United States v. Joshua Larrimore , 593 F. App'x 168 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4510
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSHUA GERALD LARRIMORE,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:12-cr-00364-WO-1)
Argued: September 19, 2014 Decided: November 24, 2014
Before DIAZ and THACKER, Circuit Judges, and Paul W. GRIMM,
United States District Judge for the District of Maryland,
sitting by designation.
Affirmed by unpublished per curiam opinion. Judge Diaz wrote a
dissenting opinion.
ARGUED: John Archibald Dusenbury, Jr., OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant.
Andrew Charles Cochran, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C.
Allen, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Ripley
Rand, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Joshua Gerald Larrimore (“Appellant”) challenges his
sentence of 74 months’ imprisonment, imposed as a result of his
pleading guilty to a violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) for unlawful possession of a firearm. Appellant
argues the district court erred by concluding Appellant
possessed a firearm in connection with a larceny for purposes of
the four-level enhancement authorized by the United States
Sentencing Guidelines (“Sentencing Guidelines” or “U.S.S.G.”).
See U.S.S.G. § 2K2.1(b)(6)(B). Because the firearm at issue was
the object of the larceny, we likewise conclude Appellant
possessed the firearm in connection with the larceny.
Accordingly, we affirm Appellant’s sentence.
I.
A.
On July 5, 2012, Appellant reported a housebreaking in
the home he shared with his mother and her boyfriend, Vernon
Britt. When a Winston-Salem Police Department officer responded
to a housebreaking call, Appellant claimed someone had broken
into the house and pried open Britt’s gun safe. 1 Shortly
thereafter, the officer searched the gun safe, where he found
1
The presentence investigation report referred to the safe
specifically as a gun safe. Neither party objected to this
characterization.
3
six firearms. The officer then called Britt and described the
firearms; Britt confirmed that six firearms were kept in the gun
safe. Both Britt and Appellant gave permission for the gun safe
to be dusted for fingerprints. Appellant offered that he had
tried to repair the gun safe, so his prints would be found, and
that one of his brothers was likely responsible for the
housebreaking. The officer then began to canvas the
neighborhood.
Upon returning to the house, the officer went back to
the gun safe and noticed that five -- not six -- firearms
remained in the gun safe. A .38-caliber Smith & Wesson revolver
had vanished. Although he had been the only person in the house
at the time the firearm disappeared, Appellant denied any
knowledge of what had happened to the now-missing firearm.
Ultimately, Appellant admitted he hid the firearm under a
vehicle in the backyard. He claimed he did so in an effort to
protect his stepbrother, who Appellant alleged used the firearm
to commit a murder. The firearm was subsequently recovered.
Having agreed to an interview with detectives,
Appellant proceeded to the police station, where he admitted he
broke into the gun safe. He also admitted he later took the
firearm and hid it with the intent of selling it later. The
tale of his murderous stepbrother was mere fiction.
4
Appellant had previously been convicted of felony
attempted armed robbery on June 11, 2008; his right to possess
firearms had not been restored as of July 5, 2012. On October
29, 2012, a federal grand jury returned a single-count
indictment, charging Appellant with unlawful possession of a
firearm pursuant to 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On
February 4, 2013, Appellant pled guilty as charged.
B.
Before sentencing, the United States probation officer
completed a presentence investigation report (“PSR”). The PSR
calculated Appellant’s base offense level under section 2K2.1 of
the Sentencing Guidelines as 20. A two-level enhancement was
added because the firearm was stolen and a four-level
enhancement was added because the firearm was possessed in
connection with another felony (i.e., felony safecracking). See
U.S.S.G. § 2K2.1(b)(4)(A), (b)(6)(B). After applying a three-
point reduction for acceptance of responsibility, the PSR set
Appellant’s total offense level at 23. Id. § 3E1.1(a)
(accepting of responsibility); id. § 3E1.1(b) (assisting
authorities). The offense level, considered in combination with
Appellant’s applicable criminal history category of IV, resulted
in a Sentencing Guidelines range for imprisonment of 70 to 87
months.
