United States v. Ridley , 381 F. App'x 247 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4076
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERENCE C. RIDLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:08-cr-00043-RGD-FBS-1)
Submitted: October 27, 2009 Decided: June 3, 2010
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Lawrence H. Woodward, Jr., Charles B. Lustig, SHUTTLEWORTH,
RULOFF, SWAIN, HADDAD & MORECOCK, P.C., Virginia Beach,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, D. Monique Broadnax, Special Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terence C. Ridley was convicted by a jury of
possession of firearms and ammunition by a felon, in violation
of 18 U.S.C. § 922(g)(1) (2006). Ridley was sentenced by the
district court to 115 months’ imprisonment. He challenges his
conviction and sentence on appeal.
Appellate counsel contends that the evidence was
insufficient to support Ridley’s conviction under § 922(g)(1).
We will uphold a defendant’s conviction if “there is substantial
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942).
“Substantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Reid, 523 F.3d 310, 317 (4th Cir.) (internal
quotation marks and citation omitted), cert. denied, 129 S. Ct.
663 (2008). “[W]e can reverse a conviction on insufficiency
grounds only when the prosecution’s failure is clear.” United
States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc)
(internal quotation marks and citation omitted).
To prove a violation of 18 U.S.C. § 922(g)(1), the
Government must establish that: (1) the defendant was previously
convicted of a crime punishable by a term of imprisonment
exceeding one year; (2) the defendant knowingly possessed the
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firearms and ammunition; and (3) the possession was in or
affecting commerce. Id. at 395. Counsel does not challenge
elements one and three as Ridley stipulated at trial that he had
a prior qualifying felony conviction and that the firearms and
ammunition had traveled in interstate commerce.
Instead, counsel focuses his argument entirely on the
second element--possession. Section “922(g)(1) does not require
proof of actual or exclusive possession; constructive or joint
possession is sufficient.” United States v. Gallimore, 247 F.3d
134, 136-37 (4th Cir. 2001). “A person has constructive
possession over contraband when he has ownership, dominion, or
control over the contraband itself or over the premises or
vehicle in which it was concealed.” United States v. Armstrong,
187 F.3d 392, 396 (4th Cir. 1999).
Here, testimony established that Ridley committed a
traffic violation and led law enforcement officers on a lengthy
chase prior to stopping. Ridley was the registered owner and
sole occupant of the vehicle he was driving. When officers
searched Ridley, they discovered that he was wearing a ski mask
as a hat and that he was in possession of a suspected narcotic
and a significant amount of cash. A bulletproof vest was also
found inside the passenger compartment. Moreover, a 9mm semi-
automatic pistol and ammunition and a .357 caliber revolver and
ammunition were seized from the vehicle’s trunk. Ridley
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informed officers that he had been robbed earlier that evening
and that he was on his way to retrieve the cash from his
assailants. When considered together, these facts are
sufficient to establish that Ridley constructively possessed the
firearms and ammunition. Consequently, Ridley’s conviction
under § 922(g)(1) is proper.
Counsel also contends that the district court erred in
applying a four-level enhancement under U.S. Sentencing
Guidelines Manual (“USSG”) § 2K2.1(b)(6) (2007). At sentencing,
the district court is initially required to calculate an
appropriate advisory Guidelines range. Gall v. United States,
552 U.S. 38, 49 (2007). The district court “may accept any
undisputed portion of the presentence report as a finding of
fact,” Fed. R. Crim. P. 32(i)(3)(A), and should evaluate the
sentencing factors based on the preponderance of the evidence,
see United States v. Harvey, 532 F.3d 326, 337 (4th Cir. 2008).
When reviewing the district court’s application of the
Sentencing Guidelines, we review findings of fact for clear
error and questions of law de novo. United States v. Llamas, __
F.3d __, 2010 WL 963195, at *4 (4th Cir. March 17, 2010) (No.
09-4045).
Section 2K2.1(b)(6) provides for a four-level
enhancement “[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony offense . . . .”
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USSG § 2K2.1(b)(6). “The purpose of this enhancement is to
ensure that a defendant receives more severe punishment if, in
addition to committing a firearms offense within the scope of
§ 2K2.1, he commits a separate felony offense that is rendered
more dangerous by the presence of a firearm . . . .” United
States v. Blount, 337 F.3d 404, 406 (4th Cir. 2003) (citing
former USSG § 2K2.1(b)(5) (2001)). “‘Another felony offense’,
for purposes of subsection (b)(6), means any federal, state, or
local offense, . . . punishable by imprisonment for a term
exceeding one year, regardless of whether a criminal charge was
brought, or a conviction obtained.” USSG § 2K2.1 cmt. n.14(C).
Moreover, a firearm is used or possessed “in connection with”
another felony offense if it “facilitated, or had the potential
of facilitating,” the offense. Id. cmt. n.14(A).
The district court determined that the enhancement was
warranted based on the officer’s testimony that Ridley had
evinced an intent to “get” the individuals who had robbed him
earlier in the evening. When considered with Ridley’s prior
convictions for assault and murder, the court concluded that
Ridley “doesn’t stand by while somebody does him wrong.”
However, because the burden is on the Government to establish by
a preponderance of the evidence that a sentencing enhancement
should be applied, see United States v. Kiulin, 360 F.3d 456,
460 (4th Cir. 2004), it is a close question whether sufficient
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proof was offered to show that Ridley was on his way to assault
or murder his robbers.
Although the Government contends that the record
supports the district court’s findings of fact, it alternatively
argues that the enhancement is supported by additional facts
presented at sentencing, but not considered by the court. For
example, the Government maintains that the offense of possession
with intent to distribute cocaine base may be inferred from the
quantity of drugs involved, the amount of cash seized, and the
presence of a bulletproof vest and two firearms. However,
because the district court did not adopt this theory as its
rationale to support the enhancement, it may not be considered
by this court. United States v. Carter, 564 F.3d 325, 329-30
(4th Cir. 2009) (“[A]n appellate court may not guess at the
district court’s rationale, searching the record for statements
by the Government or defense counsel or for any other clues that
might explain a sentence.”); see also Llamas, 2010 WL 963195, at
*6 (explaining “adjustment cannot be justified simply because
there might be some evidence in the record--not addressed by the
sentencing court--supporting the [adjustment]”).
The threat that Ridley would “get” his assailants was
vague and officers testified that Ridley was visibly intoxicated
at the scene and remained so intoxicated that an officer chose
not to question Ridley hours later at the police station.
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Therefore, considering only those facts relied on by the
district court, as we must, we conclude that the court’s
application of USSG § 2K2.1(b)(6) was not procedurally
reasonable. Llamas, 2010 WL 963195, at *6.
Accordingly, while we affirm Ridley’s conviction, we
vacate the sentence and remand to the district court for further
proceedings. We, of course, indicate no view as to the
appropriate sentence to be imposed upon Ridley, leaving that
determination, in the first instance, to 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 IN PART,
VACATED IN PART,
AND REMANDED
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