United States v. Crosson ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4200
FRANK WILLIS CROSSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., District Judge.
(CR-97-220)
Submitted: November 30, 1998
Decided: December 21, 1998
Before NIEMEYER and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assis-
tant Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Frank Willis Crosson pled guilty to conspiracy to possess cocaine
powder with intent to manufacture crack and to distribute cocaine
base (crack), 21 U.S.C. § 846 (1994), and received a sentence of 262
months imprisonment. He challenges his sentence, alleging that the
district court erred in imposing a two-level enhancement for posses-
sion of firearms during the offense, see U.S. Sentencing Guidelines
Manual § 2D1.1(b)(1) (1997), or alternatively, erred in assigning one
criminal history point for a prior misdemeanor child abuse sentence
based on his possession of the same loaded firearms and ammunition
in his home. Crosson argues that the prior conviction was for conduct
which was part of the instant offense. See USSG § 4A1.2(a)(1). Find-
ing no error, we affirm.
Around the beginning of 1996, Crosson and Anthony Maldonado
began obtaining cocaine powder in New York and transporting it to
Durham, North Carolina, where they cooked the powder into crack
and distributed it. On February 5, 1997, local authorities arrested
Crosson on drug charges. During a search of his apartment, police
discovered a loaded SKS rifle standing in the corner of the living
room. Another loaded assault rifle and a 9 mm pistol were lying on
top of separate entertainment centers, and a duffle bag containing
over 100 rounds of ammunition was in the middle of the room. Cros-
son's two-year-old son was walking around the room when the police
entered. The state drug charges were dismissed (apparently to allow
a federal investigation to continue), but Crosson was convicted of
misdemeanor child abuse. He received a suspended sentence of thirty
days imprisonment and twelve months probation.
In the next month or so, Crosson and Maldonado found a new
source for cocaine in Miami, Florida, and continued to bring substan-
tial quantities of cocaine to North Carolina. In July 1997, Crosson
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was again arrested on state drug charges. Federal charges quickly fol-
lowed. Crosson pled guilty to a conspiracy with Maldonado and oth-
ers beginning in April 1997 and extending to September 1997.
After Crosson's guilty plea, the probation officer recommended
both an enhancement for possession of firearms during the offense
pursuant to USSG § 2D1.1(b)(1) and one criminal history point for
the misdemeanor child abuse sentence. See USSG § 4A1.1(c). Cros-
son objected that the enhancement and the criminal history point were
based on the same conduct. Under USSG § 4A1.2(a)(1), for purposes
of computing criminal history, a "prior sentence" is a sentence for
conduct that is not part of the instant offense. Application Note 1
explains that conduct that is part of the instant offense is conduct that
is relevant conduct under USSG § 1B1.3. However, the district court
found that the child abuse conviction was for distinct conduct which
was not taken into account by the enhancement for possession of fire-
arms during the crack conspiracy.
On appeal as in the district court, Crosson relies on United States
v. McManus, 23 F.3d 878, 888 (4th Cir. 1994), in which we followed
United States v. Beddow, 957 F.2d 1330, 1338 (6th Cir. 1992), hold-
ing that "the appropriate inquiry [must be] whether the ``prior sen-
tence' and the present sentence involve conduct that is severable into
two distinct offenses. This is necessarily a fact-specific inquiry that
involves more than just a consideration of the elements of the two
offenses." (internal quotation omitted). Beddow, in turn, distinguished
the crime of carrying a concealed weapon from a related money laun-
dering offense because each crime harmed different societal interests.
Here, the danger to a small child posed by the presence of loaded
weapons within his reach is distinct from the danger to society result-
ing from the distribution of unlawful controlled substances. The dis-
trict court did not err in finding that the harm punished by the
sentence for misdemeanor child abuse was not accounted for in com-
puting Crosson's offense level for the instant offense. Consequently,
we find that the district court did not err in making the enhancement
under USSG § 2D1.1(b)(1) and also assigning a criminal history point
for the prior child abuse sentence.
The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
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in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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