UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4055
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSHUA M. BLANKENSHIP,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:08-cr-00257-1)
Submitted: May 19, 2010 Decided: June 18, 2010
Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Christian M. Capece, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, J. Christopher Krivonyak,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua M. Blankenship pled guilty to one count of
possession of a firearm by an unlawful user of a controlled
substance, in violation of 18 U.S.C. § 922(g)(3) (2006), and was
sentenced to a year and one day of imprisonment. On appeal,
Blankenship raises only one claim, arguing that the district
court erred in applying a four-level enhancement to his base
offense level under U.S. Sentencing Guidelines Manual (“USSG”)
§ 2K2.1(b)(6) (2009) for possession of two firearms during
Blankenship’s commission of felony mail theft. For the
following reasons, we affirm.
At the time of the underlying offense, Blankenship was
addicted to and abusing pain medication. While transporting
mail for his employer, Blankenship stole prescription medicines
containing hydrocodone from the mail, and crushed and snorted
the pills during three stops he made on his way to the post
office. When he was arrested, Blankenship had a loaded revolver
in his waistband and a loaded pistol concealed in his duffle
bag, which was next to Blankenship in the cab of the truck.
Under § 2K2.1(b)(6), “[i]f the defendant used or
possessed any firearm or ammunition in connection with another
felony offense,” a four-level enhancement is applied to the
defendant’s offense level. The commentary explains that the
phrase “in connection with” means whether “the firearm or
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ammunition facilitated, or had the potential of facilitating,
another felony offense.” USSG § 2K2.1, cmt. n.14(A). This
court has explained that “[t]his requirement is satisfied if the
firearm had some purpose or effect with respect to the other
offense, including if the firearm was present for protection or
to embolden the actor.” United States v. Jenkins, 566 F.3d 160,
162 (4th Cir. 2009) (internal quotation marks, citation, and
alteration omitted). However, “the requirement is not satisfied
if the firearm was present due to mere accident or coincidence.”
Id. at 163 (internal quotation marks omitted). Whether a
defendant used a firearm in connection with a felony is “a
factual determination based on the specific circumstances of
[each] case and, as such, is subject to a clearly erroneous
standard of review.” Id. Accordingly, we “will not disturb the
district court's finding unless we are left with the definite
and firm conviction that a mistake has been committed.” Id.
(internal quotation marks omitted).
Here, the district court found that Blankenship used
and possessed the firearm in connection with the offense of mail
theft, because the firearms facilitated or helped to facilitate
the offense. The court determined that Blankenship knowingly
possessed the firearms on or near his person, with one gun in
his waistband and one in a bag on the seat next to him; he
committed the offense of mail theft; and he was emboldened to
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commit the theft and protected during its commission by the
firearms.
On appeal, Blankenship asserts that there is no
evidence that either of the firearms “actually aided or helped
him” complete the mail theft offense, or that “he used one of
the firearms to secure a parcel before opening it or to scare
away other would-be medication thieves so he could open a
package and keep the drugs inside to himself.” However, as
Blankenship also acknowledges in his brief, whether the firearms
were actually used does not control application of the
enhancement. If the firearm had the potential to facilitate the
offense, the enhancement is still applicable. Blankenship
himself admitted that he had the firearm in his waistband for
“protection;” thus its presence was not mere accident or
coincidence. * Although he asserts that this was due to the fact
that he drove late at night on rural roads, the record clearly
demonstrates that, like the defendant in Jenkins, Blankenship’s
firearm was loaded, located on his person, and accessible and
ready for use. The isolated nature of his route “suggests that
there was a heightened need for protection and that the firearm
*
Blankenship did argue that the second firearm located in
his duffle bag was only there because he had used it at a range
and forgotten to remove it from his bag. However, he conceded
that the first firearm was intentionally on his person.
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emboldened [Blankenship].” Jenkins, 566 F.3d at 164. Based on
these facts, we cannot say that the district court was clearly
erroneous in its application of the four-level enhancement.
Accordingly, we affirm Blankenship’s 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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