United States v. Murry ( 2004 )

Rehearing granted, June 2, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4035
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL BERNARD MURRY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-03-128)
Submitted: May 26, 2004 Decided: October 4, 2004
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, Stephanie L.
Haines, Assistant United States Attorney, Huntington, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Bernard Murry pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (2000). The district court sentenced
him to sixty-five months in prison. Murry appeals his sentence,
challenging the district court’s decision to enhance his sentence
under U.S. Sentencing Guidelines Manual § 2K2.1(b)(1)(A) (2002), on
the ground that he possessed a firearm in connection with another
felony offense. We affirm.
Murry, a convicted felon, was a passenger in a car that
police officers stopped for reckless driving. Officers found a
pistol in a case under Murry’s seat. In addition, Murry possessed
a distributable quantity of cocaine base. Murry objected to the
probation officer’s recommendation for a four-level enhancement
because Murry possessed a firearm in connection with another felony
offense, namely possession with intent to distribute cocaine base.
He contended that there was insufficient evidence that the firearm
and the drug offense were related. On appeal, he challenges the
district court’s application of the enhancement.
Section 2K2.1(b)(5) provides for a defendant’s offense
level to be enhanced by four levels if he used or possessed a
firearm “in connection with another felony offense.” The
government bears the burden of proving the necessary facts by a
preponderance of the evidence, and we “review the district court’s
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findings of fact for clear error, giving due deference to the
district court’s application of the Guidelines to the facts.”
United States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001).
In this Circuit, “in connection with” is treated as
analogous to “in relation to,” as used in 18 U.S.C. § 924(c)
(2000). United States v. Blount, 337 F.3d 404, 411 (4th Cir.
2003). In other words, the firearm must facilitate or have the
tendency to facilitate another offense. Id. at 411 (citing
Garnett, 243 F.3d at 829). “‘[T]he firearm must have some purpose
or effect with respect to the . . . crime; its presence or
involvement cannot be the result of accident or coincidence.’” Id.(quoting Smith v. United States, 508 U.S. 223, 238 (1993))
(modification in original). However, the government has met its
burden of establishing that the firearm was used or possessed in
connection with another felony if it shows that the gun was
“present for protection or to embolden the actor.” United
States v. Lipford, 203 F.3d 259, 266 (4th Cir. 2000) (citation
omitted).
Here, Murry was traveling in a car with a distributable
quantity of cocaine base on his person and a firearm he admitted
was his within his reach under his seat. Under the facts of this
case, we find that the district court did not clearly err in
determining that the enhancement applied.
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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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