US v. Warren Moseley
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to dismiss appeal [999484686-2] Originating case number: 1:13-cr-00282-JAB-1 Copies to all parties and the district court/agency. [999672925].. [14-4307]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4307
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
WARREN DEVIN MOSELEY,
Defendant − Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:13-cr-00282-JAB-1)
Argued:
September 17, 2015
Decided:
October 6, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: William J. Stevens, Bridgman, Michigan, for Appellant.
Clifton Thomas Barrett, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
ON BRIEF: Ripley
Rand, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellant
cocaine
Warren
base.
When
Moseley
the
pleaded
district
court
guilty
to
sentenced
distributing
Moseley,
it
applied a two-point enhancement for possession of a firearm in
connection with a drug-trafficking crime. U.S.S.G. § 2D1.1(b)(1)
(2014). We hold that ample factual support justified imposition
of the enhancement and thus affirm the judgment. *
I.
On
July
11,
2013,
the
Richmond
County,
North
Carolina
Sheriff’s Office directed a confidential informant to arrange
for the purchase of cocaine base from Moseley. The sale occurred
at
Moseley’s
residence.
The
police
recorded
the
sale
with a
camera hidden in the confidential informant’s clothes. J.A. 1314, 68.
About
executed
kitchen,
one
a
month
search
the
approximately
later,
warrant
officers
32
grams
on
on
13,
Moseley’s
found
(gross
August
a
2013,
residence.
dogfood
weight)
of
the
bag
cocaine
police
In
the
containing
base
and
a
razor blade. They also found digital scales next to a box of
plastic baggies. In the master bedroom, the officers discovered
a 9mm handgun, a magazine, and receipts bearing Moseley’s name.
J.A. 68.
*
The court denies the government’s motion to dismiss the
appeal.
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While
Smith
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the
arrived
explained
to
police
and
her
were
asked
that
a
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searching
what
was
the
residence,
happening.
confidential
informant
Marquita
The
officers
had
recently
purchased drugs at the residence, and that this had prompted a
search for further evidence of drug activity. Smith told the
police that Moseley frequented the residence as he pleased, and
that she and Moseley had a child together. Smith then provided a
written statement to the police saying that only she and Moseley
held a key to the residence and that any drugs or weapons found
there belonged to Moseley. J.A. 68.
The government thereafter obtained a three-count indictment
charging Moseley with (1) distribution of 30.94 grams of cocaine
base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); (2)
possession with the intent to distribute approximately 32 grams
of cocaine base also in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B); and (3) possession of a firearm in furtherance of a
drug-trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A)(i). J.A. 7-8.
On
agreed
October
to
plead
7,
2013,
guilty
Moseley
to
count
struck
one
a
in
plea
bargain.
exchange
for
He
the
government’s promise to move for dismissal of counts two and
three. The district court accepted Moseley’s guilty plea that
same day. J.A. 16-22, 33-34.
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In preparation for sentencing, a probation officer prepared
the
customary
presentence
investigation
report
(“PSR”).
Among
other things, the PSR contained a two-point enhancement pursuant
to
U.S.S.G.
§
2D1.1(b)(1)
for
possession
of
a
firearm
in
connection with a drug-trafficking crime. J.A. 69. After taking
this
enhancement
consideration,
and
the
PSR
the
other
recommended
relevant
a
factors
sentence
of
February
120
25,
into
to
150
2014,
the
months. J.A. 86.
At
the
sentencing
hearing,
on
district court asked defense counsel if he had reviewed the PSR
with Moseley. J.A. 39. Defense counsel confirmed that he had,
and that Moseley had only one objection. Moseley claimed that
the PSR specified incorrectly the length of time he had served
for
a
prior
conviction.
The
district
court
sustained
this
objection. This reduced Moseley’s criminal history category from
V
to
IV.
And
this
reduction
in
turn
lowered
Moseley’s
recommended sentencing range to 100 to 125 months. J.A. 39-47.
