UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4980
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-03-598)
Submitted: July 26, 2006 Decided: November 2, 2006
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, A. Bradley Parham, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Brown was convicted by a jury of possession with
intent to distribute fifty or more grams of cocaine base (crack)
and a quantity of cocaine, 21 U.S.C. § 841(a), (b)(1)(A) (2000)
(Count 1), and possession of a firearm by a convicted felon, 18
U.S.C. § 922(g)(1) (2000) (Count 2). He was sentenced as an armed
career criminal to a term of 262 months imprisonment. 18 U.S.C.A.
§ 924(e) (West 2000 & Supp. 2006); U.S. Sentencing Guidelines
Manual § 4B1.4 (2003). Brown appeals his sentence, arguing that,
under Blakely v. Washington, 542 U.S. 296 (2004), his sentence was
increased based on facts determined by the sentencing judge, not
the jury, in violation of the Sixth Amendment. We affirm.
At Brown’s trial, Phyllis Smith testified that she spent
the evening of August 14, 2002, with Brown. She said he carried a
burgundy backpack which contained crack and a firearm. Brown
distributed crack to her and others. During the evening, Brown
rented a motel room where Smith stayed while Brown left to
distribute some of the drugs. Before Brown returned, Smith took
the backpack, left the motel, and shared Brown’s crack with other
people that night. The next day, afraid that Brown might find her,
Smith went to a bonding company that had represented her in the
past and turned over the gun and the remaining drugs. The gun was
a loaded .38 caliber revolver. The backpack contained 101.4 grams
of crack and 177 grams of cocaine powder. At trial, Brown
- 2 -
testified that the drugs and the gun belonged to Smith. The jury
convicted Brown on both counts.
Because Brown had prior state convictions for assault and
battery of a high and aggravated nature, failure to stop for a blue
light, and third degree burglary, the probation officer recommended
that Brown qualified for sentencing as an armed career criminal1
pursuant to 18 U.S.C.A. § 924(e). The probation officer
recommended an offense level of 34 under USSG § 4B1.4(b)(3), which
applies when the defendant possessed the firearm in connection with
a drug offense. Brown had eight criminal history points (category
IV); however, the probation officer recommended that the armed
career criminal designation placed him in criminal history category
VI, which applies if the conditions for offense level 34 are met.
USSG § 4B1.5(c)(2). The recommended guideline range was 262-327
months. The district court adopted the presentence report’s
recommendations without objection from Brown, and imposed the
minimum sentence of 262 months imprisonment.
On appeal, Brown challenges the drug quantity and the
weapon enhancement he received under USSG § 2D1.1, arguing that his
sentence was imposed in violation of the Sixth Amendment in light
of Blakely because these facts were not determined by the jury. He
1
A defendant qualifies for sentencing as an armed career
criminal if he violates § 922(g) and has three prior convictions
for a violent felony or a serious drug offense, committed on
different occasions. 18 U.S.C.A. § 924(e) (West 2000 & Supp.
2006).
- 3 -
also contests his armed career criminal status under Blakely
because the predicate offenses were not charged in the indictment.
Because Brown was sentenced before Blakely or United States v.
Booker, 543 U.S. 220 (2005), was decided, and he did not raise
these issues in the district court, our review is for plain error.
United States v. Olano, 507 U.S. 725, 732-37 (1993); United
States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005) (discussing
standard). The Supreme Court held in Booker that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
The Court remedied the constitutional violation by making the
guidelines advisory. Hughes, 401 F.3d at 546 (citing Booker, 543
U.S. at 245).
First, we note that the district court’s factual findings
concerning the drug amount and Brown’s possession of a firearm did
not affect his sentence because he was sentenced as an armed career
criminal, which increased his offense level to 34 and his criminal
history category to VI under § 4B1.4(b)(3)(A) and (b)(c)(2). Brown
argues that his armed career criminal conviction cannot stand
because the predicate convictions were neither charged in the
indictment nor admitted by him.2 This argument is foreclosed by
2
Brown states that he did not admit the prior convictions at
his guilty plea hearing, but this is a misstatement; he was
convicted of the instant offenses by a jury.
