US v. Nathaniel Irving Corwin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00197-WO-1 Copies to all parties and the district court/agency. [999918731].. [16-4003]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4003

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NATHANIEL IRVING CORWIN,
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. (1:15-cr-00197-WO-1)

Submitted:

August 25, 2016

Decided:

August 29, 2016

Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, John A. Duberstein,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant.
Michael A. DeFranco, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Nathaniel

Irving

Corwin

appeals

his

conviction

and

114-

month sentence imposed following his guilty plea to possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2012).

On appeal, Corwin’s counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating

that

there

are

questioning

whether

Sentencing

Guidelines

no

the

meritorious

district

issues

court

enhancement

for

erred

in

under

Guidelines Manual § 2K2.1(a)(2) (2014).

appeal

but

imposing

U.S.

a

Sentencing

Corwin has filed a pro

se supplemental brief, echoing counsel’s argument regarding the
USSG

§ 2K2.1(a)(2)

Guidelines

enhancement

enhancement

Government

has

declined

under
to

and
USSG

file

a

also

challenging

his

§ 2K2.1(b)(6)(B).
response

brief.

The
For

the

reasons that follow, we affirm.
In

considering

a

sentencing

court’s

Guidelines

calculations, we review issues that turn primarily on factual
determinations for clear error and issues that turn primarily on
legal interpretations of the Guidelines de novo.

United States

v. Dowell, 771 F.3d 162, 170 (4th Cir. 2014).
unpreserved
error.

challenges

to

Guidelines

calculations

We consider
for

plain

United States v. Hamilton, 701 F.3d 404, 410 (4th Cir.

2012); see Henderson v. United States, 133 S. Ct. 1121, 1126-27
(2013) (describing standard).
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The Guidelines prescribe a base offense level of 24 for a
defendant convicted of a § 922(g) offense who “committed any
part of the instant offense subsequent to sustaining at least
two

felony

convictions

controlled
2K2.1

substance

cmt.

reference

n.1
to

of

either

offense.”

(defining

USSG

a

crime

USSG

violence

§ 2K2.1(a)(2);

“controlled

§ 4B1.2).

of

Among

substance
other

or

see

a

USSG

offense”

by

requirements,

a

controlled substance offense must be “punishable by imprisonment
for

a

term

exceeding

one

year.”

USSG

§ 4B1.2(b);

§ 2K2.1 cmt. n.1 (defining “felony conviction”).

see

USSG

Corwin and his

counsel assert that Corwin’s prior North Carolina conviction for
possession with intent to sell or deliver marijuana does not
qualify as a felony offense under United States v. Simmons, 649
F.3d

237,

248-50

(4th

Cir.

2011)

(en

banc),

as

his

maximum

presumptive term of 17 months’ imprisonment included a mandatory
9-month period of post release supervision.

However, as counsel

concedes, this argument is squarely foreclosed by our recent
decision in United States v. Barlow, 811 F.3d 133, 140 (4th Cir.
2015), cert. denied, 136 S. Ct. 2041 (2016).
state

conviction

was

punishable

by

Because Corwin’s

imprisonment

for

a

term

exceeding one year, it was properly classified as a felony under
USSG § 2K2.1 and used as a predicate to enhance Corwin’s base
offense level.

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Corwin also contends that the court erred in imposing an
enhancement under USSG § 2K2.1(b)(6)(B), based on its finding
that

he

possessed

a

firearm

in

connection

with

the

felony

offense of possession with intent to sell or deliver heroin.
Under

the

possessed

Guidelines,
“in

the

connection

requirement
with”

a

that

felony

the

firearm

be

drug

offense

is

satisfied “in the case of a drug trafficking offense in which a
firearm is found in close proximity to drugs, drug-manufacturing
materials, or drug paraphernalia,” as the firearm necessarily
“has

the

potential

of

facilitating

another

felony

offense.”

USSG § 2K2.1 cmt. n.14(B); see United States v. Jenkins, 566
F.3d

160,

163

(4th

Cir.

2009).

The

“in

connection

with”

requirement is satisfied when “the firearm had some purpose or
effect

with

respect

to

the

other

offense,

including

if

the

firearm was present for protection or to embolden the actor.”
United

States

v.

McKenzie-Gude,

671

F.3d

452,

464

(4th

Cir.

2011) (internal quotation marks omitted).
Here, the record reveals that Corwin voluntarily stipulated
to this enhancement as part of his plea agreement.

Although his

stipulation was not binding on the district court, see Fed. R.
Crim. P. 11(c)(1)(B), we find no error, plain or otherwise, in
the

court’s

proximity

of

application
Corwin’s

of

the

three

enhancement,
firearms

4

to

in

light

heroin

of

and

the
drug

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paraphernalia

and

of

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evidence

indicating

the

firearms’

protective purpose.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case and have found no meritorious issues for
appeal.

We

therefore

affirm

the

district

court’s

judgment.

This court requires that counsel inform Corwin, in writing, of
the right to petition the Supreme Court of the United States for
further review.

If Corwin 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.

Counsel’s motion must state that a copy thereof

was served on Corwin.
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.

AFFIRMED

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