United States v. Jerome Green , 606 F. App'x 720 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4412
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEROME GREEN, a/k/a JR,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:13-cr-00042-MOC-3)
Submitted: February 27, 2015 Decided: April 22, 2015
Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Steven Meier, MEIER LAW, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerome Green appeals his conviction and 57-month sentence
imposed following his guilty plea to possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012).
On appeal, Green’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
the district court erred in imposing a four-level enhancement
under U.S.S.G. § 2K2.1(b)(6)(B). Green’s supplemental pro se
brief similarly challenges the imposition of the U.S.S.G.
§ 2K2.1(b)(6)(B) enhancement. The Government has declined to
file a response brief. Following our careful review of the
record, we affirm.
In reviewing Sentencing Guidelines calculations, we review
the district court’s factual findings for clear error and its
legal conclusions de novo. United States v. Cox, 744 F.3d 305,
308 (4th Cir. 2014). Clear error occurs only when, “on the
entire evidence,” we are “left with the definite and firm
conviction that a mistake has been committed.” Id. (internal
quotation marks omitted). The Government bears the burden of
proving by a preponderance of the evidence that the court should
apply a Guidelines enhancement. United States v. Blauvelt, 638
F.3d 281, 293 (4th Cir. 2011).
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The Guidelines provide for a four-level upward adjustment
if the defendant “used or possessed any firearm or ammunition in
connection with another felony offense,” U.S.S.G.
§ 2K2.1(b)(6)(B). The enhancement applies where “the firearm or
ammunition facilitated, or had the potential of facilitating,
another felony offense.” U.S.S.G. § 2K2.1 cmt. n.14(A). The
purpose of a U.S.S.G. § 2K2.1(b)(6) enhancement 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)
(internal quotation marks omitted).
The requirement that a 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, 463-64
(4th Cir. 2011) (internal quotation marks omitted). This
requirement is not satisfied, however, where “the firearm was
present due to mere accident or coincidence.” Jenkins, 566 F.3d
at 163 (internal quotation marks omitted). The Guidelines
specifically provide that the enhancement should be applied “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.” U.S.S.G. § 2K2.1 cmt. n.14(B).
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Here, the district court found that Green possessed the
firearm in connection with the offense of possession with intent
to distribute marijuana. Green and his codefendants were
apprehended in a vehicle containing a backpack with 150.8 grams
of marijuana, both loose and packaged into smaller units
consistent with the intent to sell. Although it was on the
driver-side floorboard, the backpack was in close proximity to
Green, the front passenger. Two sets of digital scales and a
large amount of cash in small denominations were located in the
center console, accessible to all three occupants. All three
occupants had firearms concealed within the car, positioned so
as to be easily available. These facts are consistent with a
finding that the occupants of the vehicle jointly possessed the
marijuana with intent to distribute and used the firearms in
connection with that trafficking offense. See United States v.
Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (describing factors to
consider in determining whether a firearm furthered or advanced
drug trafficking); United States v. Burgos, 94 F.3d 849, 873
(4th Cir. 1996) (en banc) (describing possession in drug
trafficking context).
While Green asserts that the evidence was insufficient to
support a finding that he knew the marijuana was in the vehicle,
the record contains sufficient circumstantial evidence to
support the district court’s finding. Because the court’s
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finding was not clearly erroneous, we find no error in the
court’s imposition of the enhancement.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Green’s conviction and sentence. This court
requires that counsel inform Green, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Green requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Green.
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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