United States v. David Sims, Jr. , 694 F. App'x 931 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4559
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID SIMS, JR., a/k/a David D. Sims, a/k/a David Sims,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Judge. (3:14-cr-00236-FDW-DSC-1)
Submitted: July 27, 2017 Decided: August 14. 2017
Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Roderick M. Wright, Jr., THE WRIGHT LAW FIRM OF CHARLOTTE, PLLC,
Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose, United States
Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Sims, Jr., pleaded guilty to possession of a firearm by a felon, in violation
of 18 U.S.C. § 922(g)(1) (2012). The district court sentenced Sims to 92 months of
imprisonment and he now appeals. Finding no error, we affirm.
Sims first argues on appeal that the district court erred in calculating the base
offense level under U.S. Sentencing Guidelines Manual § 2K2.1 (2016) *, because his
prior Florida carjacking conviction and Georgia aggravated assault conviction do not
qualify as crimes of violence under the Sentencing Guidelines. See USSG
§§ 2K2.1(a)(2), 4B1.2(a). We review “de novo whether a defendant’s prior offense
qualifies as a crime of violence under the” Guidelines. United States v. Riley, 856 F.3d
326, 327-28 (4th Cir. 2017). We have thoroughly reviewed the record and the relevant
legal authorities and conclude that the district court did not err in calculating the base
offense level under the Guidelines.
Sims next challenges the district court’s application of a four-level enhancement in
offense level for possession of the firearm in connection with another felony offense. In
reviewing the district court’s calculations under the Guidelines, “we review the district
court’s legal conclusions de novo and its factual findings for clear error.” United States
v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal quotation marks omitted). We
will “find clear error only if, on the entire evidence, we are left with the definite and firm
*
We would reach the same conclusion under the version of the Guidelines in
effect when Sims committed the offense as that in effect when Sims was sentenced.
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conviction that a mistake has been committed.” Id. at 631 (internal quotation marks and
alteration omitted).
Pursuant to USSG § 2K2.1(b)(6)(B), a district court shall apply a four-level
enhancement to the offense level if the defendant possessed a firearm in connection with
another felony offense. “A defendant possesses a firearm in connection with another
felony when the firearm facilitated, or had the potential of facilitating the other offense.”
United States v. McKenzie-Gude, 671 F.3d 452, 463 (4th Cir. 2011) (internal quotation
marks omitted). “This requirement is satisfied if the firearm had some purpose or effect
with respect to the other offense, including if the firearm was present for protection or to
embolden the actor.” Id. at 464 (internal quotation marks omitted). Upon review of the
record, we conclude that the court committed no clear error in enhancing Sims’ offense
level.
Accordingly, we affirm the judgment of the district court. 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 in the decisional process.
AFFIRMED
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