UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM EDWARD TODD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cr-00231-BO-1)
Submitted: October 19, 2010 Decided: November 4, 2010
Before GREGORY and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Michael G. James, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Edward Todd appeals from his 110-month
sentence imposed pursuant to his guilty plea to possession of a
firearm by a convicted felon. On appeal, Todd asserts that
(1) the district court applied the wrong legal standard when
overruling his objection to the enhancement of his sentence
pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)
(2009), for possession of the firearm in connection with another
felony offense; and (2) if the court applied the right standard,
the court’s factual findings were clear error. We vacate and
remand for further proceedings.
Todd sold marijuana to a confidential informant from
his residence. On the same day, officers executed a search
warrant for Todd’s apartment and recovered marijuana,
ammunition, and a shotgun. After Todd was arrested, he admitted
to selling marijuana and told officers that his uncle brought
the shotgun over to his residence for safekeeping. The shotgun
was in the bedroom closet. 1
Section 2K2.1(b)(6) provides for a four-level
enhancement if a defendant “used or possessed any firearm or
ammunition in connection with another felony offense.”
1
It is unclear whether the shotgun was loaded or unloaded.
The presentence report states that the shotgun was unloaded, but
the Government averred at sentencing that it was loaded.
2
Application Note 14(A) to § 2K2.1 states that subsection (b)(6)
applies “if the firearm . . . facilitated, or had the potential
of facilitating, another felony offense . . . .” We review de
novo the legal application of the Guidelines to the facts. See
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
Whether a defendant has actually possessed a firearm in
connection with another felony offense is a factual question
reviewed for clear error. United States v. Garnett, 243 F.3d
824, 829 (4th Cir. 2001).
We have explained that the requirements of
§ 2K2.1(b)(6) are “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.) (internal
quotation marks, citation, and alteration omitted), cert.
denied, 130 S. Ct. 330 (2009). However, “the requirement is not
satisfied if the firearm was present due to mere accident or
coincidence.” Id. at 163 (internal quotation marks omitted).
Application Note 14(B) to USSG § 2K2.1(b)(6) further provides
that, “in the case of a drug trafficking offense in which a
firearm is found in close proximity to drugs, drug-manufacturing
materials, or drug paraphernalia[,]” application of subsection
(b)(6) “is warranted because the presence of the firearm has the
potential of facilitating another felony offense . . . .” See
3
also United States v. Lipford, 203 F.3d 259, 267 (4th Cir. 2000)
(finding firearm was used to facilitate drug trafficking where
gun’s involvement was not “spontaneous” or “coincidental”).
We have 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) (2006). 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.” Lipford, 203 F.3d at 266.
Accordingly, the Government was required to prove more
than the mere presence of the firearm. It must also prove that
the firearm facilitated or had the tendency to facilitate Todd’s
drug sales, was present for protection, or served to embolden
him. Our review of the record convinces us that the district
court likely applied the wrong legal standard. The district
court repeatedly and incorrectly stated that all the Guideline
required was possession of the firearm contemporaneous with the
felony drug sale. In addition, the court erroneously stated
4
that contemporaneous possession was sufficient because the
Guidelines had a lower threshold than 18 U.S.C. § 924(c) (2006). 2
The court did not make any findings that the firearm emboldened
Todd, that it was present for his protection, or that the drugs
and the firearm were found in close proximity. Because the
district court likely applied the wrong legal standard in
calculating Todd’s Guidelines range, his sentence was
procedurally unreasonable. United States v. Lewis, 606 F.3d
193, 200 (4th Cir. 2010) (improperly calculating the Guidelines
range is “significant procedural error”).
Accordingly, we vacate Todd’s sentence and remand for
the district court to recalculate the Guidelines range using the
appropriate legal standard. We express no opinion as to whether
the facts of the case supported an enhancement under the correct
legal standard. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
2
The Government asserts that the court was merely stating
that the standard of proof was different in a Guidelines
calculation than when determining the underlying conviction;
however, the burden of proof was undisputed at the hearing, and
a fair reading of the district court’s statements supports the
conclusion that the court erroneously believed that less of a
connection needed to be shown to support the Guidelines
enhancement than to support a § 924(c) conviction.
5
materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
6