United States v. Tracey Brite

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4935
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRACEY JERMONT BRITE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Louise W. Flanagan,
District Judge. (2:14-cr-00002-FL-1)
Submitted: June 8, 2015 Decided: July 22, 2015
Before WILKINSON, DUNCAN, and HARRIS, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the opinion
in which Judge Wilkinson and Judge Harris joined.
Thomas P. McNamara, Federal Public Defender, Robert E. Waters,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Thomas G.
Walker, United States Attorney, Jennifer P. May-Parker, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
Tracey Brite appeals his 87-month sentence for felony
possession of a firearm. He argues that because the record does
not support the finding that he “used or possessed” a firearm “in
connection with another felony offense,” U.S.S.G.
§ 2K2.1(b)(6)(B), the district court erred by applying a four-
level sentencing enhancement. We find this argument unavailing,
and consequently affirm Brite’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the material before this court and argument will not
aid the decisional process.
In June 2011, confidential informants began reporting to
officers of the Pasquotank County Sheriff’s Office (“PCSO”) that
Brite was storing and distributing drugs from his home in Elizabeth
City, North Carolina. On September 26, 2011, officers of the PCSO
and the Beaufort County Sheriff’s Office (“BCSO”) detained two
suspects and seized over one kilogram of cocaine. One of the
suspects advised the officers that they purchased the cocaine from
Brite. That same day, officers conducted a “knock and talk” at
Brite’s home, during which, officers reported, Brite admitted to
storing and distributing drugs. The officers searched the house
and found a loaded .357 caliber revolver, two digital scales, a
glass measuring container, and two bottles of creatine
monohydrate--a bodybuilding powder the government contends Brite
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used to cut cocaine for sale. One of the scales and the glass
measuring container later tested positive for cocaine residue; the
revolver was not tested.
Despite Brite’s admissions and the evidence gathered from his
house, the officers who searched his house did not arrest or charge
him. Instead, according to officer reports, Brite agreed to
cooperate, and the officers let him go with instructions on how to
contact them. However, when the officers returned to Brite’s
residence several days later, they discovered that he had moved to
Maryland.
By May 20, 2014, Brite returned to Elizabeth City and was
arrested for felony possession of the revolver recovered in the
September 26, 2011 search of his house. According to reports of
the arresting officers and testimony from a special agent with the
Bureau of Alcohol, Tobacco, and Firearms (“ATF”) who interviewed
Brite, after his arrest, Brite again admitted that he sold drugs,
describing himself as a “small-time dealer.” J.A. 52. A U.S.
Probation Officer prepared a Pre-Sentence Report (“PSR”), which
calculated a total offense level of 25, including a four-level
enhancement for “possess[ing a] firearm and ammunition in
connection with another felony, that offense being the Unlawful
Possession with Intent to Distribute a Controlled Substance.” J.A.
88 (citing U.S.S.G. § 2K2.1(b)(6)(B)). The PSR calculated a
Sentencing Guidelines range of 70 to 87 months.
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Brite objected to all references in the PSR that he ever
distributed or admitted to distributing controlled substances and
to all references to any cooperation agreement. At his detention
hearing, Brite admitted to possessing the revolver as a convicted
felon, stating that he needed it “for protection,” though he denied
that it had any connection to drug trafficking activity. J.A. 50-
51. Relying on Brite’s statement that he needed the revolver “for
protection,” his self-description as a “drug dealer,” his use of
the creatine powder as a cutting agent, and the cocaine residue
recovered from his house, the district court concluded that Brite
distributed drugs and that the revolver was connected to those
activities. Accordingly, the court applied a four-level
enhancement under U.S.S.G. § 2K2.1(b)(6)(B) and imposed a sentence
of 87 months. Brite timely appealed.
On appeal, Brite contends that evidence of cocaine residue
near a firearm alone is insufficient to support a four-level
enhancement for possession of a firearm in connection with felony
distribution of cocaine. We conclude that the district court did
not clearly err in its findings and affirm Brite’s sentence.
We review the factual findings underlying a district court’s
sentencing decision for clear error. United States v. Manigan,
592 F.3d 621, 626 (4th Cir. 2010). Under the clearly erroneous
standard, “[i]f the district court's account of the evidence is
plausible in light of the record viewed in its entirety, the court
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of appeals may not reverse.” Belk v. Charlotte-Mecklenburg Bd. of
Educ., 269 F.3d 305, 318 (4th Cir. 2001) (quoting Anderson v. City
of Bessemer City, 470 U.S. 564, 573-74 (1985)). “The burden is on
the government to prove by a preponderance of the evidence that
the sentencing enhancement should be applied.” United States v.
Steffen, 741 F.3d 411, 414 (4th Cir. 2013). While the mere
possession of a firearm while involved in distributing drugs is
not sufficient to support an enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B), evidence that the firearm was used to protect
the drugs or that it “emboldened” the defendant will support the
enhancement. United States v. Jenkins, 566 F.3d 160, 162-63 (4th
Cir. 2009).
Here, Brite’s description of the evidence is misleading. The
district court relied on more than the cocaine residue recovered
from Brite’s house--though it did note that the residue was
“compelling.” J.A. 61. While Brite contests other elements of
the record on which the district court relied--such as his
purported self-description as a “drug dealer” and his use of the
creatine powder as a cutting agent--a reasonable factfinder, fully
crediting police and ATF testimony for the government, could find
that Brite distributed cocaine. Similarly, given Brite’s
statement that he used the revolver “for protection,” a reasonable
factfinder could find that the revolver emboldened Brite or that
he used it to protect his stock of drugs for sale. Even if we
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held the evidence here to be sufficient to support the opposite
conclusions--an analysis we need not and do not undertake--
“[w]here there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous.”
Belk, 269 F.3d at 318 (quoting Anderson, 470 U.S. at 574).
For the foregoing reasons, the sentencing order of the
district court is
AFFIRMED.
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