US v. Samuel McQueen, III
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00275-NCT-1 Copies to all parties and the district court/agency. [998746838].. [11-4422]
Appeal: 11-4422
Document: 23
Date Filed: 12/19/2011
Page: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4422
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL DAVID MCQUEEN, III,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:10-cr-00275-NCT-1)
Submitted:
November 29, 2011
Before NIEMEYER and
Senior Circuit Judge.
GREGORY,
Decided:
Circuit
December 19, 2011
Judges,
and
HAMILTON,
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Gregory Davis,
Senior Litigator, Winston-Salem, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Lisa B. Boggs, Assistant
United
States
Attorney,
Greensboro,
North
Carolina,
for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Date Filed: 12/19/2011
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PER CURIAM:
Samuel
possession
of
§ 922(g)(1)
David
a
firearm
(2006),
imprisonment.
McQueen,
and
by
III,
a
pled
convicted
received
a
guilty
to
felon,
sentence
of
unlawful
18
U.S.C.
112
months
McQueen appeals his sentence, contending that the
district court erred by applying the cross reference in U.S.
Sentencing
Guidelines
Manual
§ 2K2.1(c)(1)(A)
(2010),
and
in
determining the amount of cocaine base (crack) attributable to
him under USSG § 2D1.1.
We affirm.
While he was on probation for a prior drug conviction,
McQueen sold crack on three occasions and was arrested.
In a
search of his apartment, investigators found a loaded stolen
pistol, small amounts of crack and marijuana, plastic baggies,
and a digital scale.
McQueen stated that the firearm was his,
that he had lived in the apartment for two or three months, and
that he sold a quarter-ounce of crack daily while living there.
In
the
presentence
report,
the
probation
officer
recommended
application of the cross reference in § 2K2.1(c)(1)(A) because
McQueen possessed the firearm in connection with another offense
—
drug
trafficking.
McQueen’s
base
offense
calculated pursuant to § 2X1.1 and § 2D1.1.
level
was
thus
Because he admitted
selling approximately fifteen ounces of crack (425 grams) in the
preceding two months, the probation officer recommended a base
offense level of 32, and a 2-level increase for possession of a
2
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Date Filed: 12/19/2011
firearm during the offense.
Page: 3 of 5
USSG § 2D1.1(c)(4), (b)(1).
With a
3-level adjustment for acceptance of responsibility, McQueen’s
total offense level was 31.
He was in criminal history category
III, which resulted in a recommended advisory Guidelines range
of 135-168 months, reduced to 120 months, the statutory maximum
for the § 922(g) offense.
McQueen
See USSG § 5G1.1(a).
disputed
the
application
of
the
cross
reference, and further argued that, even if it was applicable,
he should be held responsible for no more than the crack he
possessed on the day he was arrested.
At sentencing, McQueen
conceded that an enhancement under § 2K2.1(b)(6) for possession
of the firearm in connection with another felony offense would
be correct in his case.
He also conceded that the Guidelines
directed application of the cross reference in subsection (c)(1)
if it yielded a higher offense level, as it did in his case.
The district court applied the cross reference, but
held McQueen responsible for only the quantity he sold during
the month he possessed the firearm.
The court recomputed the
base offense level at 30 and the total offense level at 29.
revised
Guidelines
range
was
108-120
months.
After
The
hearing
argument concerning the sentence and considering the 18 U.S.C.
§ 3553(a)
(2006)
sentencing
factors,
sentence of 112 months imprisonment.
3
the
court
imposed
a
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A
Date Filed: 12/19/2011
sentence
is
reviewed
Page: 4 of 5
for
reasonableness
under
an
abuse of discretion standard, which requires consideration of
both
the
procedural
sentence.
Failing
Gall
to
v.
and
substantive
States,
United
properly
reasonableness
U.S.
calculate
significant procedural error.
552
the
Id.
38,
Guidelines
51
of
a
(2007).
range
is
a
Generally, we review the
district court’s interpretation of a statute de novo.
United
States v. Amaya-Portillo, 423 F.3d 427, 430 (4th Cir. 2005).
In
this case, no error occurred in the district court’s application
of
the
cross
reference.
Application
Note
14(B)
to
§ 2K2.1
states that, when the other offense is a drug offense and the
firearm
is
found
in
close
proximity
to
drugs
or
drug
paraphernalia, “application of subsections (b)(6) and (c)(1) is
warranted because the presence of the firearm has the potential
of
facilitating
respectively.”
another
The
reference
in
offense
or
another
offense,
The firearm was found in a kitchen cabinet where
McQueen kept drugs.
applied.
felony
McQueen conceded that subsection (b)(6)
district
subsection
court
correctly
(c)(1)(A)
because
applied
it
the
resulted
cross
in
a
greater offense level, as directed by the Guidelines commentary.
The district court’s determination of the quantity of
drugs attributable to a defendant is a factual question reviewed
for clear error.
(4th
Cir.
2004).
United States v. Kiulin, 360 F.3d 456, 461
McQueen
contends
4
that
no
evidence
was
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Date Filed: 12/19/2011
Page: 5 of 5
presented to the district court from which it could calculate
the quantity of crack he distributed before his arrest.
In
fact, the district court relied on McQueen’s statement to the
police after his arrest, in which he stated that he sold onequarter ounce of crack per day for two months.
When the amount
of drugs seized “does not reflect the scale of the offense, the
court
shall
substance.”
approximate
the
quantity
USSG § 2D1.1 cmt. n.12.
of
the
controlled
To make the determination,
“the court may consider . . . similar transactions in controlled
substances
by
the
defendant[.]”
Id.
Thus,
the
court’s
determination that McQueen was responsible for 212.7 grams of
crack was not clearly erroneous.
We
district
facts
court.
and
materials
therefore
legal
before
We
affirm
dispense
the
with
sentence
oral
argument
contentions
are
adequately
the
and
argument
court
imposed
by
the
because
the
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED
5
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