United States v. Harris , 429 F. App'x 269 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4923
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROWLAND HARRIS, a/k/a Roland Harris,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:09-cr-00720-JFA-1)
Submitted: April 19, 2011 Decided: May 5, 2011
Before AGEE, KEENAN, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Joshua Snow Kendrick, Columbia, South Carolina, for Appellant.
William N. Nettles, United States Attorney, J.D. Rowell,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rowland Harris appeals from his thirty-month sentence
imposed pursuant to his guilty plea to being a felon in
possession of a firearm. On appeal, he challenges his
enhancement under U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(6) (2009) for use of the firearm in connection with
another felony; namely, possession of a trace amount of cocaine
found in his bedroom. Because we find that the evidence did not
support this enhancement, we vacate and remand for resentencing.
Section 2K2.1(b)(6) provides for a four-level
enhancement if a defendant “used or possessed any firearm or
ammunition in connection with another felony offense.”
Application Note 14(A) to § 2K2.1 states that subsection (b)(6)
applies “if the firearm . . . facilitated, or had the potential
of facilitating, another felony offense . . . .” When reviewing
a sentencing enhancement under the guidelines, “we review the
district court’s factual findings only for clear error, and ‘if
the issue turns primarily on the legal interpretation of the
guidelines, our review is de novo.’” United States v. Carter,
601 F.3d 252, 254 (4th Cir. 2010) (internal citation omitted).
Whether a defendant possessed a firearm in connection with
another felony is a factual question we review for clear error.
United States v. Jenkins, 566 F.3d 160, 163 (4th Cir. 2009)
cert. denied, 130 S. Ct. 330 (2009).
2
The requirements of § 2K2.1(b)(6) are “satisfied if
the firearm had some purpose or effect with respect to the other
offense, including if the firearm was present for protection or
to embolden the actor.” Id. at 162 (internal quotation marks,
citation, and alteration omitted). However, “the requirement is
not satisfied if the firearm was present due to mere accident or
coincidence.” Id. at 163 (internal quotation marks omitted).
Accordingly, the Government was required to prove more than the
mere presence of the firearm. It was required to also prove
that Harris’s possession of the firearm facilitated or had the
tendency to facilitate his possession of cocaine. 1
We find that the evidence does not prove that Harris's
simultaneous possession of firearms and cocaine residue in his
bedroom was anything other than coincidental. The Government’s
contention that Harris used the firearm to protect his cocaine
is unsupported by the record. “Baggies with drug residue
generally are not valuable or useful to drug users and do not
1
This requirement is in contrast to situations where the
felony offense at issue is a “drug trafficking offense” and the
firearm is found in close proximity to drugs, drug-manufacturing
materials, or drug paraphernalia. In such situations, there is
a presumption that a firearm found near drugs or drug dealing
paraphernalia is connected to the drug crime. See U.S.
Sentencing Guidelines Manual § 2K2.1 cmt. n.14(B). In this
case, there is no allegation that Harris was involved in drug
trafficking.
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need protection.” See United States v. Smith, 535 F.3d 883, 885
(8th Cir. 2008).
Although firearms are generally known as “tools of the
trade” for drug dealers, the Government conceded that it had no
evidence that Harris was a drug dealer, and Harris was found
responsible only for an unmeasured quantity of cocaine residue.
Moreover, Harris did not venture out in public with either the
cocaine residue or the firearm; he simply possessed them in his
home. Additionally, the evidence failed to prove a temporal
link between the firearms and a greater amount of cocaine than
just the residue. There is no evidence that Harris used or
possessed a larger amount of cocaine in his home prior to the
day of the search, or if he did, that the firearm was present in
his home at that time.
The Government rests its argument heavily on the fact
that Harris was an addict and needed to protect his drugs from
others in his crime-ridden neighborhood. However, Harris was
not charged with or held responsible for any drugs other than
the cocaine residue found in his bedroom. The Government’s
argument that Harris “was possessing that gun to further his
cocaine habit” is not connected to the evidence in this case.
There is simply no evidence that the firearm was ever in the
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vicinity of an amount of cocaine worthy of protection. 2 See id.
at 885-86 (holding that enhancement was not warranted where only
evidence was that defendant possessed unmeasured quantity of
methamphetamine residue and a firearm in his home); see also
United States v. Jeffries, 587 F.3d 690, 694-95 (5th Cir. 2009)
(holding that enhancement not applicable where only evidence was
defendant’s simultaneous possession of a firearm and a small
amount of crack cocaine in his car).
Accordingly, the district court clearly erred in
determining that Harris’s possession of the firearm was “in
connection with” his possession of cocaine. As such, we vacate
Harris’s sentence and remand for resentencing. 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.
VACATED AND REMANDED
2
The Government, and to some extent the district court,
also relied on the fact that the bedroom had a lock. The
Government also points to the drug dealing near Harris’s home,
as well as his video surveillance system, although the district
court did not explicitly rely on these factors. The
dangerousness of the neighborhood, and Harris’s secure bedroom,
do not shed any further light onto whether Harris would use a
firearm to protect cocaine residue. First, as discussed above,
it seems unlikely that anyone would wish to steal residue, and
second, to the extent the heightened security showed that Harris
likely had larger amounts of cocaine in his home in the past,
there is no evidence that the firearm was there at that point in
time.
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