5
Prior to and during the sentencing hearing, Appellant
objected to the application of the four-level enhancement for
possession of a firearm in connection with another felony.
Appellant argued he did not possess the firearm during the
commission of the safecracking; rather, he argued, the firearm
was taken after this felony was completed.
At the May 31, 2013, sentencing hearing, the district
court applied the four-level enhancement -- but not because
Appellant possessed the firearm in connection with felony
safecracking. The district court concluded the safecracking
statute only related to “essentially the unlawful opening of the
safe.” J.A. 99. 2 Therefore, because the safecracking felony was
complete when the safe was opened, the district court concluded
the facts did not support the recommended enhancement on that
basis.
The district court nonetheless concluded that the
application of the enhancement was, instead, predicated on
felony larceny of the firearm. The district court noted that
facilitation, for purposes of section 2K2.1(b)(6)(B), includes
circumstances when “the theft could not have occurred without
the actual taking of the firearm” and when the firearm could
2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
6
provide assistance in escaping. J.A. 98. Because Appellant
took possession of the firearm as part and parcel of the
larceny, the district court applied the recommended four-level
enhancement.
After considering the Sentencing Guidelines, as well
as the factors set forth in 18 U.S.C. § 3553(a), the district
court imposed a sentence of 74 months’ imprisonment, a sentence
at the lower end of the advisory guidelines. Discussing the
enhancements, the district court explained,
[these] adjustments, collectively, result in
a significant increase in [Appellant’s]
guideline range while at the same time
perhaps this does not reflect some of the
more serious iterations or variations that
might support [these] adjustments, and,
therefore, I find that a sentence of 74
months is sufficient but not greater than
necessary.
J.A. 123.
Appellant timely appealed. We possess jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
II.
When reviewing a district court’s application of the
Sentencing Guidelines, factual findings are reviewed for clear
error and legal conclusions are reviewed de novo. See United
States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014). “Where a
[Sentencing] Guidelines application involves a mixed question of
law and fact, the applicable standard turns on the nature of the
7
circumstances at issue. If the application is ‘essentially
factual,’ we apply the clearly erroneous standard.” Id.(quoting United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.
1989)).
III.
The applicable section of the Sentencing Guidelines
for a conviction pursuant to 18 U.S.C. §§ 922(g)(1) and
924(a)(2) is section 2K2.1. Because Appellant committed the
offense at issue after sustaining a felony conviction for a
crime of violence, his base offense level was 20. U.S.S.G.
§ 2K2.1(a)(4)(A). Section 2K2.1 also outlines various specific
offense characteristics that may be applied to increase the
offense level. Id. § 2K2.1(b). At issue here is the four-level
enhancement that applies in cases where an individual
“used or possessed any firearm or ammunition in connection with
another felony offense.” Id. § 2K2.1(b)(6)(B). Accordingly,
this appeal turns on the definition of “in connection with” as
it is used in section 2K2.1(b)(6)(B). 3 The Sentencing Guidelines
3
The Government also asserted in its brief and at argument
that application note 14(B) of section 2K2.1 compels a four-
level enhancement because burglary and safecracking are similar
offenses. Application note 14(B) permits a four-level
enhancement pursuant to section 2K2.1(b)(6)(B) “in a case in
which a defendant who, during the course of a burglary, finds
and takes a firearm” and “in the case of a drug trafficking
offense in which a firearm is found in close proximity to drugs,
drug-manufacturing materials, or drug paraphernalia.” U.S.S.G.
(Continued)
8
generally note that this enhancement applies “if the firearm or
ammunition facilitated, or had the potential of facilitating,
another felony offense or another offense, respectively.” Id.
§ 2K2.1 cmt. n.14(A).