Moseley did not object to or otherwise mention the firearm
enhancement during the sentencing hearing. The government and
the district court did not refer to it either. J.A. at 38-55. At
the conclusion of the hearing, the district court confirmed its
ruling as to Moseley’s criminal history objection, found that
the Guidelines calculations were appropriate, took account of
the Guidelines recommendation on an advisory basis, considered
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the § 3553(a) factors, and then sentenced Moseley to 100 months
of incarceration and four years of supervised release. J.A. 5152.
Later,
on
April
8,
2014,
the
district
court
filed
a
Statement of Reasons in which it adopted the PSR except for the
erroneous criminal history specification. J.A. Supp. 1-4. Final
judgment
was
entered
that
same
day.
J.A.
57.
Moseley
timely
appealed. J.A. 63.
II.
A.
Moseley’s sole challenge in his appeal is to the adequacy
of the factual support underlying the firearm enhancement in
U.S.S.G. § 2D1.1(b)(1). Our review of challenges to a district
court’s
application
of
the
Sentencing
Guidelines
follows
familiar lines: we review “questions of law de novo and findings
of fact for clear error.” United States v. King, 673 F.3d 274,
281
(4th
Cir.
2012).
Because
Moseley
failed
to
preserve
the
issue he now raises, however, our review is for plain error.
Federal Rule of Criminal Procedure 52(b) permits appellate
courts
to
review
unpreserved
issues
only
if
those
issues
constitute (1) actual “error[s]” (2) that are “plain” and (3)
that
“affect[]
Moreover,
the
substantial
Supreme
rights.”
Court
has
Fed.
R.
directed
Crim.
lower
P.
52(b).
courts
to
exercise their discretion to grant relief only if “‘the error
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seriously affects the fairness, integrity or public reputation
of
judicial
proceedings.’”
United
States
v.
Ramirez-Castillo,
748 F.3d 205, 212 (4th Cir. 2014) (quoting United States v.
Olano, 507 U.S. 725, 732 (1993)).
B.
Moseley
notes
that
a
sentence
may
be
procedurally
unreasonable and thus subject to reversal if the district court
bases it on “clearly erroneous facts” or “fail[s] to adequately
explain” its grounds. United States v. Morace, 594 F.3d 340, 345
(4th Cir. 2010) (quoting Gall v. United States, 552 U.S. 38, 51
(2007)). Moseley contends that the district court fell short of
procedural reasonableness because it “did not make findings to
support
the
conclusion”
that
“possession
of
the
pistol
was
connected with drugs.” Appellant’s Br. 6.
Moseley’s argument fails because the district court both
found the necessary facts and explained its sentence. A district
court
“may
accept
any
undisputed
portion
of
the
presentence
report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A).
“[W]hen a defendant fails to properly object to the relevant
findings in his PSR, the government meets its burden of proving
those facts by a preponderance of the evidence, and the district
court ‘is free to adopt the findings of the presentence report
without more specific inquiry or explanation.’” United States v.
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Revels, 455 F.3d 448, 451 n.2 (4th Cir. 2006) (quoting United
States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990)).
In
this
case,
the
PSR
findings
with
regard
to
the
9mm
handgun discovered at Moseley’s residence were undisputed and
Moseley accordingly did not object to them. And after addressing
the PSR’s erroneous criminal history specification, the district
court was plainly entitled to adopt the handgun-related findings
along with the rest of PSR by confirming that the Guidelines
recommendation was correctly calculated. J.A. 51. The district
court’s Statement of Reasons later made this adoption explicit.
J.A.
Supp.
at
1-4.
Finally,
at
the
close
of
the
sentencing
hearing, the district court confirmed that it had considered all
of the relevant factors and that its sentence was sufficient,
but
not
greater
than
necessary,
to
achieve
the
purposes
of
federal sentencing law. J.A. 51-52.
