United States v. Derrick Rushing , 676 F. App'x 181 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4406
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK ANTWON RUSHING,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:16-cr-00005-JAB-1)
Submitted: February 2, 2017 Decided: February 9, 2017
Before MOTZ and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Kathleen A. Gleason,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Robert A.
J. Lang, Assistant United States Attorney, Alanna M. Jereb,
Third Year Law Student, Winston-Salem, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Antwon Rushing appeals from the 50-month sentence
imposed following his guilty plea for possession of a firearm by
a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)
(2012). Rushing disputes the district court’s application of a
four-level sentencing enhancement for using or possessing a
firearm in connection with another felony offense —
specifically, felony sale of cocaine. We affirm.
We review the district court’s factual determinations in
applying the Sentencing Guidelines for clear error. United
States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). Where a
defendant “[u]sed or possessed any firearm or ammunition in
connection with another felony offense,” a four-level
enhancement shall apply. U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(6)(B) (2015). The “in connection with” element is
satisfied “if the firearm facilitated, or had the potential of
facilitating” the other offense, or if it “was present for
protection or to embolden the actor.” United States v. Jenkins,
566 F.3d 160, 162 (4th Cir. 2009); see USSG § 2K2.1 cmt.
n.14(A). Where the other felony is a drug trafficking offense,
a firearm “found in close proximity to drugs, drug-manufacturing
materials, or drug paraphernalia . . . necessarily has the
potential of facilitating another felony offense.” Jenkins, 566
F.3d at 163 (internal quotation marks omitted) (citing USSG
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§ 2K2.1 cmt. n.14(B)). This element is not satisfied, however,
where the presence of the firearm is “the result of accident or
coincidence.” United States v. Blount, 337 F.3d 404, 411 (4th
Cir. 2003) (internal quotation marks omitted).
Rushing contends that there is no evidence that the firearm
was used in connection with the sale of cocaine because the
firearm was only discovered two days after his last known drug
sale, and there is no proof that he possessed the firearm at the
residence when drug transactions occurred. Based on the record
before us, however, we conclude that the district court
reasonably inferred that Rushing possessed the firearm in
connection with drug trafficking. The gun was recovered in the
same room as drug paraphernalia and nearby drug residue, and
Rushing admitted that he acquired the gun for personal
protection. See Jenkins, 566 F.3d at 162-63; USSG § 2K2.1 cmt.
n.14(B). Therefore, the district court’s decision to apply the
§ 2K2.1(b)(6)(B) enhancement was not clearly erroneous.
Accordingly, we affirm the district court’s 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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