UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4448
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALLEN TYRONE FORD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:06-cr-00129-D)
Submitted: December 3, 2007 Decided: December 19, 2007
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Allen Tyrone Ford appeals his sentence imposed following
his guilty plea to possessing a firearm after having been convicted
of a felony, in violation of 18 U.S.C.A. §§ 922(g) and 924(e) (West
2000 & Supp. 2007). Finding no error, we affirm the judgment of
the district court.
After receiving information from a confidential informant
that Ford was distributing crack cocaine from his home, the
Fayetteville Police Department conducted controlled buys from Ford
on August 25th and 30th, 2005. Two days later, on September 1,
2005, a search warrant was executed at Ford’s home. During the
search, Ford informed the officers that he had a small amount of
marijuana and a .25 caliber semi-automatic pistol hidden in a
bedroom. No cocaine or paraphernalia associated with drug
distribution was discovered during the search. Ford was ultimately
indicted for possessing a firearm after having been convicted of a
felony.
Prior to Ford’s sentencing, the probation office prepared
a presentence report. According to U.S. Sentencing Guidelines
Manual § 2K2.1(a)(2), Ford had a base offense level of twenty-four.
Ford’s base offense level was increased four points pursuant to
USSG § 2K2.1(b)(6) because the probation officer determined that
Ford possessed the firearm in connection with another felony
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offense — the sales of cocaine on August 25th and 30th.* Ford then
received a three level reduction for acceptance of responsibility,
resulting in an offense level of twenty-five. Ford’s criminal
history category of IV and his offense level resulted in an
advisory guidelines range of 84 to 105 months’ imprisonment.
Ford appeared for sentencing on April 25, 2007. At
sentencing, Ford objected to the four point enhancement for
possessing the firearm in connection with another felony. The
district court overruled Ford’s objection and sentenced him to
eighty-four months’ imprisonment. Ford timely noted his appeal and
now argues that: (1) the district court erred in finding that he
sold crack cocaine on August 25th and 30th and (2) the district
court erred in enhancing his sentence pursuant to USSG
§ 2K2.1(b)(6).
U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) provides
for a four level enhancement if a defendant “used or possessed any
firearm or ammunition in connection with another felony offense.”
USSG § 2K2.1(b)(6). “The purpose of this enhancement is to ensure
that a defendant receives more severe punishment if, in addition to
committing a firearms offense within the scope of § 2K2.1, he
commits a separate felony offense that is rendered more dangerous
by the presence of a firearm . . . .” United States v. Blount, 337
*
USSG § 2K2.1(b)(6) is the successor to § 2K2.1(b)(5); the
text was redesignated, without change when the guidelines were
amended in November 2006.
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F.3d 404, 406 (4th Cir. 2003) (citing United States v. McDonald,
165 F.3d 1032, 1037 (6th Cir. 1999)).
Following United States v. Booker, 543 U.S. 220 (2005),
a sentencing court continues to make factual findings concerning
sentencing factors by a preponderance of the evidence. United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert denied, 127
S. Ct. 121 (2006). Long-standing authority has permitted a
sentencing court to consider any evidence at sentencing that “has
sufficient indicia of reliability,” see USSG § 6A1.3(a), including
“conduct underlying [an] acquitted charge, so long as that conduct
has been proved by a preponderance of the evidence.” United States
v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam); United States
v. Montgomery, 262 F.3d 233, 249 (4th Cir. 2001).
To apply an enhancement pursuant to § 2K2.1(b)(6), a
district court must find both that (1) a firearm was used and (2)
that such use was “in connection with another felony offense.”
United States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001)
(quoting USSG § 2K2.1(b)(5)). The district court’s decision to
enhance Ford’s offense level pursuant to § 2K2.1(b)(6) is reviewed
for clear error. United States v. Green, 436 F.3d 449, 456 (4th
Cir. 2006).
On appeal, Ford argues that the district court erred in
applying the § 2K2.1(b)(6) enhancement because the Government
failed to prove that the predicate “other felonies,” namely cocaine
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distribution on August 25th and 30th, actually occurred. At
sentencing, the Government proffered, without objection, the
testimony of the case agent. According to the agent, Ford informed
officers that he had purchased the firearm for protection, that he
sold crack cocaine to pay for his rent and his marijuana, and that
he sold crack cocaine from his home daily. Ford also admitted that
he would purchase $50 of crack cocaine, cut it into rocks, and sell
it. Finally, Ford admitted that he would repeat this process
several times a day and that he tended to sell more on the
weekends.
Ford’s counseled brief fails to take into account the
testimony of the case agent at sentencing. As described, Ford gave
the officer a detailed description of his method for selling
cocaine, including how much he would purchase, how he would package
the drugs, how often he resupplied, and the times he tended to sell
more. Ford’s confession, in conjunction with the information from
the confidential source that Ford sold cocaine during the two
controlled buys, established by a preponderance of the evidence two
prior “other felonies” for purposes of § 2K2.1(b)(6).
Ford also argues that his § 2K2.1(b)(6) enhancement was
improper because the Government failed to prove he possessed the
firearm in connection with the cocaine sales on August 25th and
30th. This court has analogized the “in connection with” language
in § 2K2.1(b)(6) to the definition of “in relation to” in 18 U.S.C.
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§ 924(c). Garnett, 243 F.3d at 828; United States v. Nale, 101
F.3d 1000, 1003-04 (4th Cir. 1996). In Smith v. United States, 508
U.S. 223 (1993), “the Supreme Court determined that the ‘in
relation to’ language of § 924(c) could be satisfied by proving
that a weapon facilitated or potentially facilitated the offense.”
Nale, 101 F.3d at 1003. Additionally, this court, in the context
of § 924(c), has stated that a firearm is used “in relation to”
another felony offense “if the firearm was present for protection
or to embolden the actor.” United States v. Lipford, 203 F.3d 259,
266 (4th Cir. 2000).
Yet again, Ford’s argument is undercut by his confession.
Ford’s home was searched just two days after the second controlled
buy. At the time of his arrest, Ford admitted both to selling
crack from his home daily and that he possessed the gun found in
his home for protection. Thus, Ford’s admission established by a
preponderance of the evidence the “in connection with” requirement,
and the district court did not commit clear error in relying on
Blount and Lipford to enhance Ford’s sentence pursuant to
§ 2K2.1(b)(6).
Accordingly, we affirm the judgment of the district
court. 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
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