C.
The facts amply support the trial court’s application of
the
enhancement.
offense
level
The
should
Guidelines
“increase
by
provide
2
that
levels”
a
if
defendant’s
“a
dangerous
weapon (including a firearm) was possessed” in connection with
the defendant’s drug-trafficking crime. U.S.S.G. § 2D1.1(b)(1).
The Guidelines commentary states that this enhancement “should
be
applied
if
the
weapon
was
present,
unless
it
is
clearly
improbable that the weapon was connected with the offense.”
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§ 2D1.1 cmt. n.11(A). This commentary is authoritative unless it
is inconsistent with the Constitution, a federal statute, or a
plain reading of the Guidelines. United States v. Harris, 128
F.3d 850, 852 (4th Cir. 1997) (citing Stinson v. United States,
508 U.S. 36, 45 (1993)). Taken together, then, the Guidelines
provision
and
the
associated
commentary
establish
a
two-part
process for determining whether the enhancement is warranted.
First,
present.”
the
We
government
have
must
interpreted
show
this
that
a
provision
“weapon
to
mean
was
the
government must prove by a “preponderance of evidence that the
weapon was possessed in connection with drug activity that was
part of the same course of conduct or common scheme as the
offense of conviction.” United States v. Manigan, 592 F.3d 621,
628-29 (4th Cir. 2010). Importantly, the government need not
demonstrate
that
the
drug
crime
and
the
gun
possession
were
“precisely concurrent acts.” Id. at 629. It must show only that
the gun is “readily available to protect either the participants
themselves during the commission of the illegal activity or the
drugs and cash involved in the drug business . . . .” Id.; see
also United States v. Nelson, 6 F.3d 1049, 1056 (4th Cir. 1993),
overruled on other grounds by Bailey v. United States, 516 U.S.
137 (1995) (approving of enhancement because guns and drugs were
stored at the same residence).
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Second,
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after
the
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government
makes
its
showing,
the
defendant may explain why it is “clearly improbable” that the
weapon was connected to his drug crime. As an example of what
such
an
explanation
could
entail,
the
Guidelines
commentary
notes that the enhancement should not apply if the defendant
possessed an “unloaded hunting rifle” located “in the closet.”
§ 2D1.1 cmt. n.11(A). There is an obvious difference between a
handgun and a hunting rifle -- the former is a widely used “tool
of
the
drug
trade”
and
those
who
possess
handguns
are
more
likely to be proper candidates for the enhancement. Manigan, 592
F.3d at 629.
Here, the government easily met its burden. The district
court found that a 9mm handgun and magazine were discovered in
the master bedroom of the residence where Moseley committed his
drug offense. Next to the handgun lay receipts bearing Moseley’s
name. The kitchen of the same residence contained drugs and drug
paraphernalia. Finally, the mother of Moseley’s child, and the
only person other than Moseley who held a key to the residence,
informed
the
police
that
any
drugs
or
weapons
found
at
the
residence belonged to Moseley. J.A. 68.
Moreover, Moseley did not attempt to rebut the government’s
evidence by arguing that the firearm’s connection to the crime
was clearly improbable. The firearm in this case was a handgun,
a type of gun recognized as an “indicia of drug dealing.” United
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States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999). Finally, that
one month passed between the recorded sale and the search of the
residence
is
not
enough
to
disassociate
the
handgun
from
Moseley’s crime of conviction where, as here, the additional
drugs and drug paraphernalia found at the residence showed that
Moseley was engaged in an ongoing drug-trafficking scheme.
III.
The district court was not clearly erroneous in finding
that the firearm in this case was connected to Moseley’s drugtrafficking crime. And that the district court’s conclusion was
not clearly erroneous means that there was no error here, much
less a plain error requiring us to undertake the rest of the
four-part inquiry from Olano. We therefore affirm the district
court’s judgment.
AFFIRMED
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