US v. Hubert Messer
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to remand case [999852310-2]. Originating case number: 2:13-cr-00196-1. Copies to all parties and the district court/agency. .. [15-4262]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
HUBERT DWAYNE MESSER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Thomas E. Johnston,
District Judge. (2:13-cr-00196-1)
May 25, 2016
July 25, 2016
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy J. LaFon, CICCARELLO, DEL GIUDICE & LAFON, Charleston,
West Virginia, for Appellant. Joshua Clarke Hanks, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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agreement, to conspiracy to distribute oxycodone, in violation of
21 U.S.C. § 846 (2012), and possession of stolen firearms, in
violation of 18 U.S.C. §§ 922(j), 924(a)(2).
The district court
sentenced Messer to 60 months’ imprisonment, and he now appeals.
California, 386 U.S. 738 (1967), questioning whether the district
court erred in applying sentencing enhancements for possession of
a dangerous weapon pursuant to U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2015) and maintaining a premises for the purpose of
ineffective for failing to challenge the factual basis of the
guidelines, we review legal conclusions de novo, and factual
findings for clear error.”
United States v. White, 771 F.3d 225,
235 (4th Cir. 2014) (internal alteration and quotation marks
omitted), cert. denied, 135 S. Ct. 1573 (2015).
“Applying a clear
error standard, we ‘will not reverse a lower court's finding of
fact simply because we would have decided the case differently.’”
United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)
(quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)).
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can find clear error only if, ‘on the entire evidence, we are left
with the definite and firm conviction that a mistake has been
Id. (quoting Easley, 532 U.S. at 242) (internal
enhancement applies “if the weapon was present unless it is clearly
improbable that the weapon was connected with the offense.”
§ 2D1.1 cmt. n.11(A).
Although the burden initially falls on the
Government to establish possession of a weapon in connection with
drug trafficking, once it has done so, the burden shifts to the
defendant to establish that a connection between possession of the
Manigan, 592 F.3d at 630 n.8.
“In assessing whether a defendant
possessed a firearm in connection with relevant drug activity, a
factors,” such as “the type of firearm involved,” “the location or
proximity of a seized firearm,” and “the settled connection between
firearms and drug activities.”
Id. at 629.
We conclude that the district court did not clearly err in
determining that the firearms were possessed in connection with
Messer’s drug trafficking.
Messer stipulated that he stored at
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recognized that handguns are “a tool of the drug trade,” and “a
drug trafficker is much more likely to utilize a handgun” than a
long gun in his trafficking activities.
the firearms and the drugs that Messer trafficked were stored in
the same barn and in close proximity to each other, supporting the
inference that the firearms were possessed in connection to that
See United States v. Harris, 128 F.3d 850, 852 (4th
Cir. 1997) (noting that we have previously “approved an enhancement
when the guns and drugs were located in the same home”).
Turning to Messer’s next argument, a two-level enhancement is
maintains a premises (i.e. a building, room, or enclosure) for the
purpose of manufacturing or distributing a controlled substance,
including storage of a controlled substance for the purpose of
USSG § 2D1.1 cmt. n.17.
The commentary to this
controlled substance need not be the sole purpose for which the
premises was maintained, but must be one of the defendant’s primary
or principal uses for the premises.”
It is undisputed that Messer maintained his barn; the only
dispute is whether one of the barn’s primary purposes was drug
Messer argues that because the barn was primarily
used for the legitimate purpose of housing horses, its primary
purpose could not be drug trafficking.
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trafficking, and firearms derived from drug trafficking in the
barn, and at least sometimes conducted his drug transactions in
This evidence is sufficient to establish that the
premises were primarily used for drug trafficking.
States v. Bell, 766 F.3d 634, 638 (6th Cir. 2014) (“Drug storage
on the property and transactions on the property will usually
suffice [to establish primary use.]”).
Furthermore, although the barn was frequently used to house
and care for horses, a premises can have more than one primary
See United States v. Sanchez, 710 F.3d 724, 729 (7th
Cir.) (noting that “the enhancement clearly contemplates that
premises can have more than one principal use. . . .
inquiry is whether the drug transactions were a second primary use
of the premises or were instead merely a collateral use”), rev’d
on other grounds, 134 S. Ct. 146 (2013); United States v. Miller,
698 F.3d 699, 707 (8th Cir. 2012) (holding enhancement applies
“when a defendant uses the premises for the purpose of substantial
drug-trafficking activities, even if the premises was also her
family home at the times in question”).
Turning to Messer’s pro se filing, his claim of ineffective
assistance of counsel is only cognizable on direct appeal if it
conclusively appears on the record that counsel was ineffective.
United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014).
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succeed on a claim of ineffective assistance of counsel, Messer
performance prejudiced the defense.”
466 U.S. 668, 687-88 (1984).
Strickland v. Washington,
The record does not establish
ineffective assistance of counsel.
Therefore, Messer’s claim is
not cognizable on direct appeal and it should be raised, if at
all, in a 28 U.S.C. § 2255 (2012) motion.
Messer has also filed a pro se “motion for consideration/or
to remand for resentencing based on Amendment 782 and the Supreme
Court ruling in Johnson v. United States, 135 S. Ct. 2551 (2015).”
Because neither Amendment 782 nor the Supreme Court’s ruling in
Johnson affords Messer relief, we deny his motion.
In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious issues for appeal.
therefore affirm Messer’s convictions and sentence.
requires that counsel inform Messer, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Messer requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation.
motion must state that a copy thereof was served on Messer.
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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.
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