.” N.C. Gen. Stat. § 14-
54(a1) (2017). North Carolina attempted breaking or entering with intent to terrorize is a
Class I felony. N.C. Gen. Stat. § 14-2.5 (2017) (establishing that, generally, attempt to
commit “a felony is punishable under the next lower classification as the offense which
the offender attempted to commit”); N.C. Gen. Stat. § 15A-1340.17 (2017) (providing
minimum and maximum sentences). The breaking element of a breaking or entering
offense may be actual or constructive. State v. Thomas, 514 S.E.2d 486, 505 (N.C.
1999). “A constructive breaking may be accomplished in a number of different ways,
[including by] . . . threatening the occupant with a deadly weapon.” State v. Edwards,
331 S.E.2d 183, 184 (N.C. Ct. App. 1985). Finally, attempt, under North Carolina law,
requires “(1) the intent to commit the substantive offense, and (2) an overt act done for
that purpose which goes beyond mere preparation, but (3) falls short of the completed
offense.” State v. Coble, 527 S.E.2d 45, 46 (N.C. 2000) (internal quotation marks
omitted).
“Sentencing judges may find facts relevant to determining a Guidelines range by a
preponderance of the evidence,” United States v. Cox, 744 F.3d 305, 308 (4th Cir. 2014)
(internal quotation marks omitted), that is, the court must find these facts “more likely
than not” to be true, United States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004). Here, the
Government presented evidence that Tabron drove his car into the yard of a residence and
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parked it straddled across the walkway only steps from the front door. A woman called
911, reported that Tabron was banging on the door, expressed fear that he would kick in
the door, and stated, “Oh, my God. He’s now gone to the car, now getting a gun.” (J.A.
66). * After listening to the 911 audiotape, the district court concluded that the caller was
“quite scared.” (J.A. 70). When the officers arrived on the scene, the 911 caller
explained that Tabron showed up at the residence angry and caused a commotion,
banging on the door and demanding his wallet.
In arguing that the evidence was insufficient to support a finding that he attempted
to constructively break or enter the residence, Tabron emphasizes that none of the
duplex’s residents, including the individual who had called 911, mentioned a gun to the
officers who responded to the scene and they stated that Tabron had not threatened them.
Notably, though, the occupants did not contradict the 911 caller’s statement that Tabron
had a gun—they simply did not mention a gun and therefore did not corroborate the 911
caller’s account of a gun. Furthermore, when the officers arrived on the scene, Tabron
was near his car and had a gun on his person, which was consistent with the caller’s
statement that Tabron returned to his vehicle and retrieved a gun. And although there
were no marks on the door, the 911 caller’s remarks during the 911 call reflected her fear
that Tabron would kick in the door.
We conclude that a preponderance of the evidence supports the district court’s
conclusion that Tabron used or possessed the firearm in connection with another felony
*
“J.A.” refers to the joint appendix filed by the parties in this appeal.
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offense, namely North Carolina constructive breaking or entering with intent to terrorize.
Thus, the sentencing court did not commit procedural error by applying the four-level
enhancement pursuant to USSG § 2K2.1(b)(6)(B).
Accordingly, we affirm the criminal 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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