US v. Wilbert Maness, Jr.

Filing 920081229

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4188

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILBERT BEN MANESS, JR., Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:07-cr-00221-JAB-1)

Submitted:

November 24, 2008

Decided:

December 29, 2008

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Michael F. Joseph, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Wilbert Ben Maness, Jr., pled guilty to being a felon in possession of a firearm, The in violation court of 18 him U.S.C. to a

§ 922(g)(1) 100-month

(2006). of

district

sentenced of the

term

imprisonment,

the

bottom

advisory

sentencing guidelines range. grounds.

Maness appeals his sentence on two

Finding no reversible error, we affirm. Maness first contends that the district court violated

his Fifth and Sixth Amendment rights by increasing his sentence based upon the uncharged conduct of possession with intent to distribute crack cocaine where that conduct was neither admitted by him nor found by a jury beyond a reasonable doubt. claim is foreclosed by circuit precedent. United Maness' v.

States

Battle, 499 F.3d 315, 322-23 (4th Cir. 2007) ("When applying the Guidelines in an advisory manner, the district court can make factual findings using the preponderance of the evidence

standard."), cert. denied, 128 S. Ct. 1121 (2008). Maness also asserts that the district court erred by applying a four-level enhancement for possession of a firearm in connection with another felony offense--possession with intent to distribute 1.6 grams of crack cocaine. Guidelines Manual § 2K2.1(b)(6) (2006). See U.S. Sentencing He contends that the

amount of crack was not large enough to infer an intent to

2

distribute

and

notes

that

the

crack

was

not

packaged

for

distribution and that he did not possess drug paraphernalia. We review a sentence for abuse of discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007). See

"The first

step in this review requires us to `ensure that the district court committed no significant procedural error, such as . . . improperly calculating . . . the Guidelines range.'" United

States v. Osborne, 514 F.3d 377, 387 (4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert. denied, 128 S. Ct. 2525 (2008). then consider the substantive reasonableness of the We

sentence

imposed, taking into account the totality of the circumstances. Gall, 128 S. Ct. at 597. This court reviews the district court's factual

findings for clear error. F.3d 824, 828 for (4th Cir.

Id.; United States v. Garnett, 243 2001) of a (reviewing firearm in for clear error with

enhancement

possession

connection

another felony offense).

"Clear error occurs when, although

there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Harvey,

532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation marks and citations omitted). The clearly erroneous "standard plainly

does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have 3

decided the case differently."

Anderson v. City of Bessemer

City, 470 U.S. 564, 573 (1985) (internal quotations omitted). Section 2K2.1(b)(6) provides for a four-level

enhancement if the defendant used or possessed any firearm or ammunition finding in connection two with another felony that offense. the This

encompasses

requirements:

defendant

committed "another felony" and that he possessed the firearm "in connection with" the other felony. * F.3d 404, 410 (4th Cir. 2003). purposes of subsection (b)(6), United States v. Blount, 337

"`Another felony offense', for 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 cmt. n.14(C);

see United States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005) (discussing elements of offense of possession with intent to distribute controlled substance). With these standards in mind, we have carefully

reviewed the record on appeal.

Our review leads us to conclude

that the district court did not clearly err in applying the enhancement in USSG § 2K2.1(b)(6). See Anderson, 470 U.S. at

Maness does not challenge the "in connection with" element on appeal.

*

4

574 ("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."). Accordingly, we affirm the district court's judgment. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

5