UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4861
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HOWARD DESHAWN RANDOLPH,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:06-cr-00241)
Submitted: March 31, 2008 Decided: May 21, 2008
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Karen L. Bleattler, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a guilty plea, Howard Deshawn Randolph was
convicted of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1)(2000), and sentenced to 70
months in prison. Randolph appeals, contending that: (1) the
district court erred in denying the motion to suppress the firearm
because the search warrant was not based upon probable cause, and
(2) the district court improperly applied a four-level sentencing
enhancement pursuant to U.S.S.G. § 2K2.1(b)(6). Finding no error,
we affirm.
Randolph first asserts that the search warrant
application was deficient because it was based upon bare bones
assertions that were neither sufficiently reliable nor
corroborated. In the alternative, Randolph argues that the
district court erred by not holding a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978), arguing that the search warrant was
obtained as the result of false material representations by an
unreliable confidential informant that were relayed to the
magistrate with reckless disregard for the truth.
Legal conclusions underlying the denial of a motion to
suppress are reviewed de novo, while factual findings are reviewed
for clear error. United States v. Moreland, 437 F.3d 424, 429 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). The evidence is
construed in the light most favorable to the party prevailing
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below. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
1998).
In reviewing the propriety of issuing a search warrant,
the relevant inquiry is whether, under the totality of the
circumstances, the issuing judge had a substantial basis for
concluding that there was probable cause to issue the warrant.
Illinois v. Gates, 462 U.S. 213, 238 (1983). The facts presented
to the issuing judge need only convince a person of reasonable
caution that contraband or evidence of a crime will be found at the
place to be searched. Texas v. Brown, 460 U.S. 730, 742 (1983).
We afford great deference to the district court’s findings of
probable cause. Gates, 462 U.S. at 236.
Here, Huntington police arrested witness Davis and found
a crack pipe and cocaine on her person. Davis informed the
officers that she received the drugs fifteen minutes earlier from
a man named Deshawn, in rooms 122 and 225 of the Ramada Inn, and
that she observed both drugs and guns in the rooms. The officers
confirmed that the same man, Howard Deshawn Randolph, rented rooms
122 and 225 under his name. Based upon this information, a warrant
issued. Although the precise location of Davis’s arrest is in
dispute, Davis possessed cocaine base instead of mere “cocaine” as
the search warrant stated, and Davis was arrested for trespass,
suggesting officers knew her, these minor inconsistencies do not
call into question Davis’s statements to police describing where
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she obtained the drugs, Randolph’s name, and the exact location of
where the drugs and guns would be found. As the district court
pointed out, Davis was facing criminal charges so she had great
incentive to provide accurate information in order to better her
position. Because probable cause existed for the search warrant,
we conclude the district court did not err in denying Randolph’s
motion to suppress the firearms.
Next, Randolph argues that the district court erred by
not holding a Franks hearing to determine the reliability of the
evidence in the affidavit upon which the warrant was based.
Randolph did not move for a Franks hearing in the district court;
thus, the court had no reason to order such a hearing. The
district court found the information provided by police in the
affidavit to be truthful. The statement that Davis was found with
cocaine on her person instead of “crack” cocaine does not negate
her statement that she received drugs from the Defendant. Randolph
fails to demonstrate why a Franks hearing was warranted, and we
conclude the district court did not err when it did not convene
such a hearing on its own initiative.
Randolph next contends that the district court erred when
it applied U.S.S.G. § 2K2.1(b)(6) to enhance his sentence. The
court found that Randolph possessed the firearms in connection with
the felony offense of distribution of drugs. Section § 2K2.1(b)(6)
provides for a four-level enhancement if a defendant “used or
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possessed any firearm or ammunition in connection with another
felony offense.” “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 (or facilitates another person’s
commission of an offense involving a firearm).” United States v.
Blount, 337 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). A sentencing court may consider any
evidence at sentencing that “has sufficient indicia of
reliability.” See U.S.S.G. § 6A1.3(a).
To apply an enhancement pursuant to § 2K2.1(b)(6), a
district court must find both (1) that 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 U.S.S.G. § 2K2.1(b)(5)). Whether a defendant has actually
possessed a firearm in connection with another felony offense is a
factual question. Id. Accordingly, the district court’s decision
to enhance Randolph’s offense level pursuant to § 2K2.1(b)(6) is
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reviewed for clear error. United States v. Green, 436 F.3d 449,
456 (4th Cir. 2006). This deferential standard of review requires
reversal only if this court is “left with the definite and firm
conviction that a mistake has been committed.” United States v.
Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting Anderson v.
City of Bessemer, 470 U.S. 564, 573 (1985)).
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. § 924(c) (2000). 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). However, the “in
connection with” requirement in § 2K2.1(b)(6) is not satisfied
where the presence of the firearm is the result of mere accident or
coincidence. United States v. Blount, 337 F.3d 404, 411 (4th Cir.
2003). Accordingly, the Government was required to prove more than
the mere presence of the firearm but also that Randolph’s
possession of a firearm facilitated or had the tendency to
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facilitate his drug sales or was present for protection or served
to embolden him.
The probation officer assigned the weapons enhancement
because the two firearms were found in the hotel room along with
three baggies and two hand-rolled cigars of marijuana, four baggies
of cocaine, digital scales, and $334 in cash. Because the drugs
were found in small baggies, the Government argued that they were
packaged for distribution, and indeed, Randolph distributed cocaine
to Davis by sharing it, even if he did not sell it to her.
Randolph explained the drugs were purchased in more than one
transaction, therefore, they were packaged in separate baggies, and
he had no intention of selling the drugs but was “partying” with
others on his last night in town. Randolph accepted responsibility
for the firearms in the room and explained that he bought a weapon
for protection, but argued that the firearms were not connected to
the drugs found in the room beyond mere presence. He explained
that the firearms and his other belongings were in the hotel room
because it was his last night in Huntington before he moved.
The district court agreed with the Government, and found
that Randolph met the technical definition of “distribution” when
he shared cocaine with Davis. The court also found that the manner
in which the drugs were packaged, along with the digital scales,
suggested distribution. The court found that the firearms were
possessed in connection to the felony distribution because the
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Government proved that the firearms were for Randolph’s protection
and were not merely present by happenstance. On this record, we
conclude the district court did not commit “clear error” when it
enhanced Randolph’s sentence pursuant to § 2K2.1(b)(6).
Accordingly, we affirm Randolph’s conviction and
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
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