United States v. Torben Jackson ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4883
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TORBEN LAMONT JACKSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:13-cr-00258-RJC-10)
Submitted: July 13, 2015 Decided: August 5, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Torben Lamont Jackson pled guilty pursuant to a plea
agreement to conspiracy to distribute and possess with intent to
distribute 280 grams or more of cocaine base and 5 kilograms or
more of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846
(2012). The district court calculated Jackson’s Guidelines
range under the U.S. Sentencing Guidelines Manual (2013) at 168
to 210 months’ imprisonment and sentenced him to 168 months’
imprisonment. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but raising as an issue
for review whether the district court plainly erred in applying
the 2-level enhancement under USSG § 2D1.1(b)(1) for possession
of a firearm. The Government declined to file a brief and does
not seek to enforce the appeal waiver in Jackson’s plea
agreement. Jackson was informed of his right to file a pro se
supplemental brief, but he has not done so. We affirm.
Because Jackson did not object in the district court to the
application of the 2-level enhancement under USSG § 2D1.1(b)(1),
we review counsel’s challenge for plain error. United States v.
Hargrove, 625 F.3d 170, 183-84 (4th Cir. 2010). Section
2D1.1(b)(1) of the Guidelines directs a district court to
increase a defendant’s offense level by 2 levels “[i]f a
dangerous weapon (including a firearm) was possessed.”
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The enhancement should be applied “if the weapon was present,
unless it is clearly improbable that the weapon was connected
with the offense.” USSG § 2D1.1 cmt. n.11(A). The enhancement
is proper when the weapon at issue “was possessed in connection
with drug activity that was part of the same course of conduct
or common scheme as the offense of conviction,” United States v.
Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010) (internal
quotation marks omitted), “even in the absence of proof of
precisely concurrent acts, for example, gun in hand while in the
act of storing drugs, drugs in hand while in the act of
retrieving a gun.” United States v. Slade, 631 F.3d 185, 189
(4th Cir. 2011) (internal quotation marks omitted).
To prove that a weapon was present, the Government “need
show only that the weapon was possessed during the relevant
illegal drug activity.” United States v. McAllister, 272 F.3d
228, 234 (4th Cir. 2001). The defendant bears the burden of
showing that a connection between his possession of a firearm
and his narcotics offense is “clearly improbable.” Slade,
631 F.3d at 189 (internal quotation marks omitted).
The district court’s application of the 2-level enhancement
under USSG § 2D1.1(b)(1) is supported by information in the
presentence report indicating that law enforcement officials
discovered during the pendency of the conspiracy a stolen Taurus
.357 magnum firearm under Jackson’s mattress that Jackson
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admitted was his. Jackson possessed 44.7 grams of cocaine at
the time of the discovery, and a set of digital scales,
“baggies,” and bullets for the firearm were discovered in the
residence that contained the mattress. At sentencing, Jackson
did not point to any evidence suggesting that the connection
between the firearm and his narcotics offense was “clearly
improbable,” and this failing continues on appeal. Jackson thus
fails to establish that the district court plainly erred in
applying the 2-level enhancement under USSG § 2D1.1(b)(1).
In accordance with Anders, we also have reviewed the
remainder of 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
Jackson, in writing, of the right to petition the Supreme Court
of the United States for further review. If Jackson 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 Jackson.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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