United States v. Leach , 239 F. App'x 6 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4949
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBIN LEACH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00302)
Submitted: June 13, 2007 Decided: July 12, 2007
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Charles Jones, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On August 23, 2005, Robin Leach was charged in a four
count indictment with two counts of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000)
(Counts One and Four); possession with intent to distribute cocaine
and aiding and abetting the same, in violation of 21 U.S.C.
§§ 841(a)(1) (1999) and 841(b)(1)(C) (1999) and 18 U.S.C. § 2
(2000) (Count Two); and unlawfully using and carrying a firearm and
possession of a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C.A. § 924(c) (West 2000
and Supp. 2006) (Count Three). Leach eventually entered into a
plea agreement with the Government whereby he agreed to plead
guilty to Counts Two through Four.
On April 27, 2005, the Charlotte Mecklenburg Police
Department responded to a call of shots fired during a domestic
disturbance. Upon arriving, officers encountered Robin Leach and
Tomesha Scott, Leach’s girlfriend. Authorities learned that Leach
and Scott had been involved in a physical altercation and that
after the fight, Scott took Leach’s car. Scott eventually returned
and drove Leach’s car into a tree. In retaliation, Leach then
fired two shots into Scott’s unoccupied car and used a baseball bat
to smash the front windows of Scott’s car. The police eventually
located the gun used by Leach in a duffle bag on the roof of the
home. Inside the bag was the gun with Leach’s blood on it, a
- 2 -
magazine clip, approximately twenty-four grams of cocaine, thirty-
four grams of marijuana, a crack pipe, a Brillo pad, rolling
papers, and a set of scales.
At Leach’s Rule 11 hearing, the Government clarified that
Leach discharged the gun in connection with a domestic violence
situation, and not in furtherance of a drug trafficking offense.
Leach, therefore, was subject only to a five year mandatory minimum
sentence under § 924(c) for possession of the firearm.
At Leach’s sentencing on August 30, 2006, the Government
again stated that an enhancement for discharge of a firearm did not
apply but cited the discharge in discussing the seriousness of the
offense and as a basis for sentencing Leach near the high end of
his guidelines range with respect to Counts Two and Four. The
court then sentenced Leach to thirty-six months’ imprisonment,
concurrent, on Counts Two and Four, and to sixty months’
imprisonment, consecutive, on Count Three. Leach timely appealed
and filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967).1 For the reasons that follow, we affirm the judgment of
the district court.
On appeal, Leach raises one alleged error. In his brief,
Leach first states that the district court “committed plain error
in sentencing him to a consecutive sixty (60) month sentence for
1
Leach was informed of his right to file a pro se supplemental
brief. Leach has not done so.
- 3 -
gun possession in a domestic violence situation.” Leach then goes
on to point out that the Government argued for a sentence near the
high end of his guidelines range on Count One, “and the 60 month
consecutive sentence because of the fact that the gun was
discharged into a car in a domestic violence situation and that
there were other people around.” Leach then appears to contend
that the sixty month sentence was improper because “there was no
one in and or around the car left parked in his yard that he shot
into.”
Leach failed to object to the imposition of the sixty
month sentence on Count Three in the court below. Accordingly, his
claim is subject to plain error review. Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 732 (1993). To establish
plain error, Leach must show that: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial rights.
Id. Even if Leach makes this showing, “Rule 52(b) leaves the
decision to correct the forfeited error within the sound discretion
of the court of appeals, and the court should not exercise that
discretion unless the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Id.
(quoting United States v. Young, 470 U.S. 1, 15 (1985) (internal
quotations omitted)). Here, Leach fails to establish error under
Olano.
- 4 -
To the extent that Leach claims he improperly received a
sixty month sentence on Count Three for possessing a gun during a
domestic violence situation, Leach misconstrues or misapprehends
the basis for his sentence. Leach was sentenced under § 924(c),
not for discharging the firearm during a domestic violence
situation, but for the later possession of the firearm in
connection with a drug offense. As mentioned previously, the
police located the gun used by Leach in a duffle bag with twenty-
four grams of cocaine, thirty-four grams of marijuana, a set of
scales, rolling paper, and a crack pipe. Leach admitted to placing
the gun in the bag where the drugs were found. Therefore, the
district court did not commit error in sentencing Leach to a sixty
month sentence on Count Three. See United States v. Lomax, 293
F.3d 701, 705 (4th Cir. 2002).
Despite Leach’s apparent suggestion to the contrary, the
discharge of the gun and the fact that “no one was in and or around
the car left parked in his yard that he shot into” had no bearing
on his sentence for the § 924(c) violation in Count Three. Rather,
as the prosecutor twice pointed out, Leach was being sentenced for
mere possession of the firearm and not discharge of the weapon, as
the discharge, unlike the later possession, occurred during the
domestic situation. The Government merely used the facts
surrounding the discharge to argue for a sentence near the high end
of Leach’s guidelines range on Counts Two and Four and not to
- 5 -
affect Leach’s sentence on Count Three. Accordingly, Leach has
failed to establish error in being sentenced to the five year
minimum for Count Three.
In accordance with Anders, we have reviewed the 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 Leach, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Leach 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 Leach.
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
- 6 -