US v. Richard Brewington

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:15-cr-00285-H-1 Copies to all parties and the district court/agency. [1000060430].. [16-4244]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4244

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD LAWRENCE BREWINGTON,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Malcolm J. Howard,
Senior District Judge. (5:15-cr-00285-H-1)

Submitted:

February 17, 2017

Decided:

April 12, 2017

Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
John Stuart Bruce, United States Attorney, Jennifer
P. May-Parker, First Assistant United States Attorney, Phillip
A. Rubin, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Richard Lawrence Brewington appeals his 48-month sentence
for five counts of possession of a firearm by a convicted felon
and aiding and abetting.

Brewington argues that the district

court erred in applying a sentencing enhancement for engaging in
the trafficking of firearms.

For the reasons that follow, we

vacate the court’s judgment and remand for resentencing.
“In determining whether a district court properly applied
the advisory [Sentencing] Guidelines, including application of
any

sentencing

enhancements,

we

review

the

district

court’s

legal conclusions de novo and its factual findings for clear
error.”

United States v. Layton, 564 F.3d 330, 334 (4th Cir.

2009).
Sentencing
two

The

enhancement

Guidelines

conditions

are

Manual
met.

for

trafficking

§ 2K2.1(b)(5)
One,

the

firearms,

(2015),

defendant

U.S.

applies
must

if

have

“transported, transferred, or otherwise disposed of two or more
firearms to another individual, or received two or more firearms
with the intent to transport, transfer, or otherwise dispose of
firearms to another individual.”

USSG § 2K2.1 cmt. n.13(A)(i).

Two, the defendant must have “[known] or had reason to believe
that such conduct would result in the transport, transfer, or
disposal of a firearm to an individual . . . whose possession or
receipt of the firearm would be unlawful; or . . . who intended
to use or dispose of the firearm unlawfully.”
2

USSG § 2K2.1 cmt.

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n.13(A)(ii).

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Brewington does not dispute that he transferred

the necessary number of firearms, but he argues that there was
insufficient evidence to satisfy the knowledge requirement.
Having carefully reviewed the record, we agree that the
evidence

before

the

district

court

was

insufficient

to

demonstrate that Brewington knew or had reason to believe that
the

firearms

recipient

would

be

intended

to

Accordingly,

we

resentencing

without

enhancement.

vacate

possessed
use

or

unlawfully,

dispose

Brewington’s

application

of

of

them

sentence
the

or

and

firearm

that

their

unlawfully.
remand

for

trafficking

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.
VACATED AND REMANDED

3