As the district court concluded, in this case the
nexus between the firearm and the larceny is sufficient because
the firearm was the fruit of the larceny; in other words, “the
theft could not have occurred without the actual taking of the
firearm.” J.A. 98. Facilitation and the phrase “in connection
with” are not narrowly construed to encompass only those
circumstances where a firearm emboldens an individual or is used
for protection. Instead, these concepts are expansive. Smith
v. United States, 508 U.S. 223, 237–38 (1993). 4 The district
court’s decision that these concepts extend to those instances
where a firearm is the fruit of a felony offense -- where it is
the object of the offense -- comports with our jurisprudence and
was not, therefore, erroneous.
§ 2K2.1 cmt. n.14(B). Because we affirm the district court’s
decision to apply the enhancement due to the larceny but not the
safecracking, we need not reach this issue.
4
The relevant language in Smith was “in relation to,” but
“when interpreting ‘in connection with,’ we continue to treat
the phrases as synonymous and to rely on our cases interpreting
‘in relation to.’” United States v. Jenkins, 566 F.3d 160, 162
n.2 (4th Cir. 2009).
9
We have held that a firearm is used “in connection
with” another felony where it facilitates, or has some purpose
or effect, in relation to the underlying felony and when its
presence is neither coincidental or accidental. United States
v. Blount, 337 F.3d 404, 411 (4th Cir. 2003). 5 We opined in
Blount that the Government could have established the firearm at
issue was used in connection with a burglary “by showing, for
example, that the defendant actually used the stolen weapon to
intimidate occupants of the home, or that he prepared for this
contingency by keeping the firearm close at hand.” Blount, 337
F.3d at 411; see also United States v. Hampton, 628 F.3d 654,
663 (4th Cir. 2010) (noting firearm was possessed in connection
with another offense because the appellant “had the weapon close
at hand and, more importantly . . . made multiple attempts to
access it during the course of the assault”).
5
In Blount, we held the Government did not present any
evidence that the firearm at issue was used “in connection with”
the burglary committed by the appellant. Blount preceded
application note 14(B) and is, therefore, partially abrogated by
adoption of application note 14(B) because the note compels
application of a four-point enhancement if a firearm is stolen
in the course of a burglary. However, the general principle of
Blount -- that is, that a firearm must have some purpose in
relation to the offense and its involvement or presence cannot
be mere accident or coincidence -- remains applicable in this
circuit. See, e.g., Jenkins, 566 F.3d at 162-63 (relying on the
general principles set forth in Blount).
10
These examples are not exclusive. A firearm can have
purposes beyond emboldening an individual, making an escape
easier, or frightening victims. Here, the firearm was itself a
necessary component of the offense. To hold, therefore, that
Appellant used it in connection with another felony is
consistent with our reasoning in Blount that the firearm have
some purpose of effect in relation to the underlying felony.
Cf. United States v. Schaal, 340 F.3d 196, 198 (4th Cir. 2003)
(“[A]n enhancement of four levels [was applied] because [the
appellant] possessed or used at least one of the weapons in
connection with another felony offense -- inter alia, the state-
law breaking and entering and larceny offenses that produced the
stolen weapons.” (citations omitted)). The Seventh, Eighth, and
Tenth Circuits have taken this position. See United States v.
Marrufo, 661 F.3d 1204, 1207-08 (10th Cir. 2011) (tampering with
firearm); United States v. Pazour, 609 F.3d 950, 954 (8th Cir.
2010) (theft of firearm); United States v. Wise, 556 F.3d 629,
632 (7th Cir. 2009) (presence of firearm recklessly endangered
children).
As the Eighth Circuit observed in Pazour, a firearm
can facilitate a larceny when the firearm is the object stolen.
