United States v. Moffitt

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4809
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY LASHAWN MOFFITT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00066-FDW)
Submitted: January 24, 2008 Decided: March 28, 2008
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Remanded by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Peter Adolf, Emily
Marroquin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Adam Morris, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Lashawn Moffitt appeals the 102-month sentence
imposed after he pled guilty to one count of possession of a
firearm after having been convicted of a crime punishable by more
than one year of imprisonment, in violation of 18 U.S.C. § 922(g)
(2000). In the presentence report (PSR), the probation officer
recommended a two-level enhancement pursuant to U.S. Sentencing
Guidelines Manual (USSG) § 2K2.1(b)(4) (2006) because the firearm
was stolen, and a four-level enhancement pursuant to USSG
§ 2K2.1(b)(6) because the firearm was used in connection with
another felony offense. After a three-level reduction for
acceptance of responsibility, Moffitt’s total offense level was
twenty-seven, and his prior criminal conduct placed him in criminal
history category IV. The resulting sentencing range was 100 to 120
months.
Moffitt filed several objections to the PSR. Among other
arguments, he contested the enhancement for use of the firearm in
connection with another felony. He argued that the assault that
originated police involvement in his case was not a felony but a
simple assault under North Carolina law, and he did not possess the
firearm in connection with the assault because he did not exhibit
the firearm until after the assault had ended. At sentencing, the
district court concluded that Moffitt’s conduct at his girlfriend’s
house prior to his arrest satisfied the elements of 18 U.S.C.
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§ 113(a)(3) (2000), which prohibits, as a felony offense, assault
with a deadly weapon in the special maritime and territorial
jurisdiction.* The district court also found that the firearm was
used in connection with Moffitt’s assault on his girlfriend,
overruled his objection, and sentenced him to 102 months of
imprisonment.
On appeal, among other arguments, Moffitt asserts that
the district court erred in enhancing his offense level for using
the firearm in connection with another felony offense. The
Government responds, urging affirmance. Because we conclude that
the district court’s basis for imposing this enhancement is legally
insufficient, we remand for the court to consider whether the
record provides any other grounds for imposing this enhancement.
This court reviews a district court’s factual findings at
sentencing for clear error and its legal determinations de novo.
United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).
A determination that there are sufficient facts to impose a
§ 2K2.1(b)(6) enhancement is a factual finding. See United
States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001) (government
has burden of proving facts to support § 2K2.1(b)(5) enhancement by
preponderance of the evidence and district court’s fact finding is
reviewed for clear error); United States v. Nale, 101 F.3d 1000,
*
The Government does not dispute that Moffitt’s conduct at his
girlfriend’s residence is not a felony under North Carolina law.
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1004 & n.3 (4th Cir. 1996). This deferential standard of review
requires reversal only if this court is “left with the definite and
firm conviction that a mistake has been committed.” United
States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting
Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).
Section 2K2.1(b)(6) provides for a four-level enhancement
if the defendant used or possessed any firearm or ammunition in
connection with another felony offense. This finding encompasses
two requirements: that the defendant committed “another felony”
and that he possessed the firearm “in connection with” the other
felony. United States v. Blount, 337 F.3d 404, 410 (4th Cir.
2003). “‘Another felony offense’, for purposes of subsection
(b)(6), means any federal, state, or local offense, other than the
explosive or firearms possession or trafficking offense, punishable
by imprisonment for a term exceeding one year, regardless of
whether a criminal charge was brought, or a conviction obtained.”
USSG § 2K2.1, comment. (n.14(C)). 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.”
Garnett, 243 F.3d at 829 (citing Smith v. United States, 508 U.S.
223, 237 (1993)); USSG § 2K2.1, comment. (n.14(A)).
In this case, the district court applied the enhancement
based on its conclusion that the other felony offense was assault
with a deadly weapon in violation of 18 U.S.C. § 113(a)(3). We
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conclude that this finding is clearly erroneous. The question of
whether a particular place is within the special maritime and
territorial jurisdiction of the United States is an element of a
§ 113(a) offense. United States v. Bello, 194 F.3d 18, 22-23 (1st
Cir. 1999). In this case, the parties do not dispute, and the
district court recognized, that the assault committed by Moffitt on
his girlfriend did not occur in an area of federal jurisdiction.
We therefore conclude that, even if Moffitt’s actions constituted
an aggravated assault as described in § 113(a)(3), such actions do
not constitute an offense that is punishable as a felony under
federal law because there is no federal jurisdiction to prosecute
Moffitt for those actions.
Our review of the record indicates that there may be an
alternate basis for imposing the § 2K2.1(b)(6) enhancement. See
United States v. Navarro, 476 F.3d 188, 190 & n.3 (3d Cir. 2007)
(finding that, although Government conceded the point, appellant’s
simple possession combined with prior drug conviction established
another felony offense under § 2K2.1(b)(5)). Because the PSR did
not address this possible basis and the parties have not had an
opportunity to assert any objections, we conclude that a remand to
allow the district court to reconsider the enhancement is proper.
Accordingly, we remand for reconsideration of the
§ 2K2.1(b)(6) enhancement. We decline to address Moffitt’s other
arguments at this time. Upon completion of the district court’s
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reconsideration, the record will be returned to this court for
further review.
REMANDED
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