United States v. Bokman ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4599
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHAWN DANA BOKMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:05-cr-00021-jlk)
Submitted: December 6, 2006 Decided: January 26, 2007
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Edward A. Lustig, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Dana Bokman appeals his convictions and sentence
for possession with intent to distribute hydrocodone, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (2000) (Counts 1, 4, and 9),
possession with intent to distribute alprazolam, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(D) (2000) (Count 5), sale or disposal
of a firearm to a convicted felon, in violation of 18 U.S.C.
§§ 922(d)(1) and 924(a)(2) (2000) (Counts 3, 8, and 11), and
possession or transfer of an unregistered machine gun, in violation
of 18 U.S.C. § 922(o) (2000) (Count 7). We affirm.
Bokman’s first contention is that the district court
erred in denying his motion for judgment of acquittal as to Counts
3, 8, and 11. He asserts the government failed to prove he had
actual knowledge that the purchaser had been convicted of a “crime
punishable by imprisonment for a term exceeding one year,” as
required under § 922(d)(1). Rather, the informant who purchased
the guns stated only that he was a “felon.” Bokman notes that
pursuant to 18 U.S.C. § 921(a)(20) (2000), certain crimes that may
otherwise qualify as felonies do not fall under the realm of
“crimes[s] punishable by imprisonment for a term exceeding one
year,” such as unfair trade practices or antitrust violations.
We review the district court’s denial of a motion for
judgment of acquittal de novo. United States v. United Med. and
Surgical Supply Corp., 989 F.2d 1390, 1401 (4th Cir. 1993). The
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standard of review for a denial of a motion for judgment of
acquittal is “whether there is substantial evidence (direct or
circumstantial) which, taken in the light most favorable to the
prosecution, would warrant a jury finding that the defendant was
guilty beyond a reasonable doubt.” United States v. MacCloskey,
682 F.2d 468, 473 (4th Cir. 1982).
Even if Bokman did not “know” that the informant had been
convicted of a “crime punishable by imprisonment for a term
exceeding one year” based on the informant’s statement that he was
a felon, § 922(d)(1) requires only that a defendant know or “hav[e]
reasonable cause to believe” that the buyer has been convicted of
such a crime. The statements made by the informant during the
firearm transactions fully support the jury’s finding that Bokman
had at least reasonable cause to believe that the informant had
been convicted of a crime punishable by more than one year.
Bokman next argues that the district court erred in
enhancing his offense level under U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2005). Bokman claims that he did not “possess” a
firearm in connection with the drug deals because the guns did not
facilitate the narcotics transactions. Bokman contends that the
mere fact that the transactions were simultaneous does not mean
that the weapons were possessed in connection with the distribution
of the drugs, and that the jury’s acquittal on all 18 U.S.C.
§ 924(c) (2000) charges supports his position.
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On appeal of the sentencing judge’s application of the
guidelines, we review factual determinations under a “clearly
erroneous” standard. United States v. Daughtrey, 874 F.2d 213, 217
(4th Cir. 1989). However, if the issue turns primarily on the
legal interpretation of a guideline term, the standard “moves
closer” to de novo review. Id.Pursuant to USSG § 2D1.1, for an offense involving drugs, a
defendant’s base offense level is increased by two levels if a
dangerous weapon was possessed. This adjustment “should be applied
if the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.” USSG § 2D1.1 comment.
(n.3).
The term “in connection with” is synonymous with “in
relation to”, as that term is used in 18 U.S.C. § 924(c) (2000).
United States v. Blount, 337 F.3d 404, 411 (4th Cir. 2003), citing
United States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001). To
meet the “in relation to” requirement, the Government must prove
that the firearm has “some purpose or effect with respect to the
drug trafficking crime . . . the gun at least must facilitate or
have the potential of facilitating the drug trafficking offense.”
United States v. Lipford, 203 F.3d 259, 266-67 (4th Cir. 2000)
(internal citations and quotations omitted). We have recognized
that in narcotics transactions, a drug purchaser often must
persuade a dealer to sell him drugs through an offer to buy other
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illegal goods, such as firearms. Id. at 267. When guns and drugs
are sold together as part of a singular transaction, the firearms
facilitate the drug transaction by making it possible for the buyer
to convince the seller to take the risks inherent in selling
contraband. Id.We also find unavailing Bokman’s argument that his
acquittal on the firearms charges precluded the court from
considering his sales of firearms for sentencing purposes. Even
after United States v. Booker, 543 U.S. 220 (2005), district courts
may continue to consider acquitted conduct in determining the
appropriate guideline range. United States v. Williams, 399 F.3d
450, 454 (2d Cir. 2005). In this case, there was sufficient
evidence of three distinct transactions involving both firearms and
illegal narcotics. Therefore, the district court properly enhanced
Bokman’s sentence, pursuant to § 2D1.1(b)(1), for possession of a
dangerous weapon during an illegal narcotics transaction.
Accordingly, we affirm Bokman’s conviction and 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
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