609 F.3d at 954. There, the appellant was holding a rifle and
two shotguns for a friend; he then pawned all three guns and
was, consequently, charged with being a felon in possession of a
11
firearm. See id. at 951. The district court applied a four-
level enhancement because the firearms were possessed in
connection with a felony theft. See id. at 954. Although the
Pazour appellant had permission to hold the firearms, “the
firearms became stolen when [the appellant] pawned them.” Id.The Pazour court concluded that “without [the appellant’s]
possession of the firearms, he would not have been able to steal
the firearms by pawning them -- in other words . . . the
firearms facilitated the theft because the firearms were the
stolen articles of the theft itself.” Id.Similarly, the Tenth Circuit concluded that a firearm
facilitated tampering with evidence because the firearm itself
was the subject of the tampering. See Marrufo, 661 F.3d at
1207-08. The appellant in Marrufo was charged with possession
of a firearm by a felon, and the district court applied a four-
level enhancement because the appellant had tampered with
evidence by hiding the firearm used in the commission of second-
degree murder. See id. at 1206. Because New Mexico law
required some variety of manipulation of evidence to prove
tampering with evidence, the Marrufo court determined “it would
be harder for a defendant to commit the crime of tampering with
evidence . . . if he did not physically possess the evidence.”
Id. at 1207; see also Wise, 556 F.3d at 632 (holding that, “by
carelessly leaving his loaded gun in a location accessible to
12
children,” the appellant possessed a firearm in connection with
felony willful endangerment offense).
In this appeal, we are presented with almost identical
circumstances as those presented in Pazour and Marrufo. Here,
the district court relied on Pazour and found that the other
felony offense necessary for purposes of the four-level
enhancement was a larceny and that the factual predicate for
this offense was Appellant’s theft of a firearm. Without the
firearm, there was no larceny; so the firearm had a purpose or
effect in relation to the felony -- it was the fruit of the
crime. Because the firearm was the fruit of the crime, the
district court determined possession of the firearm was “in
connection with” the larceny.
Blount does not preclude the district court’s
conclusion because Pazour is consistent with Blount; Marrufo is
likewise consistent with Blount. Pazour and Marrufo required a
sufficient nexus between a firearm and a felony offense for
enhancement purposes. In each case, there was a sufficient
nexus because the presence or possession of the firearm was part
and parcel of the felony at issue. The Pazour appellant
possessed the firearm by theft, allowing him to sell it; the
Marrufo appellant possessed the firearm, allowing him to tamper
with it.
13
Pazour and Marrufo also recognize, as Blount mandates,
that an individual’s possession of a firearm cannot be a mere
accident or coincidence. See Blount, 337 F.3d at 411 (“[A
firearm’s] presence or involvement cannot be the result of
accident or coincidence.” (quoting Smith, 508 U.S. at 238)
(internal quotation marks omitted)). In each case, possession
was purposeful. See Pazour, 609 F.3d at 954; Marrufo, 661 F.3d
at 1207. Here, too, Appellant’s possession of a firearm was no
accident or coincidence. J.A. 95 (“[Appellant] admitted that he
broke into the safe, admitted that he took the firearm and
planned to sell it . . . .”).
At bottom, the reasoning of the district court
fulfills the requirements of Blount. The firearm had some
purpose in relation to the larceny (i.e., it was the object of
the larceny), and Appellant’s possession was not accidental or
coincidental. Accordingly, the district court did not err by
applying a four-point enhancement pursuant to § 2K2.1(b)(6)(B). 6
6
We note the district court also concluded the firearm had
the potential to facilitate the larceny because it could have
been used to assist Appellant in escaping if he had been
confronted while absconding with the firearm. Although Blount
suggests there must be some intent to use a firearm to support
such enhancement, it is unclear whether such a heightened
showing is required in the post-Blount landscape. Compare
Blount, 337 F.3d at 411 (requiring the Government to show “the
defendant actually used the stolen weapon to intimidate
occupants of the home, or that he prepared for this contingency
by keeping the firearm close at hand”), with U.S.S.G. § 2K2.1
(Continued)
14
IV.
