US v. Adrian Shankle

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief(s) [999570786-2] Originating case number: 3:11-cr-00367-FDW-1. Copies to all parties and the district court/agency. [999596721].. [14-4471]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4471

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADRIAN LAMONTE SHANKLE,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:11-cr-00367-FDW-1)

Submitted:

May 26, 2015

Decided:

June 5, 2015

Before WILKINSON, GREGORY, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Norman Butler, LAW OFFICE OF NORMAN BUTLER, Charlotte, North
Carolina, for Appellant.
Jill Westmoreland Rose, Acting United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Adrian
distribution

Lamonte
of

Shankle

cocaine

pled

base,

in

guilty

to

17

counts

violation

of

21

of

U.S.C.

§ 841(a)(1), (b)(1)(C) (2012) (counts 1 through 15, 19, and 20),
and

was

found

guilty

after

a

jury

trial

of

distribution

of

cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
(count 16), and possession of a firearm by a convicted felon, in
violation

of

18

U.S.C.

§ 922(g)(1)

(2012)

(count

17).

The

district court calculated Shankle’s Guidelines range under the
U.S. Sentencing Guidelines Manual (2012) at 87 to 108 months’
imprisonment and sentenced Shankle to 87 months’ imprisonment.
On appeal, Shankle challenges the district court’s calculation
of

his

Guidelines

range,

arguing

that

the

court

erred

in:

applying the 2-level enhancement under USSG § 2D1.1(b)(1) for
possession of a firearm; applying the 2-level enhancement under
USSG § 2K2.1(b)(4)(A) for a stolen firearm; applying the 4-level
enhancement

under

USSG

§ 2K2.1(b)(6)(B)

for

possession

of

a

firearm in connection with the distribution of cocaine base; and
failing to apply a 2-level reduction under USSG § 3E1.1(a) for
acceptance of responsibility. *

We affirm.

*

Shankle has filed a motion for leave to file a pro se
supplemental brief, along with that brief.
Because Shankle is
represented by counsel who has filed a merits brief, Shankle is
not entitled to file a pro se supplemental brief, and we
therefore deny his motion.
See United States v. Penniegraft,
(Continued)
2

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Section 2D1.1(b)(1) of the Guidelines directs a district
court to increase a defendant’s offense level by 2 levels “[i]f
a dangerous weapon (including a firearm) was possessed.”

The

enhancement should be applied “if the weapon was present, unless
it is clearly improbable that the weapon was connected with the
offense.”

USSG § 2D1.1 cmt. n.11(A).

The enhancement is proper

when the weapon at issue “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) (internal quotation marks
omitted), even “in the absence of proof of precisely concurrent
acts, for example, gun in hand while in the act of storing
drugs, drugs in hand while in the act of retrieving a gun.”
United

States

v.

Slade,

631

F.3d

185,

189

(4th

Cir.

2011)

(internal quotation marks omitted).

To prove that a weapon was

present,

only

possessed

the

Government

during

the

“need

show

relevant

that

illegal

the
drug

weapon

was

activity.”

United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).
The

defendant

bears

the

burden

of

showing

that

a

connection

between his possession of a firearm and his narcotics offense is

641 F.3d 566, 569 n.1 (4th Cir. 2011) (denying motion to file
pro se supplemental brief because defendant was represented by
counsel).

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“clearly

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improbable.”

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Slade,

631

F.3d

at

189

(internal

quotation marks omitted).
We conclude after review of the record and the parties’
briefs

that

court’s

Shankle

has

application

not

of

met

the

this

burden.

2-level

The

district

enhancement

under

USSG § 2D1.1(b)(1) is supported by testimony adduced at trial
and reflected in the revised presentence report that Shankle
sold a loaded 9-millimeter firearm and a quantity of cocaine
base to an undercover officer during the same transaction.

At

sentencing, Shankle did not point to any evidence suggesting
that

the

connection

distribution

was

continues

on

appeal.

argument

that

enhancement

between

“clearly

the

based

We

its

firearm

improbable,”
also

district

on

the

reject
court

and

as

his

this

meritless

erred

consideration

and

in

of

drug

failing
Shankle’s

applying

acquitted

the

conduct.

