US v. Joshua Davi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cr-00013-FL-1 Copies to all parties and the district court/agency. [999471307]. Mailed to: Davis. [14-4202]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4202

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA DAVIS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:13-cr-00013-FL-1)

Submitted:

October 30, 2014

Decided:

November 7, 2014

Before WILKINSON, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Joshua Davis pled guilty to possession of a firearm by
a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924
(2012),

and

was

imprisonment.

sentenced

Davis

to

appeals

a

his

term

of

sentence,

sixty

months’

challenging

the

district court’s application of a four-level increase in offense
level,
§

pursuant

2K2.1(b)(6)

firearm
offense.

had

to

U.S.

(2013),

Sentencing
on

potential

the

based

of

the

Guidelines

court’s

facilitating

finding

Manual
that

another

the

felony

We affirm.
Davis,

a

convicted

felon,

was

arrested

following

a

police chase that ensued when a police officer attempted to stop
the vehicle in which Davis was a passenger.

The officer pursued

the vehicle in response to a tip from a confidential informant
that

Davis

was

traveling

with

a

handgun

and

ammunition.

Officers found a small quantity of counterfeit cocaine on Davis’
person

and

a

loaded

handgun

and

ninety-eight

grams

of

counterfeit crack cocaine wrapped in plastic bags in the back
seat of the car.

Over Davis’ objection, the district court

applied the four-level enhancement under USSG § 2K2.1(b)(6)(B),
because the court found that the firearm had the potential of
facilitating

another

felony

offense,

counterfeit drugs.

2

namely,

distribution

of

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When evaluating Guidelines calculations, we review the
district court’s factual findings for clear error and its legal
conclusions de novo.

United States v. Cox, 744 F.3d 305, 308

(4th Cir. 2014).

We will find clear error only when, “on the

entire

we

evidence[,

are]

left

with

the

definite

conviction that a mistake has been committed.”
quotation marks omitted).
establish
should

by

a

apply

firm

Id. (internal

The burden is on the Government to

preponderance

a

and

sentencing

of

the

evidence

enhancement.

that

the

United

court

States

v.

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

Guidelines

provide

for

a

four-level

enhancement

under USSG § 2K2.1(b)(6)(B) if a defendant “used or possessed
any

firearm

offense.”

or

ammunition

Section

in

connection

2K2.1(b)(6)

is

with

intended

another

“to

felony

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, 566 F.3d 160, 164 (4th Cir. 2009)
(internal

quotation

marks

omitted).

Davis

argues

that

the

district court clearly erred in applying the § 2K2.1(b)(6)(B)
enhancement, because the Government failed to meet its burden of
proving that his possession of the firearm was “in connection”
with another felony offense.
The commentary to § 2K2.1(b)(6)(B) provides that the
enhancement

applies

when

a

firearm
3

possessed

by

a

defendant

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“facilitated,

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or

felony offense.”

had

the

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potential

of

facilitating,

USSG § 2K2.1 cmt. n.14(A).

another

Here, the district

court found that the firearm had the potential to facilitate the
felony

offense

of

distribution

of

counterfeit

drugs.

Many

factors can “lead a fact finder to conclude that a connection
existed between a defendant’s possession of a firearm and his
drug trafficking activity.”

United States v. Lomax, 293 F.3d

701, 705 (4th Cir. 2002).

These include the “type of drug

activity . . . being conducted, accessibility of the firearm,
the type of weapon, whether the weapon is stolen, the status of
the

possession

(legitimate

or

illegal),

whether

the

gun

is

loaded, proximity to drugs or drug profits, and the time and
circumstances

under

which

the

gun

is

found.”

Id.

(internal

quotation marks omitted).
In this case, the loaded handgun and the counterfeit
drugs were found in the back seat of the vehicle, within reach
of Davis, the front seat passenger, who also had counterfeit
crack in his pocket.

It is well established in this circuit

that handguns are a tool of the drug trade.

United States v.

Madigan, 592 F.3d 621, 629 (4th Cir. 2010); United States v.
Ward, 171 F.3d 188, 194 (4th Cir. 1999).

The quantity and

packaging of the counterfeit drugs were also consistent with
drug distribution.
(4th Cir. 1996).

United States v. Lamarr, 75 F.3d 964, 973
Moreover, as the district court noted, selling
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counterfeit drugs is an inherently dangerous activity and it was
reasonable

to

infer

that

the

handgun

was

present

to

protect

Davis as he engaged in trafficking the counterfeit drugs.

See

United States v. McKenzie-Gude, 671 F.3d 452, 463-64 (4th Cir.
2011)

(holding

another

offense

that
for

firearm
purposes

is

possessed

of

in

connection

§ 2K2.1(b)(6)

when

with

it

“was

of

the

present for protection or to embolden the actor”).
We

conclude

that,

under

the

totality

circumstances, the district court did not clearly err in finding
bya preponderance of the evidence that Davis’ possession of the
firearm had the potential to facilitate another felony offense.
Accordingly, we affirm Davis’ sentence.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this Court and argument would
not aid the decisional process.
AFFIRMED

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