Pursuant to the foregoing, Appellant’s sentence is
AFFIRMED.
cmt. n.14(A) (requiring only a finding that “the firearm or
ammunition facilitated, or had the potential of facilitating,
another felony offense” (emphasis added)). We need not decide
whether this ground is sufficient to support an enhancement
because we affirm the sentence on the above-discussed grounds.
15
DIAZ, Circuit Judge, dissenting:
The majority concludes that when a firearm is the object of
a larceny, a defendant necessarily possesses it “in connection
with” that larceny for purposes of applying the four-level
sentence enhancement authorized by the U.S. Sentencing
Guidelines Manual (U.S.S.G.) § 2K2.1(b)(6)(B) (2013). Were I
writing on a cleaner slate, I might well agree with the
majority’s view; indeed, at least two other circuits have
adopted similar reasoning. See United States v. Marrufo, 661
F.3d 1204, 1207–09 (10th Cir. 2011); United States v. Pazour,
609 F.3d 950, 954 (8th Cir. 2010). 1 But because our circuit has
resisted such a broad interpretation of the relevant Guideline
and instead employs a case-by-case, fact-specific inquiry to
determine whether the firearm actually or potentially
facilitated the predicate crime, I respectfully dissent.
1
The majority cites United States v. Wise, 556 F.3d 629(7th Cir. 2009), as evidence that the Seventh Circuit has also
adopted this reasoning. In Wise, however, the court affirmed
the district court’s application of an enhancement under
§ 2K2.1(b)(6)(B) because the defendant’s possession of a firearm
facilitated the felony of reckless endangerment. 556 F.3d at
632. We came to a similar conclusion in United States v.
Alvarado Perez, 609 F.3d 609, 612–14 (4th Cir. 2010). In both
cases, it was axiomatic that the possession of a loaded firearm
had a purpose or effect with respect to the offense because the
possession itself was the essence of the offense conduct.
Additionally, in each of these cases, the district court’s
conclusion that the firearm facilitated the offense was
supported by findings of fact. Neither of those circumstances
is present here.
In United States v. Blount, 337 F.3d 404 (4th Cir. 2003),
we contrasted our fact-driven view of the “in connection with”
requirement with the broader approach employed in other
circuits. Blount pleaded guilty to possession of a firearm and
ammunition by a felon after he was found with ammunition on his
person near the scene of a burglary. He admitted that he had
also stolen a firearm in the burglary but had discarded it. On
those facts, the presentence report recommended a four-level
enhancement under § 2K2.1(b)(6)(B). Blount objected to the
enhancement and we agreed that it was inappropriate.
Specifically, we observed that “the mere fact that a
firearm was available to the defendant during commission of
another crime,” while sufficient to support the four-level
enhancement in other circuits, would not justify the enhancement
in this circuit. Blount, 337 F.3d at 410–11. Rather, “a
clearer nexus between the firearm and the associated offense” is
necessary to satisfy the “in connection with” requirement. Id.
at 411.
We clarified that a firearm is not used “in connection
with” another offense unless it facilitates the offense, meaning
that it “must have some purpose or effect with respect
to . . . the crime.” Id. (internal quotation marks omitted).
We also gave several examples of how the government might make
this showing, including by demonstrating that the defendant
17
actually used the firearm to intimidate others, or that he kept
it close at hand to prepare for this contingency. Id.Admittedly, Blount’s holding with respect to burglary was
abrogated by Application Note 14(B), 2 but its reasoning remains
good law in this circuit for other predicate crimes. In that
regard, we have continued to require that district courts make
specific findings of fact to support a conclusion that a firearm
facilitated another felony. Our decision in United States v.
Hampton, 628 F.3d 654 (4th Cir. 2010), is instructive.
