United States v. Reshard Moses

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0407n.06
No. 12-1904 FILED
Apr 25, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
RESHARD MARTELL MOSES, ) DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
BEFORE: COLE and COOK, Circuit Judges; KATZ, District Judge.*
PER CURIAM. Reshard Martell Moses appeals the district court’s sentence.
Moses pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). The district court determined that Moses’s base offense level was 20. The court added
four levels under U.S.S.G. § 2K2.1(b)(6)(B) because Moses possessed the firearm in connection with
the separate felony offense of possessing with intent to distribute marijuana. The court subtracted
three levels for acceptance of responsibility, resulting in a total offense level of 21. Based on the
total offense level of 21 and a criminal history category of III, Moses’s guidelines range of
imprisonment was 46 to 57 months. The district court sentenced Moses to 48 months in prison.
*
The Honorable David A. Katz, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 12-1904
United States v. Moses
On appeal, Moses argues that the district court erred in two respects by applying the four-
level enhancement under § 2K2.1(b)(6)(B): (1) the prosecution failed to demonstrate that he
intended to distribute the marijuana found in his possession; and (2) the prosecution failed to
demonstrate a connection between his possession of the firearm and the marijuana offense. The
offense-level enhancement under § 2K2.1(b)(6)(B) applies where a defendant “possessed any firearm
or ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The
prosecution must establish by a preponderance of the evidence a connection between the firearm and
an independent felony. United States v. Taylor, 648 F.3d 417, 432 (6th Cir. 2011). We review the
district court’s factual findings for clear error and accord due deference to the court’s determination
that the firearm was possessed in connection with another felony offense. Id.The district court did not clearly err in determining that Moses committed the independent
felony of possessing with intent to distribute marijuana. See United States v. Shields, 664 F.3d 1040,
1044 (6th Cir. 2011). The quantity and packaging of the marijuana found on Moses was consistent
with distribution, and Moses had tested negative for marijuana in four drug tests conducted as part
of his parole in the two months prior to his arrest. Based on that evidence, the district court could
reasonably conclude that Moses possessed the marijuana for the purpose of distributing it rather than
for his personal use. Further, given that officers found the marijuana and firearm in Moses’s clothing
and the incident occurred at approximately 4:00 a.m. in the parking lot of a lounge, the district court
did not err in determining that there was a sufficient connection between the firearm and the
marijuana offense to warrant an enhancement under § 2K2.1(b)(6)(B). See U.S.S.G. § 2K2.1 cmt.
n.14(B)(ii); United States v. Angel, 576 F.3d 318, 322-23 (6th Cir. 2009).
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No. 12-1904
United States v. Moses
Accordingly, we affirm the district court’s sentence.
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