UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4188
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILBERT BEN MANESS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00221-JAB-1)
Submitted: November 24, 2008 Decided: December 29, 2008
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wilbert Ben Maness, Jr., pled guilty to being a felon
in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2006). The district court sentenced him to a
100-month term of imprisonment, the bottom of the advisory
sentencing guidelines range. Maness appeals his sentence on two
grounds. Finding no reversible error, we affirm.
Maness first contends that the district court violated
his Fifth and Sixth Amendment rights by increasing his sentence
based upon the uncharged conduct of possession with intent to
distribute crack cocaine where that conduct was neither admitted
by him nor found by a jury beyond a reasonable doubt. Maness’
claim is foreclosed by circuit precedent. United States v.
Battle, 499 F.3d 315, 322-23 (4th Cir. 2007) (“When applying the
Guidelines in an advisory manner, the district court can make
factual findings using the preponderance of the evidence
standard.”), cert. denied, 128 S. Ct. 1121 (2008).
Maness also asserts that the district court erred by
applying a four-level enhancement for possession of a firearm in
connection with another felony offense--possession with intent
to distribute 1.6 grams of crack cocaine. See U.S. Sentencing
Guidelines Manual § 2K2.1(b)(6) (2006). He contends that the
amount of crack was not large enough to infer an intent to
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distribute and notes that the crack was not packaged for
distribution and that he did not possess drug paraphernalia.
We review a sentence for abuse of discretion. See
Gall v. United States, 128 S. Ct. 586, 597 (2007). “The first
step in this review requires us to ‘ensure that the district
court committed no significant procedural error, such as . . .
improperly calculating . . . the Guidelines range.’” United
States v. Osborne, 514 F.3d 377, 387 (4th Cir.) (quoting Gall,
128 S. Ct. at 597), cert. denied, 128 S. Ct. 2525 (2008). We
then consider the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances.
Gall, 128 S. Ct. at 597.
This court reviews the district court’s factual
findings for clear error. Id.; United States v. Garnett, 243
F.3d 824, 828 (4th Cir. 2001) (reviewing for clear error
enhancement for possession of a firearm in connection with
another felony offense). “Clear error occurs when, although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.” United States v. Harvey,
532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation marks
and citations omitted). The clearly erroneous “standard plainly
does not entitle a reviewing court to reverse the finding of the
trier of fact simply because it is convinced that it would have
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decided the case differently.” Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985) (internal quotations omitted).
Section 2K2.1(b)(6) provides for a four-level
enhancement if the defendant used or possessed any firearm or
ammunition in connection with another felony offense. This
finding encompasses two requirements: that the defendant
committed “another felony” and that he possessed the firearm “in
connection with” the other felony. * United States v. Blount, 337
F.3d 404, 410 (4th Cir. 2003). “‘Another felony offense’, for
purposes of subsection (b)(6), means any federal, state, or
local offense, other than the explosive or firearms possession
or trafficking offense, punishable by imprisonment for a term
exceeding one year, regardless of whether a criminal charge was
brought, or a conviction obtained.” USSG § 2K2.1 cmt. n.14(C);
see United States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005)
(discussing elements of offense of possession with intent to
distribute controlled substance).
With these standards in mind, we have carefully
reviewed the record on appeal. Our review leads us to conclude
that the district court did not clearly err in applying the
enhancement in USSG § 2K2.1(b)(6). See Anderson, 470 U.S. at
*
Maness does not challenge the “in connection with” element
on appeal.
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574 (“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”).
Accordingly, we affirm the district court’s judgment.
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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