United States v. Shore , 193 F. App'x 190 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4197
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHAD RAYNARD SHORE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:05-cr-00208-WLO)
Submitted: July 25, 2006 Decided: August 1, 2006
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Robert Albert Jamison Lang, OFFICE OF THE UNITED STATES
ATTORNEY, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Chad Raynard Shore appeals his 120-month sentence
following his guilty plea to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g) (2000). Shore’s
counsel has submitted a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting there exist no meritorious issues for
appeal, but requesting that this court review the application of
sentencing enhancements pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) §§ 2K2.1(b)(4), (b)(5) (2005), as well as the
reasonableness of the sentence imposed by the district court.
After being notified of his right to do so, Shore submitted a pro
se supplemental brief, in which he reiterates the contentions made
in the Anders brief.*
To give due deference to a district court’s application
of the sentencing guidelines, we review factual determinations for
clear error and legal questions de novo. United States v. Blake,
81 F.3d 498, 503 (4th Cir. 1996). Shore’s challenge to the
application of the two-level offense level enhancement under USSG
§ 2K2.1(b)(4) is meritless, as that provision applies even if Shore
*
To the extent Shore intends to allege ineffective assistance
of counsel, we decline to consider this claim on direct appeal, as
the record does not conclusively establish that counsel was
ineffective. See United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999). This claim is more properly raised in a motion
under 28 U.S.C. § 2255 (2000). See United States v. King, 119 F.3d
290, 295 (4th Cir. 1997).
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was unaware the firearm he pled guilty to possessing was stolen.
See USSG § 2K2.1, comment. (n.16).
Shore’s challenge to the USSG § 2K2.1(b)(5) enhancement
is also unavailing. The government must first prove that the
defendant possessed the gun, and then prove that the gun was
connected to another felony offense. United States v. Nale, 101
F.3d 1000, 1003-04 (4th Cir. 1996). To satisfy the “in connection
with” requirement, the government must prove that the firearm had
“some purpose or effect with respect to” the felony, and that the
gun at least facilitated, or had the potential of facilitating, the
offense. See United States v. Lipford, 203 F.3d 259, 266 (4th Cir.
2000) (internal quotation marks and citations omitted). After a
careful review of the record, we conclude the district court
properly applied the enhancement.
Moreover, we find the district court imposed a reasonable
sentence. The district court correctly calculated Shore’s total
offense level to be twenty-seven and his criminal history category
to be VI. Based on these calculations, the sentencing guidelines
provided for a range of 130 to 162 months’ imprisonment. See USSG
Ch. 5, Pt. A (sentencing table). However, the statutory maximum
punishment for the offense was 120 months’ imprisonment. See 18
U.S.C. § 924(a)(2) (2000). Therefore, because of the statutory
maximum punishment, the sentencing guidelines provided for a term
of 120 months’ imprisonment. Treating the sentencing guidelines as
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advisory and consulting the applicable § 3553(a) factors, the
district court sentenced Shore to this term of imprisonment. Shore
has not rebutted the presumption that the district court’s
imposition of sentence was reasonable. See United States v. Green,
436 F.3d 449, 457 (4th Cir. 2006), cert. denied, ___ U.S. ___,
2006 WL 1057741 (U.S. May 22, 2006) (No. 05-10474).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment. This
court requires that counsel inform Shore, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Shore requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Shore.
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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