UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4747
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL SPENCER CLARK,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:03-cr-01055-TLW-1)
Submitted: January 12, 2011 Decided: February 2, 2011
Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, William E. Day, II, Assistant United States Attorney,
Columbia, South Carolina; Lanny A. Breuer, Assistant Attorney
General, Greg D. Andres, Acting Deputy Assistant Attorney
General, Thomas E. Booth, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Spencer Clark appeals his 112-month sentence
imposed following his guilty plea to possession of a firearm by
a felon, in violation of 18 U.S.C. § 922(g) (2006). On appeal,
Clark argues that the district court erred in enhancing his
sentence pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 2K2.1(b)(6). Specifically, Clark contends the district court
erred in using the 2005 edition of the guidelines manual rather
than the 2006 edition when calculating his offense level; there
was insufficient evidence that the firearm found in his car was
connected to the drugs possessed by Clark; and the firearm
possessed by Clark neither facilitated nor had the potential to
facilitate drug possession. We affirm.
Appellate courts are charged with reviewing sentences
for both procedural and substantive reasonableness. Gall v.
United States, 552 U.S. 38, 51 (2007). In determining
procedural reasonableness, this court first assesses whether the
district court properly calculated the defendant’s advisory
guidelines range. Id. at 49-50. Clark’s challenge to the
application of the enhancement for possessing the firearm in
connection with a felony offense contests the procedural
reasonableness of his sentence.
Because Clark failed to raise this claim before the
district court, this court’s review is for plain error. United
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States v. White, 405 F.3d 208, 215 (4th Cir. 2005). To
establish plain error, Clark must “show that an error occurred,
that the error was plain, and that the error affected his
substantial rights.” Id. In the sentencing context, an error
affects substantial rights if the defendant can show that the
sentence imposed “was longer than that to which he would
otherwise be subject.” United States v. Washington, 404 F.3d
834, 849 (4th Cir. 2005) (internal quotation marks and citation
omitted). Even if such a showing is made, the decision to
correct the error is in the discretion of this court, based on a
determination that the error “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation
marks, alterations and citation omitted).
After reviewing the record, we conclude that the
district court’s error in using the 2005 edition of the
guidelines manual when sentencing Clark did not affect his
substantial rights. We also conclude that the court correctly
enhanced Clark’s sentence for possessing the firearm in question
in connection to another felony offense, pursuant to USSG
§ 2K2.1(b)(6) (2006). *
*
In the pre-2006 editions of the guidelines manual, such as
the 2005 edition used by the district court, this section was
labeled § 2K2.1(b)(5).
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Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately expressed in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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