UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5193
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERENCE C. RIDLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:08-cr-00043-RGD-FBS-1)
Submitted: June 10, 2011 Decided: June 22, 2011
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lawrence H. Woodward, Jr., Charles Lustig, SHUTTLEWORTH, RULOFF,
SWAIN, HADDAD & MORECOCK, P.C., Virginia Beach, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Cameron M.
Rountree, Special Assistant United States Attorney, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Terence C. Ridley of possession of
firearms and ammunition by a felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006), and he was sentenced by the district court
to 115 months’ imprisonment. On appeal, Ridley contended that
the evidence was insufficient to support his conviction and that
the district court erred in its application of U.S. Sentencing
Guidelines Manual (USSG) § 2K2.1(b)(6) (2007). Although we
affirmed Ridley’s conviction, we concluded that the district
court’s application of the Sentencing Guidelines was
procedurally unreasonable, vacated the sentence, and remanded
for further proceedings. United States v. Ridley, 381 F. App’x
247, 249 (4th Cir. 2010) (No. 09-4076). On remand, the district
court confirmed the calculations in the Presentence
Investigation Report and sentenced Ridley to 110 months’
imprisonment. Counsel once again challenges the district
court’s application of a four-level enhancement under USSG
§ 2K2.1(b)(6). Finding no error, we affirm.
At sentencing, the district court initially is
required to calculate an appropriate advisory Guidelines range.
Gall v. United States, 552 U.S. 38, 49 (2007). The district
court “may accept any undisputed portion of the presentence
report as a finding of fact[,]” Fed. R. Crim. P. 32(i)(3)(A),
and should evaluate the sentencing factors based on the
2
preponderance of the evidence. See United States v. Harvey, 532
F.3d 326, 337 (4th Cir. 2008). When reviewing the district
court’s application of the Sentencing Guidelines, we review
findings of fact for clear error and questions of law de novo.
United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008).
The burden is on the government to establish by a preponderance
of the evidence that a sentencing enhancement should be applied.
See United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir.
2010).
Section 2K2.1(b)(6) provides for a four-level
enhancement “[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony offense.” USSG
§ 2K2.1(b)(6). “‘Another felony offense’, for purposes of
subsection (b)(6), means any federal, state, or local 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 cmt. n.14(C). Moreover, a
firearm is used or possessed “in connection with” another felony
offense if it “facilitated, or had the potential of
facilitating,” the offense. Id. cmt. n.14(A); see United States
v. Jenkins, 566 F.3d 160, 162-63 (4th Cir. 2009). “[I]n the
case of a drug trafficking offense in which a firearm is found
in close proximity to drugs, . . . application of [the four-
level enhancement] is warranted because the presence of the
3
firearm has the potential of facilitating another felony offense
. . . .” USSG § 2K2.1 cmt. n.14(B); see Jenkins, 566 F.3d at
163.
The district court determined that the enhancement was
warranted because Ridley was “a drug dealer.” In making this
finding, the court considered the amount of drugs and the cash
Ridley possessed. See United States v. Kellam, 568 F.3d 125,
141 (4th Cir. 2009) (inferring intent to distribute from “the
quantity of drugs involved and the amount of relevant cash
seized”). The court also considered the fact that Ridley
likewise possessed loaded weapons and a bulletproof vest and
that he was wearing a ski mask on his head. Additionally, the
district court found that drug dealers need firearms for
protection and that Ridley possessed them in this capacity.
Based on these facts, we conclude that it was not
clearly erroneous for the district court to find that Ridley was
dealing drugs and that the firearms he possessed had the
potential to facilitate that activity. Therefore, the district
court did not err in applying the four-level enhancement under
USSG § 2K2.1(b)(6).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
4
before the court and argument would not aid the decisional
process.
AFFIRMED
5