US v. Torben Jackson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00258-RJC-10 Copies to all parties and the district court/agency. [999634578].. [14-4883]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4883

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TORBEN LAMONT JACKSON,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., District Judge. (3:13-cr-00258-RJC-10)

Submitted:

July 13, 2015

Decided:

August 5, 2015

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Randolph M. Lee, 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Torben

Lamont

Jackson

pled

guilty

pursuant

to

a

plea

agreement to conspiracy to distribute and possess with intent to
distribute 280 grams or more of cocaine base and 5 kilograms or
more of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846
(2012).

The

district

court

calculated

Jackson’s

Guidelines

range under the U.S. Sentencing Guidelines Manual (2013) at 168
to 210 months’ imprisonment and sentenced him to 168 months’
imprisonment.

On appeal, 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 raising as an issue
for review whether the district court plainly erred in applying
the 2-level enhancement under USSG § 2D1.1(b)(1) for possession
of a firearm.

The Government declined to file a brief and does

not

enforce

seek

to

agreement.

the

appeal

waiver

in

Jackson’s

plea

Jackson was informed of his right to file a pro se

supplemental brief, but he has not done so.

We affirm.

Because Jackson did not object in the district court to the
application of the 2-level enhancement under USSG § 2D1.1(b)(1),
we review counsel’s challenge for plain error.
Hargrove,

625

F.3d

2D1.1(b)(1)

of

increase

defendant’s

dangerous

a

the

170,

weapon

183-84

Cir.

directs

Guidelines

(4th

a

offense

(including

level
a

2

by

firearm)

United States v.
2010).

Section

district
2

court

levels
was

“[i]f

to
a

possessed.”

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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

quotation

F.3d

marks

621,

628-29

omitted),

(4th

“even

in

Cir.

the

2010)

absence

(internal

of

proof

of

precisely concurrent acts, for example, gun in hand while in the
act

of

storing

drugs,

retrieving a gun.”

drugs

in

hand

while

in

the

act

of

United States v. Slade, 631 F.3d 185, 189

(4th Cir. 2011) (internal quotation marks omitted).
To prove that a weapon was present, the Government “need
show

only

that

the

weapon

illegal drug activity.”

was

possessed

during

the

relevant

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

“clearly

improbable.”

Slade,

631 F.3d at 189 (internal quotation marks omitted).
The district court’s application of the 2-level enhancement
under

USSG

presentence

§ 2D1.1(b)(1)
report

is

supported

indicating

that

law

by

information

enforcement

in

the

officials

discovered during the pendency of the conspiracy a stolen Taurus
.357

magnum

firearm

under

Jackson’s
3

mattress

that

Jackson

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admitted was his.
the

time

of

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Jackson possessed 44.7 grams of cocaine at

the

discovery,

and

a

set

of

digital

scales,

“baggies,” and bullets for the firearm were discovered in the
residence that contained the mattress.

At sentencing, Jackson

did not point to any evidence suggesting that the connection
between

the

firearm

and

his

narcotics

offense

improbable,” and this failing continues on appeal.
fails

to

establish

that

the

district

court

was

“clearly

Jackson thus

plainly

erred

in

applying the 2-level enhancement under USSG § 2D1.1(b)(1).
In

accordance

remainder

of

the

with

Anders,

record

in

this

meritorious issues for appeal.
court’s

judgment.

This

we

also
case

have
and

reviewed

have

the

found

no

We therefore affirm the district

court

requires

that

counsel

inform

Jackson, in writing, of the right to petition the Supreme Court
of the United States for further review.
that

a

petition

be

filed,

but

counsel

If Jackson requests
believes

that

such

a

petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation.

Counsel’s motion

must state that a copy thereof was served on Jackson.
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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