United States v. Shipman

Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4967
EDWARD VENEZ SHIPMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-03-44)
Submitted: June 16, 2004
Decided: August 20, 2004
Before WILLIAMS, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Christine Wit-
cover Dean, Clay C. Wheeler, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. SHIPMAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Edward Venez Shipman ("Shipman") pled guilty to possession of
a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was
sentenced to a term of eighty-four months of imprisonment. Shipman
appeals his sentence, contending that the district court clearly erred
in finding that he possessed the firearm in connection with another
felony offense, U.S. Sentencing Guidelines Manual § 2K2.1(b)(5)
(2003). We affirm.1
Shipman and his brother, Ronnie, were arrested after police in
Lumberton, North Carolina, were called to a public housing area for
two complaints of loud music from a vehicle. The police officer who
responded first heard no music, but saw the Shipmans’ car backed
into a driveway. When the police officer parked nearby, both Ship-
mans got out of the car. Shipman walked toward the exit of the hous-
ing area where signs were posted prohibiting non-residents from
trespassing, loitering, or parking. Ronnie went behind the building.
The officer ran a check of the vehicle’s license number and learned
that the owner did not live in Weaver Court. He then followed Ronnie
behind the building and found him crouched down, apparently hiding.
Ronnie gave off a strong odor of marijuana. He told the officer he was
there to visit his son, but could not say where his son lived. The offi-
cer then detained him. As a backup officer arrived, Shipman reap-
peared. He walked toward the officers with his hands in his pockets
and asked what they were doing to Ronnie. Shipman ignored an
instruction to take his hands out of his pockets and to show identifica-
1
Shipman has moved for leave to file a supplemental brief challenging
the validity of his sentence under Blakely v. Washington, 124 S. Ct. 2531(2004). We grant the motion and treat the motion as the supplemental
brief. We find no merit in the claim. See United States v. Hammoud, No.
03-4253, 2004 WL 1730309 (4th Cir. Aug. 2, 2004) (order).
UNITED STATES v. SHIPMAN 3
tion. He also gave off the odor of marijuana. The two officers together
handcuffed Shipman, who resisted. They found that he was carrying
a handgun and a bag containing seven small bags of marijuana total-
ing 13.2 grams. The officers subsequently discovered another hand-
gun and the keys to the Shipmans’ vehicle hidden in a small charcoal
grill in the area where Ronnie had been hiding.
Shipman pled guilty to possession of a firearm by a convicted
felon. After the presentence report was prepared, he objected to the
probation officer’s recommendation for an enhancement under
§ 2K2.1(b(5) for possession of the firearm in connection with another
felony, asserting that he possessed a small amount of marijuana for
personal use and that no evidence indicated his intent to sell the mari-
juana. Simple possession of marijuana is a Class 3 misdemeanor
under North Carolina law. See N.C. Gen. Stat. § 90-95(a)(3), (d)(4)
(LexisNexis 2001). Under federal law, it is a misdemeanor except
when the defendant has two or more prior state or federal drug con-
victions, in which case it is a felony. 21 U.S.C. § 844(a) (2000). At
the sentencing hearing, Shipman argued that an area where drugs are
sold would attract buyers as well as sellers. However, the district
court determined that the fact that Shipman was in an area known for
drug trafficking at night with marijuana packaged for sale and was
carrying a gun indicated that Shipman intended to sell the marijuana.
On appeal, Shipman argues that the enhancement under
§ 2K2.1(b)(5) was not warranted because the district court clearly
erred in finding that he intended to distribute the marijuana. The gov-
ernment has the burden of proving facts that establish the applicability
of this enhancement by a preponderance of the evidence. United
States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001). The district court
may find that a firearm is "used in connection with another felony
offense if it facilitates or has a tendency to facilitate the felony
offense." Id. at 829 (citing Smith v. United States, 508 U.S. 223, 237
(1993)) (internal quotations omitted).
An intent to distribute drugs may be inferred from a variety of fac-
tors, including possession of a large quantity of drugs, a large quantity
of cash, or drug packaging paraphernalia, but possession of a small
amount of drugs alone does not permit the inference of intent to dis-
tribute. United States v. Fisher, 912 F.2d 728, 730-31 (4th Cir. 1990);
4 UNITED STATES v. SHIPMAN
see also United States v. Jones, 204 F.3d 541, 544 (4th Cir. 2000)
(possession of 2.3 grams of crack together with scale, sifter, razor
blades, and rolling papers indicated intent to distribute). Possession of
firearms and a small quantity of drugs, without more, may not be suf-
ficient to establish intent to distribute. United States v. Fountain, 993
F.2d 1136, 1139 (4th Cir. 1993).
Here, we are convinced that the district court did not clearly err in
deciding that Shipman intended to distribute the bags of marijuana in
his possession, although the issue is a close one. Shipman’s conduct
and that of his brother, as observed by the officer, indicated a desire
to remain at Weaver Court rather than to leave, as a customer might
once he had made a drug purchase.2
The government suggests that the decision may be affirmed on an
alternative ground, which we conclude has merit. Title 18, § 844(a)
provides that simple possession of any controlled substance is punish-
able by a term of imprisonment of up to three years if the defendant
commits the offense after two prior convictions for any state drug
offense have become final. Shipman was convicted of simple posses-
sion of marijuana in state court on July 23, 2001, and on December
3, 2002. Therefore, even if he did not intend to distribute the mari-
juana in his possession, Shipman committed a federal felony by pos-
sessing it at all. We may "affirm a [sentence enhancement] on the
basis of ‘any conduct [in the record] that independently and properly
should result in an increase in the offense level’ by virtue of the
enhancement." United States v. Garnett, 243 F.3d 824, 830 (4th Cir.
2001) (quoting United States v. Ashers, 968 F.2d 411, 414 (4th Cir.
1992)).
For the reasons discussed, we affirm the sentence imposed by the
district court. We dispense with oral argument because the facts and
2
Shipman relies on an unpublished case from the Sixth Circuit, in
which the appeals court decided that the defendant’s possession of a pis-
tol and 7.5 grams of marijuana packaged in six "nickel bags" did not
demonstrate an intent to distribute. United States v. Woods, 2001 WL
1631855 (6th Cir. Dec. 17, 2001) (unpublished). However, Woods testi-
fied at sentencing about his marijuana use. Shipman merely asked the
court to infer his intent to use the marijuana rather than sell it.
UNITED STATES v. SHIPMAN 5
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED