US v. Markus Harri

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:12-cr-00381-BO-1 Copies to all parties and the district court/agency. [999313972].. [13-4554]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4554

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARKUS MAURICE HARRIS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:12-cr-00381-BO-1)

Submitted:

February 27, 2014

Decided:

March 12, 2014

Before MOTZ, AGEE, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Markus Maurice Harris appeals the 115-month sentence
imposed following his guilty plea to possession of a firearm and
ammunition

as

§ 922(g)(1)
district

a

convicted

(2012).

court’s

enhancement

for

On

felon,
appeal,

application
possession

in

Harris

of

of

a

violation

a

of

18

challenges

four-level

firearm

in

U.S.C.

only

the

Guidelines

connection

with

another felony offense, pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) § 2K2.1(b)(6)(B) (2012).

For the reasons that

follow, we affirm.
In

considering

whether

a

district

court

properly

imposed a Guidelines enhancement, we review factual findings for
clear error and legal determinations de novo.

United States v.

Chandia, 675 F.3d 329, 337 (4th Cir. 2012).

We will find a

court’s factual finding clearly erroneous only “if we are left
with the definite and firm conviction that a mistake has been
committed.”
Cir.

2013)

permissible

United States v. Crawford, 734 F.3d 339, 342 (4th
(quotation
views

of

marks
the

omitted).
evidence,

“Where
the

between them cannot be clearly erroneous.”

there

are

factfinder’s

two

choice

Anderson v. City of

Bessemer City, 470 U.S. 564, 574 (1985).
An
appropriate

enhancement
when

a

under

firearm

or

USSG

§ 2K2.1(b)(6)(B)

ammunition

possessed

by

is
a

defendant “facilitated, or had the potential of facilitating,
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another felony offense.”
felony

offense”

is

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USSG § 2K2.1 cmt. n.14(A).

defined

as

“any

federal,

“Another

state,

or

local

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).

The

purpose of Section 2K2.1(b)(6) is “to punish more severely a
defendant who commits a separate felony offense that is rendered
more dangerous by the presence of a firearm.”

United States v.

Jenkins,

(quotation

566

F.3d

160,

164

(4th

Cir.

2009)

marks

omitted).
The

requirement

that

the

firearm

be

possessed

“in

connection with” another felony “is satisfied if the firearm had
some

purpose

including

or

if

the

effect

with

firearm

embolden the actor.”

respect

was

to

present

the

for

other

offense,

protection

or

to

United States v. McKenzie-Gude, 671 F.3d

452, 464 (4th Cir. 2011) (quotation marks omitted).

However,

“the requirement is not satisfied if the firearm was present due
to mere accident or coincidence.”
(quotation

marks

omitted).

Jenkins, 566 F.3d at 163
The

Guidelines

commentary

specifically provides that a defendant possesses a firearm in
connection
trafficking
proximity

with

another

offense
to

drugs,

in

felony
which

a

“in

the

firearm

drug-manufacturing

case
is

of

found

materials,

a
in
or

drug
close
drug

paraphernalia . . . because the presence of the firearm has the
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facilitating

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potential

of

[that

drug-trafficking]

offense.”

USSG § 2K2.1 cmt. n.14(B).

felony

The Government bears the

burden of establishing the propriety of a Guidelines enhancement
by a preponderance of the evidence.

United States v. Blauvelt,

638 F.3d 281, 293 (4th Cir. 2011).
The

district

court

imposed

the

enhancement

after

finding that Harris possessed the firearm in connection with a
drug trafficking offense.

On appeal, Harris argues that the

Government failed to meet its burden to establish the requisite
connection

between

the

drugs

and

thoroughly

reviewed

the

record

the

and

firearm.

conclude

court’s finding was not clearly erroneous.

that

We
the

have
trial

The gun was found on

the driver’s side floorboard of the vehicle Harris had been in
immediately prior to his arrest, and was thus easily accessible
to Harris, who had been in the front passenger seat.

Further, a

large amount of cash was found on Harris’ person, and Harris
conceded ownership of the gun and what the court determined was
a “distribution” amount of marijuana.
the same bag as a digital scale.
court’s

finding

trafficking.

that

Harris

The marijuana was held in

This evidence supported the
was

engaged

in

marijuana

See, e.g., United States v. Collins, 412 F.3d 515,

519 (4th Cir. 2005) (listing factors from which to infer intent
to

distribute,

including

“the

quantity

of

the

drugs,”

“the

packaging,” “where the drugs are hidden,” and “the amount of
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cash seized with the drugs”); United States v. Carrasco, 257
F.3d 1045, 1048 (9th Cir. 2001) (recognizing that “scales are
well-known

tools

for

the

packaging

and

sale

of

drugs,”

and

collecting cases).
The fact that the firearm was accessible to Harris
while he possessed the marijuana in the vehicle, and the fact
that the cash and the ammunition were both found on Harris’
person at the time of his arrest, suggest a connection between
the

drugs

and

the

firearm’s

purpose.

See

United

States

v.

Blount, 337 F.3d 404, 411 (4th Cir. 2003) (noting relevance of
gun’s accessibility to finding it facilitated another offense).
When

viewed

in

light

of

Harris’

concomitant

possession

of

distribution paraphernalia, the evidence supported the finding
that the presence of the firearm in proximity to the drugs was
more than “mere accident or coincidence,” see Jenkins, 566 F.3d
at

163

embolden

(quotation
or

marks

protect

omitted),

Harris’

drug

but

rather

trafficking.

was

used

Because

to
the

record was adequate to support a finding that Harris possessed
the

firearm

conclude

the

in

connection

district

with

court

a

did

felony
not

err

drug
in

offense,
imposing

we
the

enhancement.
Accordingly, we affirm the district court’s judgment.
We

dispense

with

oral

argument

5

because

the

facts

and

legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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