United States v. Martin ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4982
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENDALL LESHAWN MARTIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-02-216-V)
Submitted: February 3, 2006 Decided: March 10, 2006
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lucky T. Osho, Charlotte, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, C. Nicks Williams, Amy E.
Ray, Assistant United States Attorneys, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kendall LeShawn Martin pled guilty to one count of
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g) (2000). In this direct appeal, Martin asserts two
challenges to his sentencing. Finding no merit to his claims, we
affirm.
The district court sentenced Martin under the mandatory
federal Sentencing Guidelines and established a base offense level
of 24. The court enhanced Martin’s base offense level by two
levels under U.S. Sentencing Guidelines Manual § 2K2.1(b)(4)
(2004), because the gun involved in the crime was stolen. In
addition, the court imposed a four-level enhancement under USSG
§ 2K2.1(b)(5) based on its finding that Martin possessed the
firearm in connection with another felony offense. Finally, the
court applied a three-level downward adjustment for acceptance of
responsibility under USSG § 3E1.1(a) and (b), yielding a total
offense level of 27. Martin’s criminal history score category was
VI, resulting in a guideline range of 130 to 162 months in prison.
USSG Ch. 5, Pt. A (Sentencing Table). The district court sentenced
Martin to 120 months in prison, the statutory maximum sentence
under 18 U.S.C. § 924(a)(2) (2000). USSG § 5G1.1(c)(1).
Martin first argues that the USSG § 2K2.1(b)(4) and (5)
enhancements violated his constitutional rights because they
increased his sentence based on facts that were not charged in the
indictment and were neither admitted by Martin nor proven beyond a
reasonable doubt. Martin preserved these issues by objecting at
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sentencing based upon Blakely v. Washington, 542 U.S. 296 (2004).
United States v. Rodriguez, F.3d , , 2006 WL 9602, at *3
(4th Cir. Jan. 3, 2006). When a defendant preserves a Sixth
Amendment error, “we must reverse unless we find this
constitutional error harmless beyond a reasonable doubt, with the
Government bearing the burden of proving harmlessness.” United
States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (citations
omitted); see United States v. White, 405 F.3d 208, 223 (4th Cir.)
(discussing difference in burden of proving that error affected
substantial rights under harmless error standard in Fed. R. Crim.
P. 52(a), and plain error standard in Fed. R. Crim. P. 52(b)),
cert. denied, 126 S. Ct. 668 (2005).
In United States v. Booker, the Supreme Court held that
the mandatory manner in which the federal Sentencing Guidelines
required courts to impose sentencing enhancements based on facts
found by the court by a preponderance of the evidence violated the
Sixth Amendment. 543 U.S. 220, ___, 125 S. Ct. 738, 746, 750
(2005). Post-Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), and impose a sentence. If a court
imposes a sentence outside the guideline range, it must state its
reasons for doing so. United States v. Hughes, 401 F.3d 540, 546
(4th Cir. 2005).
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Excluding the enhancements and without the reduction
Martin received for acceptance of responsibility,* Martin’s offense
level would have been twenty-four and, thus, his guideline range
would have been 100 to 125 months of imprisonment. USSG Ch. 5, Pt.
A (Sentencing Table). Because the 120-month sentence Martin
received is within that guideline range, we find no Sixth Amendment
error. United States v. Evans, 416 F.3d 298, 300-01 (4th Cir.
2005).
Outside the Booker context, Martin also asserts that the
district court erred in applying the four-level enhancement under
USSG § 2K2.1(b)(5) for using or possessing a firearm “in connection
with another felony offense.” Application of this enhancement
encompasses two requirements: (1) that the defendant committed
“another felony” and (2) that he possessed the firearm “in
connection with” the other felony. United States v. Blount, 337
F.3d 404, 406-07 (4th Cir. 2003). We find that, under the facts of
this case, the district court committed no reversible error in
applying this enhancement.
For these reasons, we affirm Martin’s sentence. 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
*
See United States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir.
2005).
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