United States v. Samuel McQueen III , 458 F. App'x 257 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4422
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL DAVID MCQUEEN, III,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:10-cr-00275-NCT-1)
Submitted: November 29, 2011 Decided: December 19, 2011
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Gregory Davis,
Senior Litigator, Winston-Salem, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Lisa B. Boggs, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel David McQueen, III, pled guilty to unlawful
possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1) (2006), and received a sentence of 112 months
imprisonment. McQueen appeals his sentence, contending that the
district court erred by applying the cross reference in U.S.
Sentencing Guidelines Manual § 2K2.1(c)(1)(A) (2010), and in
determining the amount of cocaine base (crack) attributable to
him under USSG § 2D1.1. We affirm.
While he was on probation for a prior drug conviction,
McQueen sold crack on three occasions and was arrested. In a
search of his apartment, investigators found a loaded stolen
pistol, small amounts of crack and marijuana, plastic baggies,
and a digital scale. McQueen stated that the firearm was his,
that he had lived in the apartment for two or three months, and
that he sold a quarter-ounce of crack daily while living there.
In the presentence report, the probation officer recommended
application of the cross reference in § 2K2.1(c)(1)(A) because
McQueen possessed the firearm in connection with another offense
— drug trafficking. McQueen’s base offense level was thus
calculated pursuant to § 2X1.1 and § 2D1.1. Because he admitted
selling approximately fifteen ounces of crack (425 grams) in the
preceding two months, the probation officer recommended a base
offense level of 32, and a 2-level increase for possession of a
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firearm during the offense. USSG § 2D1.1(c)(4), (b)(1). With a
3-level adjustment for acceptance of responsibility, McQueen’s
total offense level was 31. He was in criminal history category
III, which resulted in a recommended advisory Guidelines range
of 135-168 months, reduced to 120 months, the statutory maximum
for the § 922(g) offense. See USSG § 5G1.1(a).
McQueen disputed the application of the cross
reference, and further argued that, even if it was applicable,
he should be held responsible for no more than the crack he
possessed on the day he was arrested. At sentencing, McQueen
conceded that an enhancement under § 2K2.1(b)(6) for possession
of the firearm in connection with another felony offense would
be correct in his case. He also conceded that the Guidelines
directed application of the cross reference in subsection (c)(1)
if it yielded a higher offense level, as it did in his case.
The district court applied the cross reference, but
held McQueen responsible for only the quantity he sold during
the month he possessed the firearm. The court recomputed the
base offense level at 30 and the total offense level at 29. The
revised Guidelines range was 108-120 months. After hearing
argument concerning the sentence and considering the 18 U.S.C.
§ 3553(a) (2006) sentencing factors, the court imposed a
sentence of 112 months imprisonment.
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A sentence is reviewed for reasonableness under an
abuse of discretion standard, which requires consideration of
both the procedural and substantive reasonableness of a
sentence. Gall v. United States, 552 U.S. 38, 51 (2007).
Failing to properly calculate the Guidelines range is a
significant procedural error. Id. Generally, we review the
district court’s interpretation of a statute de novo. United
States v. Amaya-Portillo, 423 F.3d 427, 430 (4th Cir. 2005). In
this case, no error occurred in the district court’s application
of the cross reference. Application Note 14(B) to § 2K2.1
states that, when the other offense is a drug offense and the
firearm is found in close proximity to drugs or drug
paraphernalia, “application of subsections (b)(6) and (c)(1) is
warranted because the presence of the firearm has the potential
of facilitating another felony offense or another offense,
respectively.” The firearm was found in a kitchen cabinet where
McQueen kept drugs. McQueen conceded that subsection (b)(6)
applied. The district court correctly applied the cross
reference in subsection (c)(1)(A) because it resulted in a
greater offense level, as directed by the Guidelines commentary.
The district court’s determination of the quantity of
drugs attributable to a defendant is a factual question reviewed
for clear error. United States v. Kiulin, 360 F.3d 456, 461
(4th Cir. 2004). McQueen contends that no evidence was
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presented to the district court from which it could calculate
the quantity of crack he distributed before his arrest. In
fact, the district court relied on McQueen’s statement to the
police after his arrest, in which he stated that he sold one-
quarter ounce of crack per day for two months. When the amount
of drugs seized “does not reflect the scale of the offense, the
court shall approximate the quantity of the controlled
substance.” USSG § 2D1.1 cmt. n.12. To make the determination,
“the court may consider . . . similar transactions in controlled
substances by the defendant[.]” Id. Thus, the court’s
determination that McQueen was responsible for 212.7 grams of
crack was not clearly erroneous.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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