UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4949
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRIAN PERSON,
Defendant - Appellant.
No. 04-4849
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRIAN PERSON,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
District Judge. (CR-03-186)
Submitted: September 28, 2005 Decided: November 2, 2005
Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Kearns
Davis, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
Brian Person was convicted by a jury of possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was
sentenced to a term of fifty-seven months imprisonment. Person
appeals his sentence, contending that the district court erred in
finding that he possessed the firearm in connection with another
felony offense, U.S. Sentencing Guidelines Manual § 2K2.1(b)(5)
(2003). He also maintains that, because the enhancement was based
on judicial fact-finding, his sentence violated the Sixth Amendment
under United States v. Booker, 125 S. Ct. 738 (2005). We affirm
the district court’s determination that Person possessed the
firearm in connection with drug trafficking; however, we vacate the
sentence and remand for resentencing consistent with Booker.
On February 13, 2003, shortly after midnight, Person was
stopped by a police officer for improperly displaying his vehicle
license plate in the back window. Person was alone in the vehicle.
He gave the officer his driver’s license, but hesitated before
producing the vehicle registration. On the officer’s second
request, Person opened the glove compartment. The officer saw a
pistol inside. Person told the officer the gun belonged to a
friend. Person was arrested for carrying a concealed weapon and
transported to the county jail. After Person was removed from the
back seat of the officer’s vehicle, the officer found a small bag
containing four grams of cocaine under the rear seat cushion. The
- 3 -
officer had searched his vehicle at the beginning of his shift, and
had not transported anyone but Person that day. Person was
initially charged with the state offenses of felony possession of
a firearm by a felon and felony possession with intent to
sell/deliver cocaine. These charges were dismissed after Person
was indicted for the instant federal offense.
At trial, Person’s friend, Drew Krawiec, testified that
the gun belonged to him. Krawiec said he had placed the gun in the
glove compartment of Person’s car when they traded cars on
February 11, 2003, so that Person could install a car stereo in his
vehicle. He said he forgot to retrieve the gun when he got his car
the next day. Under cross-examination, Krawiec said he believed
that he had locked the glove compartment, as he usually did in his
own car. He said that, two days later, he remembered that he had
left the gun in Person’s car. By then, Person had been arrested.
Person did not testify.
At the sentencing hearing in September 2004, the district
court determined that a base offense level of 20 applied under U.S.
Sentencing Guidelines Manual § 2K2.1(a)(2) (2003). Over Person’s
objection, the court added a four-level increase under
§ 2K2.1(b)(5) for use of the firearm in connection with another
felony offense, which was possession of cocaine with intent to sell
or deliver. The final offense level was 24. Person was in
- 4 -
criminal history category II, with a guideline range of 57-71
months. The court imposed a sentence of fifty-seven months.
Person first contends that the court erred in finding
that he possessed the firearm in connection with drug trafficking.
In this circuit, the phrase “in connection with,” as used in
§ 2K2.1(b)(5), is treated as analogous to the phrase “in relation
to,” as used in 18 U.S.C.A. § 924(c) (West 2000 & Supp. 2005). See
United States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001). A
firearm is used or possessed “in relation to” another offense if
it, at a minimum, “facilitates the offense by providing a sense of
protection or intimidation . . . .” Smith v. United States, 508
U.S. 223, 238 (1993). The firearm “must have some purpose or
effect with respect to the . . . crime; its presence or involvement
cannot be the result of accident or coincidence.” Id. at 238; see
also United States v. Blount, 337 F.3d 404, 411 (4th Cir. 2003)
(quoting Smith). Person argues that the evidence showed that his
possession of the firearm and the cocaine was purely coincidental.
In explaining its decision, the court observed that
Person had steadily maintained that he did not use drugs. The
court therefore concluded that the four grams of cocaine, while not
a large amount, was intended for distribution. Person does not
challenge this finding. The court next noted that Krawiec
testified that he had locked the glove compartment when he placed
his gun in it, but that the glove compartment was not locked when
- 5 -
Person opened it during the traffic stop, and that the gun was
visible as soon as the glove compartment was opened. The
implication was that Person had discovered the gun at some point
before he set out with the four grams of cocaine and chose to have
the gun with him while he was engaged in cocaine trafficking. This
factual finding was not clearly erroneous. Given this finding, the
court did not err in concluding that Person possessed the firearm
to facilitate the drug transaction.
At the beginning of the hearing, Person also objected to
the enhancement on the ground that it was impermissible under
Blakely v. Washington, 542 U.S. 296 (2004). The district court
declined to address the effect of Blakely, but noted that Person
had preserved the issue for appeal. Since then, in United
States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court held
that Blakely applied to the federal sentencing guidelines. We have
identified two types of Booker error: a violation of the Sixth
Amendment, and a failure to treat the sentencing guidelines as
advisory. United States v. Hughes, 401 F.3d 540, 552 (4th Cir.
2005). A Sixth Amendment error occurs when the district court
imposes a sentence greater than the maximum permitted based on
facts found by a jury or admitted by the defendant. Booker, 125
S. Ct. at 756.
Person’s objection to the enhancement pursuant to Blakely
at sentencing preserved the Sixth Amendment issue for appeal; our
- 6 -
review is thus de novo. The four-level increase under
§ 2K2.1(b)(5) based on the district court’s determination that
Person possessed the firearm in connection with another felony
offense was a violation of the Sixth Amendment under Booker.
Without the enhancement, Person’s offense level would have been 20.
He was in criminal history category II, which would have given him
a guideline range of 37-46 months. Person’s fifty-seven-month
sentence thus exceeded the maximum he could have received based on
facts found by the jury. The court did not indicate what sentence
it would impose under an advisory guideline scheme. Therefore, we
conclude that resentencing is required under Booker.
Accordingly, we affirm the district court’s calculation
of the guideline range. We vacate the sentence and remand for
resentencing consistent with Booker. On remand, the court should
consider the guideline range, the other relevant factors set out in
the guidelines, and the factors set out in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005) before imposing sentence. 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 IN PART,
VACATED IN PART,
AND REMANDED
- 7 -