US v. Derrick Rushing


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 16-4406 Doc: 25 Filed: 02/09/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4406 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERRICK ANTWON RUSHING, Defendant -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 WYNN, Circuit Decided: Judges, and February 9, 2017 HAMILTON, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4406 Doc: 25 Filed: 02/09/2017 Pg: 2 of 3 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 Appeal: 16-4406 Doc: 25 Filed: 02/09/2017 § 2K2.1 cmt. n.14(B)). Pg: 3 of 3 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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