US v. James Dominique Posey

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00466-WO-1 Copies to all parties and the district court/agency. [999792291].. [15-4477]

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Appeal: 15-4477 Doc: 30 Filed: 04/11/2016 Pg: 1 of 6 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4477 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES DOMINIQUE POSEY, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:14-cr-00466-WO-1) Submitted: March 22, 2016 Before MOTZ and Circuit Judge. DIAZ, Circuit Decided: Judges, and April 11, 2016 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Louis C. Allen, III, Federal Public Defender, Kathleen A. Gleason, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, Kyle D. Pousson, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4477 Doc: 30 Filed: 04/11/2016 Pg: 2 of 6 PER CURIAM: James Dominique Posey appeals the 108-month sentence imposed following his guilty plea to possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2012). We conclude that none of the issues raised on appeal has merit, and we affirm. I Posey premises his first two claims on his theory that two prior state convictions that factored into the calculation of his Guidelines range were erroneously treated as felonies. First, he argues that the district court improperly assigned him base offense convictions substance level of 24 either offense. § 2K2.1(a)(2) because a crime See (2014). he of U.S. had two violence Sentencing Specifically, Posey prior or a felony controlled Guidelines contends Manual that the district court improperly included as one of the two felonies his 2012 North Carolina state conviction intent to sell and deliver marijuana. base offense level would be 20. of possession with If Posey is correct, his See USSG § 2K2.1(a)(4)(A). In a related claim, Posey contends that he was incorrectly assessed marijuana three criminal conviction and possession of cocaine. history a 2012 points state for both conviction the for 2012 felony See USSG §§ 4A1.1(a) (assigning three criminal history points “for each prior sentence of imprisonment 2 Appeal: 15-4477 Doc: 30 Filed: 04/11/2016 Pg: 3 of 6 exceeding one year and one month”). should have received convictions. only two Under Posey’s theory, he points for each of these See USSG § 4A1.1(b) (assigning two points “for each prior sentence of imprisonment of at least sixty days not counted in [§ 4A1.1](a)”). To resolve these claims, we turn to our recent decision in United States v. Barlow, 811 F.3d 133 (4th Cir. 2015), in which we addressed the impact of the Justice Reinvestment Act of 2011, 2011 N.C. Sess. Laws 192 (JRA), on the North Carolina Structured Sentencing Act. “[T]he Structured Sentencing Act and its statutory tables determine if a crime is punishable by a term of imprisonment of more than one year.” Id. at 137; see United States v. Simmons, 649 F.3d 237, 240, 249-50 (4th Cir 2011) (en banc). all The JRA “mandates terms of post-release supervision for convicted felons without parole.” except those serving Barlow, 811 F.3d at 137. sentences of life Posey contends that because the JRA required his placement on supervision for both the cocaine and marijuana offenses before he had been imprisoned for one year, neither offense was a felony. Thus, his proper base offense level was 20, and he should have received only two criminal history points for each of these offenses. We prior reiterated term of in Barlow imprisonment that, in qualifies determining as a whether felony, a Simmons requires us to “ask only what term of imprisonment the defendant 3 Appeal: 15-4477 Doc: 30 Filed: 04/11/2016 Pg: 4 of 6 was exposed to for his conviction, not the most likely duration of his imprisonment.” Id. at 140. renders supervision post-release We held that “state law part of the term of imprisonment [and that] each of Barlow’s convictions, for which he faced a nineteen-month term of imprisonment, qualified as a felony conviction.” Posey was Id. sentenced to 8-19 months for the marijuana conviction and to 6-17 months for the cocaine conviction. Barlow, these were both felony convictions. the district court correctly assigned Under Thus, we hold that three criminal history points for each conviction and properly determined that Posey’s base offense level was 24. II Because Posey used the firearm to facilitate the separate crime of felony promotion of prostitution, his offense level was increased under USSG § 2K2.1(b)(6)(B), which provides for a four-level enhancement if the defendant “used or possessed any firearm . . . in connection with another felony offense.” The enhancement is designed “to punish more severely a defendant who commits a dangerous separate by the felony presence offense of a that firearm.” is rendered United more States v. Jenkins, 566 F.3d 160, 164 (4th Cir. 2009) (internal quotation marks omitted). Posey asserts warranted. 4 that the enhancement was not Appeal: 15-4477 Doc: 30 Filed: 04/11/2016 Pg: 5 of 6 A firearm is possessed “in connection with” another offense “if the firearm . . . facilitated, or had the potential of facilitating, another felony offense.” USSG § 2K2.1 cmt. n.14(A); see United States v. Blount, 337 F.3d 404, 411 (4th Cir. 2003). “[T]he firearm must have some purpose or effect with respect to the crime; its presence or involvement cannot be the result Hampton, of 628 accident F.3d or 663 654, coincidence.” (4th Cir. United 2010) States (alteration v. and internal quotation marks omitted). Here, officers discovered Posey in a car parked just outside a hotel room whose occupant had reported a disturbance. Officers observed Posey retrieve something from under the driver’s seat and then heard a metallic sound on the pavement, where Posey had bent over. Officers discovered a loaded handgun under the driver’s side of the vehicle. police that Posey had taken her to Posey’s girlfriend told the prostitution with the occupant of the room. hotel to engage in Posey admitted to officers following his arrest that he had gone to get the gun after he left the woman in the hotel room with the customer. We hold that the district court did not err in finding that the firearm facilitated, or had the potential to facilitate, the offense of promoting prostitution. The firearm would have encouraged the payment of money owed and provided protection to Posey. 5 Appeal: 15-4477 Doc: 30 Filed: 04/11/2016 Pg: 6 of 6 III We therefore affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6

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