US v. Jerome Green

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00042-MOC-3 Copies to all parties and the district court/agency. [999569514].. [14-4412]

Appeal: 14-4412

Doc: 27

Filed: 04/22/2015

Pg: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4412

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEROME GREEN, a/k/a JR,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:13-cr-00042-MOC-3)

Submitted:

February 27, 2015

Before WYNN and
Circuit Judge.

DIAZ,

Circuit

Decided:

Judges,

and

April 22, 2015

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Steven Meier, MEIER LAW, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-4412

Doc: 27

Filed: 04/22/2015

Pg: 2 of 5

PER CURIAM:
Jerome Green appeals his conviction and 57-month sentence
imposed following his guilty plea to possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012).
On

appeal,

Green’s

counsel

has

filed

a

brief

pursuant

to

Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
the district court erred in imposing a four-level enhancement
under U.S.S.G. § 2K2.1(b)(6)(B).
brief

similarly

challenges

the

§ 2K2.1(b)(6)(B) enhancement.
file a response brief.

Green’s supplemental pro se
imposition

of

the

U.S.S.G.

The Government has declined to

Following our careful review of the

record, we affirm.
In reviewing Sentencing Guidelines calculations, we review
the district court’s factual findings for clear error and its
legal conclusions de novo.
308 (4th Cir. 2014).
entire

evidence,”

we

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

Clear error occurs only when, “on the
are

“left

with

the

definite

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

and

firm

Id. (internal

The Government bears the burden of

proving by a preponderance of the evidence that the court should
apply a Guidelines enhancement.

United States v. Blauvelt, 638

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

2

Appeal: 14-4412

Doc: 27

Filed: 04/22/2015

Pg: 3 of 5

The Guidelines provide for a four-level upward adjustment
if the defendant “used or possessed any firearm or ammunition in
connection

with

§ 2K2.1(b)(6)(B).

another

felony

offense,”

U.S.S.G.

The enhancement applies where “the firearm or

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

U.S.S.G. § 2K2.1 cmt. n.14(A).

The

purpose of a U.S.S.G. § 2K2.1(b)(6) enhancement 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, 566 F.3d 160, 164 (4th Cir. 2009)
(internal quotation marks omitted).
The requirement that a firearm be possessed “in connection
with”

another

felony

“is

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.”
(4th

United States v. McKenzie-Gude, 671 F.3d 452, 463-64

Cir.

2011)

(internal

quotation

marks

omitted).

This

requirement is not satisfied, however, where “the firearm was
present due to mere accident or coincidence.”
at

163

(internal

quotation

marks

omitted).

Jenkins, 566 F.3d
The

Guidelines

specifically provide that the enhancement should be applied “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.”

U.S.S.G. § 2K2.1 cmt. n.14(B).
3

Appeal: 14-4412

Doc: 27

Filed: 04/22/2015

Pg: 4 of 5

Here, the district court found that Green possessed the
firearm in connection with the offense of possession with intent
to

distribute

marijuana.

Green

and

his

codefendants

were

apprehended in a vehicle containing a backpack with 150.8 grams
of

marijuana,

both

loose

and

packaged

consistent with the intent to sell.

into

smaller

units

Although it was on the

driver-side floorboard, the backpack was in close proximity to
Green, the front passenger.

Two sets of digital scales and a

large amount of cash in small denominations were located in the
center console, accessible to all three occupants.

All three

occupants had firearms concealed within the car, positioned so
as to be easily available.

These facts are consistent with a

finding that the occupants of the vehicle jointly possessed the
marijuana with intent to distribute and used the firearms in
connection with that trafficking offense.

See United States v.

Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (describing factors to
consider in determining whether a firearm furthered or advanced
drug trafficking); United States v. Burgos, 94 F.3d 849, 873
(4th

Cir.

1996)

(en

banc)

(describing

possession

in

drug

trafficking context).
While Green asserts that the evidence was insufficient to
support a finding that he knew the marijuana was in the vehicle,
the

record

support

the

contains

sufficient

district

court’s

circumstantial

finding.
4

Because

evidence
the

to

court’s

Appeal: 14-4412

Doc: 27

finding

was

Filed: 04/22/2015

not

clearly

Pg: 5 of 5

erroneous,

we

find

no

error

in

the

court’s imposition of the enhancement.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
therefore affirm Green’s conviction and sentence.

We

This court

requires that counsel inform Green, in writing, of the right to
petition

the

Supreme

Court

of

the

United

States

for

further

review.

If Green requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel
may

move

in

representation.

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Green.
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

5