Hampton was involved in an altercation with police after
the car in which he was a passenger was pulled over. As Hampton
struggled with an officer, he repeatedly reached for his pants
pocket. After he was subdued, the police recovered a .38
caliber revolver from his pocket. Although there was no dispute
that Hampton possessed the firearm, we nonetheless looked to his
2
In Application Note 14(B), the Sentencing Commission
specified two crimes in which acquiring or possessing a firearm
automatically facilitates the offense for purposes of
§ 2K2.1(b)(6)(B): burglary and drug trafficking. In this case,
however, the underlying felonies are larceny and safecracking.
The government contends nonetheless that the reach of the Note
extends to these predicate offenses. But by its plain terms,
Note 14(B) applies only to the named offenses, and indeed was
enacted by the Commission specifically to address a circuit
split with respect to the use of a firearm “in connection with”
those offenses. U.S.S.G. app. C, amend. 691 (2011) (“Reason for
Amendment”). Had the Commission intended the Note to apply to
other offenses, it could have easily included them.
18
specific conduct to determine whether the firearm had a
facilitative purpose or effect. Because Hampton kept the
firearm “close at hand” and attempted to retrieve it multiple
times during his skirmish with the police, we held that it
facilitated Hampton’s assault of a police officer while
resisting arrest, thus warranting the enhancement. Id. at 663–
64.
Hampton is representative of our case-by-case approach to
the application of this particular enhancement. See, e.g.,
United States v. Jenkins, 566 F.3d 160, 162 (4th Cir. 2009)
(making a “factual determination based on the specific
circumstances of th[e] case” that the firearm potentially
facilitated the defendant’s drug possession because it
emboldened him); see also United States v. Todd, 400 F. App’x
708, 710 (4th Cir. 2010) (unpublished) (reversing the district
court’s application of the enhancement because the district
court “applied the wrong legal standard” by not making any
findings that the firearm emboldened the defendant or was
present for his protection); United States v. Blankenship, 383
F. App’x 345, 346 (4th Cir. 2010) (unpublished) (upholding the
enhancement where the district court found that the defendant
“was emboldened to commit the theft [of prescription medicines]
and protected during its commission by the firearms”); cf.
United States v. Lucas, 542 F. App’x 283, 286-88 (4th Cir. 2013)
19
(unpublished) (holding that a firearm facilitated the offense of
obstruction of justice where the defendant fled from the police
and hid the firearm in a freezer, which rendered the underlying
offense of obstruction more dangerous).
In this case, the district court applied the enhancement
because (1) the firearm was “the fruit of the theft,” and (2) in
any case involving possession of a firearm, the firearm “can be
said to facilitate [the offense] . . . to the extent one might
be confronted during the course of an escape.” J.A. 98.
Neither rationale supports applying the enhancement.
With respect to the district court’s first reason, our
circuit has never before adopted the view, articulated in
Pazour, that a firearm per se facilitates a crime when it is the
object of that crime. See 609 F.3d at 954. Rather, we have
emphasized that mere possession of a firearm while committing
another felony is insufficient to support a finding of
facilitation, and that district courts must instead look to the
circumstances of each case to determine whether (for example)
the firearm emboldened its possessor, was kept close at hand,
was used for protection, or made the other felony more
dangerous. See Blount, 337 F.3d at 411. The reasoning of the
Eighth and Tenth Circuits, while attractive in its simplicity,
cannot be reconciled with the fact-driven inquiry mandated by
our cases.
20
The district court’s second rationale, which it
acknowledged was “tenuous,” is similarly foreclosed by Blount.
In determining whether a firearm facilitated a felony, Blount
teaches that we look to the actual circumstances of each case,
not to hypotheticals. See id. Although the district court
correctly stated that a firearm could facilitate a felony “to
the extent one might be confronted during the course of an
escape,” it made no finding here that there was a confrontation
or, for that matter, even a risk of one.
Because I would reverse the district court’s decision to
apply the four-level enhancement on these facts, I respectfully
dissent.
21