US v. Derrick Rushing
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:16-cr-00005-JAB-1. Copies to all parties and the district court. [1000020530]. [16-4406]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4406
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK ANTWON RUSHING,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:16-cr-00005-JAB-1)
Submitted:
February 2, 2017
Before MOTZ and
Circuit Judge.
WYNN,
Circuit
Decided:
Judges,
and
February 9, 2017
HAMILTON,
Senior
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Kathleen A. Gleason,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant.
Ripley Rand, United States Attorney, Robert A.
J. Lang, Assistant United States Attorney, Alanna M. Jereb,
Third Year Law Student, Winston-Salem, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Derrick Antwon Rushing appeals from the 50-month sentence
imposed following his guilty plea for possession of a firearm by
a
felon
(2012).
in
violation
of
18
U.S.C.
§§ 922(g)(1),
924(a)(2)
Rushing disputes the district court’s application of a
four-level
firearm
sentencing
in
enhancement
connection
with
for
using
another
specifically, felony sale of cocaine.
or
possessing
offense
felony
a
—
We affirm.
We review the district court’s factual determinations in
applying
the
error.
United
States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012).
Where a
defendant
Sentencing
“[u]sed
or
Guidelines
possessed
connection
with
another
enhancement
shall
apply.
§ 2K2.1(b)(6)(B) (2015).
for
any
felony
U.S.
clear
firearm
or
offense,”
Sentencing
ammunition
a
in
four-level
Guidelines
Manual
The “in connection with” element is
satisfied “if the firearm facilitated, or had the potential of
facilitating”
the
other
offense,
or
if
protection or to embolden the actor.”
566
F.3d
160,
n.14(A).
162
(4th
Cir.
it
“was
present
for
United States v. Jenkins,
2009);
see
USSG
§ 2K2.1
cmt.
Where the other felony is a drug trafficking offense,
a firearm “found in close proximity to drugs, drug-manufacturing
materials,
or
drug
paraphernalia
.
.
.
necessarily
potential of facilitating another felony offense.”
F.3d
at
163
(internal
quotation
2
marks
omitted)
has
the
Jenkins, 566
(citing
USSG
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§ 2K2.1 cmt. n.14(B)).
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This element is not satisfied, however,
where the presence of the firearm is “the result of accident or
coincidence.”
United States v. Blount, 337 F.3d 404, 411 (4th
Cir. 2003) (internal quotation marks omitted).
Rushing contends that there is no evidence that the firearm
was used in connection with the sale of cocaine because the
firearm was only discovered two days after his last known drug
sale, and there is no proof that he possessed the firearm at the
residence when drug transactions occurred.
before
us,
reasonably
however,
inferred
we
conclude
that
Rushing
connection with drug trafficking.
Based on the record
that
the
possessed
district
the
court
firearm
in
The gun was recovered in the
same room as drug paraphernalia and nearby drug residue, and
Rushing
admitted
protection.
n.14(B).
that
he
acquired
the
gun
for
personal
See Jenkins, 566 F.3d at 162-63; USSG § 2K2.1 cmt.
Therefore, the district court’s decision to apply the
§ 2K2.1(b)(6)(B) enhancement was not clearly erroneous.
Accordingly, we affirm the district court’s judgment.
dispense
with
contentions
are
oral
argument
adequately
because
presented
in
the
the
facts
We
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
3
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