United States v. Hairston , 334 F. App'x 589 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4433
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TARANCE LEVAR HAIRSTON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00189-NCT-1)
Submitted: June 18, 2009 Decided: June 22, 2009
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, David P. Folmar, Jr., Angela Hewlett Miller, Michael
A. DeFranco, Assistant United States Attorneys, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tarance Levar Hairston appeals from his 100-month
sentence, imposed pursuant to his guilty plea to possession of a
firearm by a convicted felon. On appeal, Hairston contends that
the district court erred at sentencing in determining that
Hairston’s possession of a semiautomatic firearm thirteen days
prior to the date of the offense of conviction was relevant
conduct. We affirm.
We review a district court’s “relevant conduct”
finding under U.S. Sentencing Guidelines Manual § 1B1.3 (2007)
for clear error. United States v. Hodge, 354 F.3d 305, 315 (4th
Cir. 2004). At sentencing, a district court properly may
consider offenses for which the defendant has not been
convicted, provided they constitute “relevant conduct.” United
States v. Bowman, 926 F.2d 380, 381-82 (4th Cir. 1991).
Relevant conduct includes offenses that are part of the same
course of conduct or common scheme or plan as the offense of
conviction. United States v. McAllister, 272 F.3d 228, 233-34
(4th Cir. 2001).
Here, the undisputed evidence in the presentence
report (“PSR”) was that, on January 3, 2007, the police stopped
a car in which Hairston was a passenger, and he fled. Officers
found two bags of marijuana in the car, as well as a pistol
under Hairston’s seat. On January 16, officers apprehended
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Hairston, who fled, and found a pistol in the area occupied by
Hairston that fit Hairston’s holster. On the basis of these
facts, the district court concluded that Hairston rearmed
himself after the seizure of his firearm used to protect his
marijuana.
While Hairston’s counsel asserted that the second
firearm was obtained after a home invasion in order to protect
Hairston’s family, Hairston presented no evidence at sentencing.
Absent an affirmative showing that the conclusions in the PSR
are incorrect, the district court is free to adopt the findings
therein. See United States v. Terry, 916 F.2d 157, 162 (4th
Cir. 1990). Moreover, based on the evidence in the PSR, the
district court’s conclusions that the two offenses were related
was simply not clear error. See United States v. Brummett, 355
F.3d 343, 345 (5th Cir. 2003) (possession of firearms by
convicted felon on three separate occasions within a nine-month
period was relevant conduct); United States v. Powell, 50 F.3d
94, 104 (1st Cir. 1995) (holding that nearly contemporaneous
possession of firearms is relevant conduct in
felon-in-possession prosecution).
Accordingly, we affirm Hairston’s sentence. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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