A district court is free at sentencing to consider acquitted
conduct

in

United States

calculating
v.

Lawing,

a
703

defendant’s
F.3d

229,

Guidelines

241

(4th

Cir.

range.
2012).

Shankle thus fails to establish that the district court clearly
erred

in

applying

USSG § 2D1.1(b)(1).

the

2-level

enhancement

under

See McAllister, 272 F.3d at 234 (stating

standard of review).
Turning

to

Shankle’s

challenge

to

the

district

court’s

refusal to apply a 2-level reduction under USSG § 3E1.1(a) for
4

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acceptance of responsibility, such a reduction to a defendant’s
offense

level

is

warranted

if

he

“clearly

acceptance of responsibility for his offenses.

demonstrates”

USSG § 3E1.1(a).

To receive a reduction under USSG § 3E1.1, the defendant “must
prove by a preponderance of the evidence that he has clearly
recognized

and

affirmatively

for his criminal conduct.”
693

(4th

Cir.

2004)

accepted

personal

responsibility

United States v. May, 359 F.3d 683,

(internal

quotation

marks

omitted).

In determining whether the adjustment is warranted, the district
court

may

consider

whether

the

defendant

has

“truthfully

admitt[ed] the conduct comprising the offense(s) of conviction,
and truthfully admitt[ed] or not falsely den[ied] any additional
relevant conduct for which the defendant is accountable under
[USSG] § 1B1.3.”

USSG § 3E1.1 cmt. n.1(A).

We conclude after review of the record and the parties’
briefs that the district court did not clearly err in denying
Shankle a 2-level reduction under USSG § 3E1.1(a) for acceptance
of responsibility.
of review).
for

the

See May, 359 F.3d at 688 (stating standard

Shankle did not admit guilt of or responsibility

criminal

conduct

comprising

counts

16

and

17.

We further reject as meritless Shankle’s claim that the district
court never considered application note 2 to USSG § 3E1.1 and
never

considered

his

admission

5

to

the

probation

officer

of

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participation in and acceptance of responsibility for the 17
counts of drug distribution to which he pled guilty.
Finally,

with

respect

to

Shankle’s

challenges

to

the

district court’s application of the 2-level enhancement under
USSG § 2K2.1(b)(4)(A)
enhancement

under

for

USSG

a

stolen

firearm

§ 2K2.1(b)(6)(B)

and

for

the

4-level

possession

of

a

firearm in connection with another felony offense, we need not
resolve whether the court erred in applying the enhancements.
Assuming without deciding that application of these enhancements
was

error,

such

error

was

harmless.

See

United

States

v.

McManus, 734 F.3d 315, 318 (4th Cir. 2013) (“[S]entencing error
is subject to harmlessness review.

Sentencing error is harmless

if the resulting sentence is not longer than that to which the
defendant would otherwise be subject.” (internal quotation marks
and alterations omitted)).

A review of the record shows that

application of these enhancements did not affect the Guidelines
range or Shankle’s sentence.
The district court applied the enhancements to count 17,
yielding an adjusted offense level for that count of 20.
court,

however,

calculating

did

Shankle’s

not

rely

Guidelines

on

this

range.

offense
Rather,

The

level
the

in

court

relied on the adjusted offense level of 28 calculated for the
group encompassing counts of distribution of cocaine base — the
greatest of the adjusted offense levels.
6

This offense level and

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Shankle’s Category II criminal history result in a Guidelines
range of 87 to 108 months’ imprisonment, and Shankle received a
prison

term

enhancements

at

the

under

bottom

USSG

of

that

range.

§§ 2K2.1(b)(4)(A),

Without

(6)(B),

the

Shankle’s

offense level would remain the same as that calculated by the
district

court.

Accordingly,

any

error

in

applying

the

Accordingly, we affirm the district court’s judgment.

We

enhancements was harmless.

dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

7