UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4113
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
COREY DWAYNE MOODY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:13-cr-00065-F-1)
Submitted: September 23, 2014 Decided: October 3, 2014
Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Phillip A. Rubin, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Corey Dwayne Moody appeals his 110-month sentence
imposed pursuant to his guilty plea to possession of a firearm
by a convicted felon. On appeal, he challenges the calculation
of his Sentencing Guidelines range, arguing that a four-level
upward adjustment for possession of the firearm in connection
with another felony was improperly applied pursuant to U.S.
Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2013). We
affirm.
In reviewing the district court’s application of the
Sentencing Guidelines, we review its legal conclusions de novo
and its factual findings for clear error. United States v.
Strieper, 666 F.3d 288, 292 (4th Cir. 2012). An enhancement
under USSG § 2K2.1(b)(6)(B) is appropriate when a firearm
possessed by a defendant “facilitated, or had the potential of
facilitating, another felony offense.” USSG § 2K2.1 cmt.
n.14(A). The purpose of Section 2K2.1(b)(6) is “to punish more
severely a defendant who commits a separate felony offense that
is rendered more dangerous by the presence of a firearm.”
United States v. Jenkins, 566 F.3d 160, 164 (4th Cir. 2009)
(internal quotation marks omitted).
The requirement that the firearm be possessed “in
connection with” another felony “is satisfied if the firearm had
some purpose or effect with respect to the other offense,
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including if the firearm was present for protection or to
embolden the actor.” United States v. McKenzie-Gude, 671 F.3d
452, 463-64 (4th Cir. 2011) (internal quotation marks omitted).
However, “the requirement is not satisfied if the firearm was
present due to mere accident or coincidence.” Jenkins, 566 F.3d
at 163 (internal quotation marks omitted). The Guidelines
commentary specifically provides that a defendant possesses a
firearm in connection with another felony “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 . . . because the presence of the firearm has the
potential of facilitating [the drug-trafficking] felony
offense.” USSG § 2K2.1 cmt. n.14(B).
Moody argues that the enhancement was improper for
several reasons: (1) the marijuana possessed at the time of the
search was for personal use, and thus, his drug offense was only
a misdemeanor under state law; (2) there was no evidence
establishing proximity in time between any prior drug
trafficking and the possession of the firearm; and (3) Moody
presented a credible explanation for the presence of the gun.
We conclude that Moody’s arguments are contradicted by the
record and that the district court did not err in determining
that the enhancement should apply.
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First, Moody admitted to selling marijuana, and an
officer testified at sentencing to five controlled buys from
Moody’s residence prior to execution of the search warrant.
Further, § 2K2.1 does not require that the defendant be found
engaged in drug trafficking at the time the firearm is
recovered. Second, the presentence report (“PSR”) states that
the controlled buys continued until the day before the firearm
was seized, and Moody stated that he had obtained the firearm “a
few days prior” to the search. As such, there was sufficient
evidence of a temporal proximity between possession of the
firearm and drug trafficking. See United States v. Terry, 916
F.2d 157, 162 (4th Cir. 1990) (holding that a defendant
intending to challenge the PSR has an affirmative duty to make a
showing that the information is unreliable, and articulate the
reasons why the facts contained therein are untrue or
inaccurate). Finally, Moody’s argument that he obtained the gun
for protection against an erratic person in the neighborhood
does not render the enhancement erroneous, as a drug trafficker
would have a specific and enhanced need for protection. See
Jenkins, 566 F.3d at 162.
The record establishes that the firearm was located in
the same closet as packaged-for-sale marijuana and was easily
accessible. Moody admitted to both possessing the firearm and
to selling marijuana out of his residence. The firearm
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therefore had the tendency to facilitate Moody’s drug sales by
offering him protection and emboldening him to use his residence
for drug trafficking. See USSG § 2K2.1 cmt. n.14(B). The
district court thus properly found sufficient evidence of drug
dealing and a sufficient nexus between the firearm and Moody’s
drug activities. Accordingly, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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