US v. William Todd

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:09-cr-00231-BO-1 Copies to all parties and the district court/agency. [998459547] [10-4123]

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US v. William Todd Doc. 0 Case: 10-4123 Document: 27 Date Filed: 11/04/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4123 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM EDWARD TODD, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:09-cr-00231-BO-1) Submitted: October 19, 2010 Decided: November 4, 2010 Before GREGORY and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Vacated and remanded by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, James E. Todd, Jr., Research and Writing Attorney, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Michael G. James, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 10-4123 Document: 27 Date Filed: 11/04/2010 Page: 2 PER CURIAM: William Edward Todd appeals from his 110-month sentence imposed pursuant to his guilty plea to possession of a firearm by a convicted felon. On appeal, Todd asserts that (1) the district court applied the wrong legal standard when overruling pursuant his to objection to the enhancement of his sentence U.S. Sentencing Guidelines Manual 2K2.1(b)(6) (2009), for possession of the firearm in connection with another felony offense; and (2) if the court applied the right standard, the court's factual findings were clear error. remand for further proceedings. Todd sold marijuana to a confidential informant from his residence. warrant for On the same day, officers executed a search Todd's apartment and recovered marijuana, We vacate and ammunition, and a shotgun. After Todd was arrested, he admitted to selling marijuana and told officers that his uncle brought the shotgun over to his residence for safekeeping. was in the bedroom closet. 1 Section 2K2.1(b)(6) provides for a four-level The shotgun enhancement if a defendant "used or possessed any firearm or ammunition 1 in connection with another felony offense." It is unclear whether the shotgun was loaded or unloaded. The presentence report states that the shotgun was unloaded, but the Government averred at sentencing that it was loaded. 2 Case: 10-4123 Document: 27 Date Filed: 11/04/2010 Page: 3 Application Note 14(A) to 2K2.1 states that subsection (b)(6) applies "if the firearm . . . facilitated, or had the potential of facilitating, another felony offense . . . ." We review de See novo the legal application of the Guidelines to the facts. United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Whether a defendant has actually possessed a firearm in connection with another felony offense is a factual question reviewed for clear error. 824, 829 (4th Cir. 2001). We have explained that the requirements of United States v. Garnett, 243 F.3d 2K2.1(b)(6) are "satisfied if the firearm had some purpose or effect with respect to the other offense, including if the firearm was present for protection or to embolden the actor." United States v. Jenkins, 566 F.3d 160, 162 (4th Cir.) (internal quotation marks, citation, and alteration omitted), cert. denied, 130 S. Ct. 330 (2009). However, "the requirement is not satisfied if the firearm was present due to mere accident or coincidence." Id. at 163 (internal quotation marks omitted). Application Note 14(B) to USSG 2K2.1(b)(6) further provides that, "in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia[,]" application of subsection (b)(6) "is warranted because the presence of the firearm has the potential of facilitating another felony offense . . . ." 3 See Case: 10-4123 Document: 27 Date Filed: 11/04/2010 Page: 4 also United States v. Lipford, 203 F.3d 259, 267 (4th Cir. 2000) (finding firearm was used to facilitate drug trafficking where gun's involvement was not "spontaneous" or "coincidental"). We have analogized the "in connection with" language in 2K2.1(b)(6) to the definition of "in relation to" in 18 U.S.C. 924(c) (2006). Garnett, 243 F.3d at 828; United In States v. Nale, 101 F.3d 1000, 1003-04 (4th Cir. 1996). Smith v. United States, 508 U.S. 223 (1993), "the Supreme Court determined that the `in relation to' language of 924(c) could be satisfied by proving that a weapon facilitated or potentially facilitated the offense." Nale, 101 F.3d at 1003. Additionally, this court, in the context of 924(c), has stated that a firearm is used "in relation to" another felony offense "if the firearm was present for protection or to embolden the actor." Lipford, 203 F.3d at 266. Accordingly, the Government was required to prove more than the mere presence of the firearm. It must also prove that the firearm facilitated or had the tendency to facilitate Todd's drug sales, was present for protection, or served to embolden him. Our review of the record convinces us that the district The district court likely applied the wrong legal standard. court repeatedly and incorrectly stated that all the Guideline required was possession of the firearm contemporaneous with the felony drug sale. In addition, the court erroneously stated 4 Case: 10-4123 Document: 27 Date Filed: 11/04/2010 Page: 5 that contemporaneous possession was sufficient because the Guidelines had a lower threshold than 18 U.S.C. 924(c) (2006). 2 The court did not make any findings that the firearm emboldened Todd, that it was present for his protection, or that the drugs and the firearm were found in close proximity. district court likely applied Guidelines the wrong legal his Because the standard sentence in was calculating Todd's range, procedurally unreasonable. United States v. Lewis, 606 F.3d 193, 200 (4th Cir. 2010) (improperly calculating the Guidelines range is "significant procedural error"). Accordingly, we vacate Todd's sentence and remand for the district court to recalculate the Guidelines range using the appropriate legal standard. We express no opinion as to whether the facts of the case supported an enhancement under the correct legal facts standard. and legal We dispense with are oral argument because in the the contentions adequately presented The Government asserts that the court was merely stating that the standard of proof was different in a Guidelines calculation than when determining the underlying conviction; however, the burden of proof was undisputed at the hearing, and a fair reading of the district court's statements supports the conclusion that the court erroneously believed that less of a connection needed to be shown to support the Guidelines enhancement than to support a 924(c) conviction. 5 2 Case: 10-4123 Document: 27 Date Filed: 11/04/2010 Page: 6 materials before the court and argument would not aid the decisional process. VACATED AND REMANDED 6

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