US v. James Dominique Posey
Filing
UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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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
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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
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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
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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
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