United States v. Mack

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4447

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

RALPH MACK,

Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:08-cr-00037-RLV-DCK-1)

Submitted: February 18, 2010 Decided: February 23, 2010

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Matthew R. Segal,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, Steven Slawinski, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Edward R. Ryan, United States Attorney, Charlotte, North
Carolina, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Ralph Mack appeals from his conviction and sentence on

a plea of guilty to felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g) (2006). In sentencing Mack to

100 months’ imprisonment, the district court applied a four-

level enhancement pursuant to U.S. Sentencing Guidelines Manual

(“USSG”), § 2K2.1(b)(6) (2008), after determining that Mack used

or possessed a firearm in connection with another felony

offense, specifically, possession with intent to distribute

cocaine base. The application of this enhancement is the sole

issue on which Mack appeals. We affirm.

At Mack’s sentencing hearing, the district court heard

evidence from the Government that police officers conducted

three controlled crack cocaine buys from Mack, after a

confidential informant reported that Mack was in the business of

selling crack out of his residence and that Mack had possessed

firearms in the past. Two days following the last of the three

controlled buys, officers executed a search warrant at Mack’s

residence and seized what one officer described as a “very small

amount” of cocaine base, which was found next to the sofa where

a loaded .380 semi-automatic handgun and ammunition was seized.

On appeal, as in the district court, Mack claims the small

amount of crack cocaine was consistent with personal use and not

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distribution, such that an enhancement pursuant to USSG

§ 2K2.1(b)(6) was improper.

In considering the legality of Mack’s sentence, this

court reviews “legal questions, including the interpretation of

the guidelines, de novo, while factual findings are reviewed for

clear error.” United States v. Moreland, 437 F.3d 424, 433 (4th

Cir. 2006). Here, we find no clear error in the district

court’s finding that the crack was intended for sale, given the

evidence of prior recent crack cocaine sales, the proximity of

the drugs to the loaded firearm, * and the absence of any evidence

of personal narcotics usage by Mack.

Accordingly, we affirm Mack’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

*
See USSG § 2K2.1 cmt. n.14(B).

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