UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4499
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL LEE DRAKE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:06-cr-00010)
Submitted: January 9, 2009 Decided: February 9, 2009
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry M. Whitesides, Jr., THE LAW OFFICES OF H. M. WHITESIDES,
JR., P.A., Charlotte, North Carolina, for Appellant. Gretchen C.
F. Shappert, United States Attorney, Charlotte, North Carolina;
Don D. Gast, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Lee Drake appeals from the sentence imposed
after he was convicted for the sale or disposal of firearms to a
person known to be a convicted felon and possession of a firearm
with an obliterated serial number. He received a forty-one
month sentence. On appeal, Drake argues that the district court
erred in applying a four-level enhancement at sentencing for
transferring a firearm “with knowledge, intent, or reason to
believe that it would be used or possessed in connection with
another felony offense” under U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(5) (2003). * Finding no error, we affirm.
We review a district court’s findings at sentencing
for clear error and its legal determinations de novo. United
States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989). A
determination that there are sufficient facts to impose a
§ 2K2.1(b)(5) enhancement is a factual finding. See United
States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001) (government
has burden of proving facts to support § 2K2.1(b)(5) enhancement
by preponderance of the evidence and district court’s fact
finding is reviewed for clear error); United States v. Nale, 101
F.3d 1000, 1004 & n.3 (4th Cir. 1996) (same). This deferential
*
Section 2K2.1(b)(5) was moved to subparagraph (b)(6) by
Amendment 691, effective November 1, 2006. USSG Supp. to App.
C, amend. 691.
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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. Bessemer City, 470 U.S. 564, 573
(1985)).
Section 2K2.1(b)(5) provides for a four-level
enhancement if the defendant transferred a firearm “with
knowledge, intent, or reason to believe that it would be used or
possessed in connection with another felony offense.” “‘Another
felony offense’, for purposes of subsection (b)(5), 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 comment. (n.14(C)). The district court
may find that “a firearm is ‘used in connection with’ another
felony offense if it facilitates or has a tendency to facilitate
the felony offense.” Garnett, 243 F.3d at 829 (citing Smith v.
United States, 508 U.S. 223, 237 (1993)) (internal quotations
omitted); USSG § 2K2.1 comment. (n.14(A)).
There must be evidence that the firearm had some
purpose or effect with respect to the predicate felony and its
presence cannot be the result of accident or coincidence.
United States v. Blount, 337 F.3d 404, 411 (4th Cir. 2003). The
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Government can 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) (analyzing “in
relation to” element in 18 U.S.C. § 924(c) conviction).
In this case, the district court applied the
enhancement based on its conclusion that Drake transferred the
weapons to Walter Chambers having reason to believe that they
would be used in further felonies. Drake argues that the
“another felony” language of § 2K2.1(b)(5) suggests another
specified felony. However, we have held that
“[section] 2K2.1(b)(5) does not require a defendant’s knowledge
of a specific offense to be committed.” United States v.
Cutler, 36 F.3d 406, 408 (4th Cir. 1994). Further, the
Government can meet its burden by showing that the gun was
present for protection or to embolden the actor. See Lipford,
203 F.3d at 266. When the seller has personal contact with the
buyer, it is “logical for the sentencing courts to infer a
certain level of knowledge about their buyers’ intended uses.”
United States v. Askew, 193 F.3d 1181, 1184-85 (11th Cir. 1999).
Another felony may include those acts not charged. USSG § 2K2.1
comment. (n.7).
After reviewing the evidence, we conclude that the
district court did not clearly err in finding that Drake
furnished the firearms knowing they would be used to facilitate
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or embolden Chambers in his sale of illegal drugs. Accordingly,
we affirm the 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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