- 4 -
United States v. Cheek, 415 F.3d 349, 354 (4th Cir.), cert. denied,
126 S. Ct. 640 (2005) (holding that “the Sixth Amendment (as well
as due process) does not demand that the mere fact of a prior
conviction used as a basis for a sentencing enhancement be pleaded
in an indictment and submitted to a jury for proof beyond a
reasonable doubt.”).
Moreover, in Shepard v. United States, 544 U.S. 13
(2005), the Supreme Court held that Sixth Amendment protections
apply only to disputed facts about a prior conviction that are not
evident from “the conclusive significance of a prior judicial
record.” Id. at 25-26. Brown’s prior record established
conclusively that he had three convictions for violent felonies
committed on different occasions: aggravated assault and battery
committed in 1990; failure to stop for a blue light3 committed in
1996; and third degree burglary committed in 2000.
We also conclude that no Sixth Amendment violation
occurred with the district court’s application of offense level 34
and criminal history category VI under § 4B1.4, which encompassed
a factual finding that Brown possessed the firearm “in connection
with” the drug offense.4
3
See United States v. James, 337 F.3d 387, 391 (4th Cir. 2003)
(failure to stop for blue light constitutes a violent felony under
18 U.S.C.A. § 924(e)(2)(B)(ii)).
4
Although Brown does not contest the armed career criminal
sentence on this ground, he raised a Sixth Amendment claim with
respect to the firearm enhancement for the drug offense, thus
- 5 -
In this circuit, “in connection with” is treated as
analogous to “in relation to,” as used in 18 U.S.C.A. § 924(c)
(West 2000 & Supp. 2006). United States v. Blount, 337 F.3d 404,
411 (4th Cir. 2003) (construing USSG § 2K2.1(b)(5)). In other
words, the firearm must facilitate or have the tendency to
facilitate another offense. Id. “‘[T]he 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.
(quoting Smith v. United States, 508 U.S. 223, 238 (1993))
(modification in original). The government has the burden of
proving facts necessary to establish that the firearm was used or
possessed in connection with another felony. Blount, 337 F.3d at
411 (citing United States v. Garnett, 243 F.3d 824, 828 (4th Cir.
2001)). The government may meet its burden by showing that the gun
was “present for protection or to embolden the actor,” United
States v. Lipford, 203 F.3d 259, 266 (4th Cir. 2000) (citation
omitted), or that the defendant used the weapon for intimidation or
“prepared for this contingency by keeping the firearm close at
hand.” Blount, 337 F.3d at 411.
The jury determined that Brown possessed the firearm at
the same time that he committed the drug offense. The evidence at
trial thus established that Brown had prepared to use the gun to
intimidate others, if necessary, by keeping it close at hand, which
putting the issue before this court.
- 6 -
amounts to a finding that he had possessed the gun in connection
with the drug offense. Blount, 337 F.3d at 411. We therefore
conclude that the district court’s application of § 4B1.4 was
consistent with Booker.
Accordingly, we affirm the sentence imposed by the
district court.5 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
5
Brown does not challenge the mandatory application of the
guidelines in his case. The defendant bears the burden of showing
that this error prejudiced him, or “‘affected the outcome of the
district court proceedings.’” United States v. White, 405 F.3d
208, 223 (4th Cir. 2005) (quoting Olano, 507 U.S. at 734). Under
White, a defendant must “demonstrate, based on the record, that the
treatment of the guidelines as mandatory caused the district court
to impose a longer sentence than it otherwise would have imposed.”
405 F.3d at 224. Although the court imposed a sentence at the
bottom of the guideline range, it would only be speculation to
conclude that the district court would have sentenced Brown to a
lower sentence had it treated the guidelines as merely advisory.
- 7 -