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UNPUBLISHED PER CURIAM OPINION filed.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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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