US v. John Britt

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999619384-2] Originating case number: 3:14-cr-00069-TLW-1 Copies to all parties and the district court/agency. [999788682].. [15-4088]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4088

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN LANIER BRITT,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Terry L. Wooten, Chief District
Judge. (3:14-cr-00069-TLW-1)

Submitted:

February 10, 2016

Decided:

April 5, 2016

Before DIAZ, THACKER, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant.
William N. Nettles, United States
Attorney, Jimmie Ewing, William E. Day, II, Assistant United
States Attorneys, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
John Lanier Britt appeals the 100-month sentence imposed by
the

district

court

after

he

pled

guilty

to

conspiracy

to

distribute and possess with intent to distribute oxycodone, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012).

Britt’s

counsel has filed a brief pursuant to Anders v. California, 386
U.S.

738

(1967),

stating

that

he

has

found

no

meritorious

grounds for appeal but raising potential issues regarding the
denial of Britt’s request for a downward departure or variance.
Britt has filed a pro se supplemental brief arguing that the
district court erred in calculating his drug quantity, and that
appellate counsel was ineffective for stating that the denial of
his variance request is not a meritorious issue.

We directed

supplemental briefing on the issue of whether the district court
plainly

erred

by

enhancing

Britt’s

possession of a dangerous weapon.
The

sentence

enhancement

sentence

based

on

his

We affirm.

for

possession

of

a

dangerous

weapon applies “if the weapon was present, unless it is clearly
improbable

that

the

weapon

was

connected

with

the

offense.”

U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n.11(A).

“In

assessing whether a defendant possessed a firearm in connection
with relevant drug activity, a sentencing court is entitled to
consider
firearm

several

pertinent

involved,”

“the

factors,”

location
2

or

including
proximity

“the
of

type
a

of

seized

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firearm,” and “the settled connection between firearms and drug
activities.”
Cir. 2010).

United States v. Manigan, 592 F.3d 621, 629 (4th
“For example, the enhancement would not be applied

if the defendant, arrested at the defendant’s residence, had an
unloaded

hunting

n.11(A);

see

rifle

Manigan,

in
592

the

closet.”

F.3d

at

629

USSG
(noting

§ 2D1.1
that

“a

cmt.
drug

trafficker is much more likely to utilize a handgun — as opposed
to a rifle or long gun — due to size and concealability”).
The

defendant

bears

the

burden

of

“show[ing]

that

a

connection between his possession of a firearm and his narcotic
offense is ‘clearly improbable.’”
F.3d

185,

189

(4th

Cir.

2011);

United States v. Slade, 631
cf.

United

States

v.

Gomez-

Jimenez, 750 F.3d 370, 380 (4th Cir.) (affirming application of
§ 2D1.1(b)(1)

enhancement

where

“[u]ndisputed

portions

of

the

PSR g[a]ve every reason to believe that the weapons” seized from
coconspirator’s bedroom in shared residence “were connected to
the

conspiracy”),

cert.

denied,

135

S.

Ct.

305,

384

(2014).

Because Britt did not challenge the application of the weapon
enhancement at sentencing, we review for plain error.

United

States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015);
see Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013)
(discussing plain error standard).
The type of weapon — a shotgun rather than a handgun — is
not dispositive in this case, as Britt dealt drugs from his
3

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home, and thus did not need to covertly carry the firearm on his
person to protect the drugs and drug proceeds.

While the fact

that the shotgun was in Britt’s father’s bedroom rather than
Britt’s bedroom weighs against the enhancement, the fact that it
was loaded with two different types of shot and the lack of
evidence that Britt or his elderly father used it for hunting
support the connection to Britt’s drug activity.
Moreover,
enhancement.

the

PSR

revealed

additional

bases

for

the

See United States v. Basham, 789 F.3d 358, 379

(4th Cir.) (“[W]e are, of course, entitled to affirm on any
ground appearing in the record, including theories not relied
upon or rejected by the district court.” (internal quotation
marks

omitted)),

petition

for

cert.

(U.S. Oct. 16, 2015) (No. 15-6560).

filed,

___

U.S.L.W.

___

The PSR indicated that one

of the purchasers of Britt’s drugs reported that Britt had a
firearm, and ammunition for firearms other than the shotgun was
found throughout Britt’s house.

Furthermore, the PSR expressly

linked a machete to Britt’s drug trafficking activities, and the
machete itself is sufficient to support the enhancement.

See

USSG § 1B1.1 cmt. n.1(D) (defining “dangerous weapon” to include
any “instrument capable of inflicting death or serious bodily
injury”);

USSG

definition).

§ 2D1.1

cmt.

n.11(A)

(incorporating

this

Accordingly, we conclude that the district court

did not err, plainly or otherwise, in applying this enhancement.
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In his pro se supplemental brief, Britt argues that the
district court erred in calculating his drug quantity because
there was no direct evidence that he had sold the pills that
were missing from the prescription bottles seized from his home.
We find that the district court did not err in inferring that
Britt sold the missing pills.

See United States v. Leventine,

277 F.3d 454, 468 (4th Cir. 2002) (affirming enhancement based
on circumstantial evidence).
Finally,

counsel

questions

whether

the

district

court

erroneously denied Britt’s request for a downward variance or
departure,

and

Britt

argues

that

appellate

counsel

ineffective for filing an Anders brief on this issue.

was

We lack

authority to review the district court’s denial of a departure,
and find that Britt has not overcome the presumption that the
district
impose

a

court’s

decision

within-Guidelines

to

deny

his

sentence

variance

was

request

reasonable.

and

United

States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied,
135 S. Ct. 421 (2014).
Accordingly, we conclude that there is no procedural or
substantive

error

imprisonment.

in

Britt’s

sentence

of

100

months’

See Gall v. United States, 552 U.S. 38, 51 (2007)

(discussing review of sentences).

To the extent Britt argues

that appellate counsel was ineffective, we conclude that he has
not

made

the

requisite

showing
5

to

assert

an

ineffective

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assistance claim on direct appeal and that this claim should be
raised, if at all, in a motion under 28 U.S.C. § 2255 (2012).
United

States

v.

Benton,

523

F.3d

424,

435

(4th

Cir.

2008)

(“Ineffective assistance claims are generally not cognizable on
direct

appeal

record

that

. . .

defense

representation.”
In

unless

it

conclusively

counsel

did

not

appears
provide

from

the

effective

(internal quotation marks omitted)).

accordance

with

Anders,

we

have

reviewed

the

entire

record for any further meritorious grounds for appeal and have
found none.

Accordingly, we deny Britt’s motion for new counsel

and affirm the district court’s judgment.

This court requires

that counsel inform Britt, in writing, of his right to petition
the Supreme Court of the United States for further review.

If

Britt requests that a petition be filed, but counsel believes
that such a petition would be frivolous, counsel may move in
this court for leave to withdraw from representation.

Counsel’s

motion must state that a copy thereof was served on Britt.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

6