United States v. Coggins ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4015
LEWIS SYDNEY COGGINS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-97-155)
Submitted: January 19, 1999
Decided: February 19, 1999
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
Charles H. Harp, II, HEDRICK, HARP & MICHAEL, Lexington,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Harry L. Hobgood, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Lewis Sydney Coggins, Jr., appeals from the 57-month sentence
imposed upon his guilty plea to possession of an unregistered destruc-
tive device, in violation of 26 U.S.C. §§ 5861(d), 5871 (1994). Cog-
gins claims, first, that the district court erred by imposing a base
offense level of 20 under USSG § 2K2.1(a)(4). See U.S. Sentencing
Guidelines Manual (1997). Coggins also claims that the district court
erred by imposing a two-level enhancement under USSG
§ 2K2.1(b)(4) for possession of stolen firearms and by refusing to
allow a decrease for mitigating role under USSG§ 3B1.2.
In April 1997, Coggins met with Larry Barnhardt and agreed to
store at his (Coggins') residence a cooler filled with explosives, along
with a trash bag containing blasting caps. Barnhardt did not tell Cog-
gins that the explosives had been stolen. In accordance with Barn-
hardt's instructions, Coggins wrapped the smaller explosives with
electrical tape in bundles of five sticks and the larger explosives in
bundles of three sticks. After Barnhardt was arrested, agents of the
Bureau of Alcohol, Tobacco and Firearms searched Coggins' resi-
dence and found the cooler containing a total of forty-eight explosive
cartridges, three fully-assembled destructive devices, and eleven
partially-assembled destructive devices. Coggins was then arrested
and charged with possession of an unregistered destructive device.
The district court assigned a base offense level of 20 under USSG
§ 2K2.1(a)(4)(B) which applies to a "prohibited person," defined as
anyone who:
(i) is under indictment for, or has been convicted of, a
"crime punishable by imprisonment for more than one year,"
as defined by 18 U.S.C. § 921(a)(2); (ii) is a fugitive from
justice; (iii) is an unlawful user of, or is addicted to, any
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controlled substance; (iv) has been adjudicated as a mental
defective or involuntarily committed to a mental institution;
(v) being an alien, is illegally or unlawfully in the United
States; or (vi) is subject to a court order that restrains such
person from harassing, stalking, or threatening an intimate
partner of such person or child of such intimate partner or
person, or engaging in other conduct that would place an
intimate partner in reasonable fear of bodily injury to the
partner or child as defined in 18 U.S.C. § 922(d)(8).
USSG § 2K2.1, comment. (n.6). Coggins did not object at sentencing
and, therefore, we review this claim for plain error. See United States
v. Olano, 507 U.S. 725, 732 (1993). We find, and the Government
concedes, that because Coggins does not fall into any of these catego-
ries, the district court plainly erred by assigning him a base offense
level of 20. Therefore, we vacate Coggins' sentence and remand to
the district court for resentencing as to this claim.
Next, Coggins asserts that the district court improperly increased
his sentence under USSG § 2K2.1(b)(4) because he did not know that
the explosives were stolen. Section 2K2.1(b)(4) provides that a defen-
dant's base offense level is increased by two-levels"[i]f any firearm
was stolen." The commentary to this section clearly states that the
enhancement applies "whether or not the defendant knew or had rea-
son to believe that the firearm was stolen." USSG§ 2K2.1(b)(4),
comment. (n.19). See United States v. Murphy, 96 F.3d 846, 849 (6th
Cir. 1996) (holding that lack of mens rea requirement in USSG
§ 2K2.1(b)(4) does not violate due process).
Finally, Coggins claims that he was entitled to either a four- or
two-level reduction as a minimal participant under USSG § 3B1.2(a).
A minimal role reduction is "intended to cover defendants who are
plainly among the least culpable of those involved in the conduct of
a group." USSG § 3B1.2(a), comment. (n.1). See United States v.
Reavis, 48 F.3d 763, 769 (4th Cir. 1995) ("A defendant is not entitled
to a ``minimal' participant status unless [ ]he has had an extremely
limited role in a criminal enterprise."). The burden is on the defendant
to show by a preponderance of the evidence that he is entitled to an
adjustment in his offense level. See United States v. Gordon, 895 F.2d
932, 935 (4th Cir. 1990). Here, the government proved that Coggins
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was fully aware of Barnhardt's intentions to sell destructive devices
and assembled the explosives according to Barnhardt's instructions.
Coggins took an active role in the crime by storing the devices for
Barnhardt. Therefore, the district court did not err by deciding that the
mitigating role adjustment was unwarranted.
Accordingly, we vacate and remand for resentencing as to Cog-
gins' first claim and affirm his sentence as to his remaining claims.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid in the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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