US v. Tracey Brite

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:14-cr-00002-FL-1. Copies to all parties and the district court. [999625299]. [14-4935]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4935

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRACEY JERMONT BRITE,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Louise W. Flanagan,
District Judge. (2:14-cr-00002-FL-1)

Submitted:

June 8, 2015

Decided:

July 22, 2015

Before WILKINSON, DUNCAN, and HARRIS, Circuit Judges.

Affirmed by unpublished opinion. Judge Duncan wrote the opinion
in which Judge Wilkinson and Judge Harris joined.

Thomas P. McNamara, Federal Public Defender, Robert E. Waters,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.
Thomas G.
Walker, United States Attorney, Jennifer P. May-Parker, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:
Tracey

Brite

appeals

possession of a firearm.

his

87-month

sentence

for

felony

He argues that because the record does

not support the finding that he “used or possessed” a firearm “in
connection

with

another

felony

offense,”

U.S.S.G.

§ 2K2.1(b)(6)(B), the district court erred by applying a fourlevel sentencing enhancement.

We find this argument unavailing,

and consequently affirm Brite’s sentence.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the material before this court and argument will not
aid the decisional process.
In June 2011, confidential informants began reporting to
officers of the Pasquotank County Sheriff’s Office (“PCSO”) that
Brite was storing and distributing drugs from his home in Elizabeth
City, North Carolina.

On September 26, 2011, officers of the PCSO

and the Beaufort County Sheriff’s Office (“BCSO”) detained two
suspects and seized over one kilogram of cocaine.

One of the

suspects advised the officers that they purchased the cocaine from
Brite.

That same day, officers conducted a “knock and talk” at

Brite’s home, during which, officers reported, Brite admitted to
storing and distributing drugs.

The officers searched the house

and found a loaded .357 caliber revolver, two digital scales, a
glass

measuring

container,

and

two

bottles

of

creatine

monohydrate--a bodybuilding powder the government contends Brite
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used to cut cocaine for sale.

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One of the scales and the glass

measuring container later tested positive for cocaine residue; the
revolver was not tested.
Despite Brite’s admissions and the evidence gathered from his
house, the officers who searched his house did not arrest or charge
him.

Instead, according to officer reports, Brite agreed to

cooperate, and the officers let him go with instructions on how to
contact them.

However, when the officers returned to Brite’s

residence several days later, they discovered that he had moved to
Maryland.
By May 20, 2014, Brite returned to Elizabeth City and was
arrested for felony possession of the revolver recovered in the
September 26, 2011 search of his house.

According to reports of

the arresting officers and testimony from a special agent with the
Bureau of Alcohol, Tobacco, and Firearms (“ATF”) who interviewed
Brite, after his arrest, Brite again admitted that he sold drugs,
describing himself as a “small-time dealer.”

J.A. 52.

A U.S.

Probation Officer prepared a Pre-Sentence Report (“PSR”), which
calculated a total offense level of 25, including a four-level
enhancement

for

“possess[ing

a]

firearm

and

ammunition

in

connection with another felony, that offense being the Unlawful
Possession with Intent to Distribute a Controlled Substance.” J.A.
88 (citing U.S.S.G. § 2K2.1(b)(6)(B)).

The PSR calculated a

Sentencing Guidelines range of 70 to 87 months.
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Brite objected to all references in the PSR that he ever
distributed or admitted to distributing controlled substances and
to all references to any cooperation agreement.

At his detention

hearing, Brite admitted to possessing the revolver as a convicted
felon, stating that he needed it “for protection,” though he denied
that it had any connection to drug trafficking activity.
51.

J.A. 50-

Relying on Brite’s statement that he needed the revolver “for

protection,” his self-description as a “drug dealer,” his use of
the creatine powder as a cutting agent, and the cocaine residue
recovered from his house, the district court concluded that Brite
distributed drugs and that the revolver was connected to those
activities.

Accordingly,

the

court

applied

a

four-level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) and imposed a sentence
of 87 months.

Brite timely appealed.

On appeal, Brite contends that evidence of cocaine residue
near a firearm alone is insufficient to support a four-level
enhancement for possession of a firearm in connection with felony
distribution of cocaine.

We conclude that the district court did

not clearly err in its findings and affirm Brite’s sentence.
We review the factual findings underlying a district court’s
sentencing decision for clear error.
592 F.3d 621, 626 (4th Cir. 2010).

United States v. Manigan,
Under the clearly erroneous

standard, “[i]f the district court's account of the evidence is
plausible in light of the record viewed in its entirety, the court
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of appeals may not reverse.”

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Belk v. Charlotte-Mecklenburg Bd. of

Educ., 269 F.3d 305, 318 (4th Cir. 2001) (quoting Anderson v. City
of Bessemer City, 470 U.S. 564, 573-74 (1985)).

“The burden is on

the government to prove by a preponderance of the evidence that
the sentencing enhancement should be applied.”

United States v.

Steffen, 741 F.3d 411, 414 (4th Cir. 2013).

While the mere

possession of a firearm while involved in distributing drugs is
not

sufficient

to

support

an

enhancement

under

U.S.S.G.

§ 2K2.1(b)(6)(B), evidence that the firearm was used to protect
the drugs or that it “emboldened” the defendant will support the
enhancement.

United States v. Jenkins, 566 F.3d 160, 162-63 (4th

Cir. 2009).
Here, Brite’s description of the evidence is misleading.

The

district court relied on more than the cocaine residue recovered
from

Brite’s

house--though

“compelling.”
the

record

J.A. 61.

on

which

it

did

note

that

the

residue

was

While Brite contests other elements of

the

district

court

relied--such

as

his

purported self-description as a “drug dealer” and his use of the
creatine powder as a cutting agent--a reasonable factfinder, fully
crediting police and ATF testimony for the government, could find
that

Brite

distributed

cocaine.

Similarly,

given

Brite’s

statement that he used the revolver “for protection,” a reasonable
factfinder could find that the revolver emboldened Brite or that
he used it to protect his stock of drugs for sale.
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Even if we

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held the evidence here to be sufficient to support the opposite
conclusions--an

analysis

we

need

not

and

do

not

undertake--

“[w]here there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous.”
Belk, 269 F.3d at 318 (quoting Anderson, 470 U.S. at 574).
For the foregoing reasons, the sentencing order of the
district court is
AFFIRMED.

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