UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4398
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS PHELPS HAMILTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:12-cr-00002-RLV-DSC-1)
Submitted: March 31, 2015 Decided: April 7, 2015
Before KING and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre, III, Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Anthony J.
Enright, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury found Thomas Phelps Hamilton guilty of manufacturing
marijuana, in violation of 21 U.S.C. § 841(a) (2012), and
possessing firearms and ammunition after having been convicted
of a felony, in violation of 18 U.S.C. § 922(g)(1) (2012). On
appeal, Hamilton challenges his convictions and 180-month
sentence. Finding no error, we affirm.
I.
Hamilton first argues that the district court abused its
discretion by admitting the testimony of Trooper Richardson
under Federal Rule of Evidence 404(b). We review a district
court’s “decision to admit evidence under Rule 404(b) for abuse
of discretion.” United States v. Byers, 649 F.3d 197, 206 (4th
Cir. 2011). Under Rule 404(b), evidence of prior bad acts may
be admitted as proof of “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident” but “not . . . to prove a person’s character
in order to show that on a particular occasion the person acted
in accordance with [his] character.” Fed. R. Evid. 404(b).
“Rule 404(b) is an inclusive rule, admitting all evidence of
other crimes or acts except that which tends to prove only
criminal disposition.” United States v. Wilson, 624 F.3d 640,
651 (4th Cir. 2010) (internal quotation marks omitted). “To be
admissible under Rule 404(b), evidence must be (1) relevant to
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an issue other than character; (2) necessary; and (3) reliable.”
United States v. Siegel, 536 F.3d 306, 317 (4th Cir. 2008)
(internal quotation marks omitted). Nevertheless, potential
Rule 404(b) evidence should be excluded if its probative value
is substantially outweighed by its unfair prejudice to the
defendant. United States v. Johnson, 617 F.3d 286, 296-97 (4th
Cir. 2010).
Trooper Richardson testified only that he saw Hamilton in
possession of a handgun in 2005. We conclude that this
testimony meets all the criteria for admissibility under Rule
404(b), and that the district court’s careful ruling with regard
to the scope of Trooper Richardson’s testimony, combined with
the limiting jury instructions, eliminated the risk of unfair
prejudice. Accordingly, we find no abuse of discretion in the
district court’s admission of Trooper Richardson’s testimony
under Rule 404(b).
II.
Next, Hamilton contends that the district court erred by
applying the four-level enhancement under U.S. Sentencing
Guidelines Manual § 2K2.1(b)(6)(B) (2013) for possession of a
firearm or ammunition in connection with another felony offense.
When evaluating Sentencing Guidelines calculations, we review
the district court’s factual findings for clear error and its
legal conclusions de novo. United States v. Cox, 744 F.3d 305,
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308 (4th Cir. 2014). Section 2K2.1(b)(6)(B) provides for a
four-level enhancement if a defendant “used or possessed any
firearm or ammunition in connection with another felony
offense.” The purpose of this enhancement 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). A firearm or ammunition is
possessed “in connection with” another felony offense “if the
firearm or ammunition facilitated, or had the potential of
facilitating, another felony offense.” USSG § 2K2.1(b)(6), cmt.
n.14(A). The Guidelines provide a presumption for drug
trafficking offenses: the firearm is presumed to have the
“potential of facilitating another felony offense” when the
“firearm is found in close proximity to drugs, drug-
manufacturing materials, or drug-paraphernalia.” USSG
§ 2K2.1(b)(6), cmt. n.14(B); see United States v. Paneto, 661
F.3d 709, 717 (1st Cir. 2011) (“[I]n a situation in which the
additional felony is drug trafficking, the guideline means that
the enhancement is appropriate whenever the firearm is in close
proximity to the drugs.”).
After reviewing the record, we conclude that the district
court properly applied the four-level enhancement under
§ 2K2.1(b)(6)(B). At least one of the firearms was found in
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close proximity to the marijuana manufacturing operation and
other drug paraphernalia. Moreover, the evidence suggests that
Hamilton’s possession of firearms was not a “mere accident or
coincidence.” Jenkins, 566 F.3d at 163. Rather, it is apparent
that the firearms were “present for protection [and] to
embolden” Hamilton. United States v. McKenzie-Gude, 671 F.3d
452, 464 (4th Cir. 2011) (internal quotation marks omitted).
Thus, whether applying the proximity presumption for drug
trafficking offenses or the generally applicable standard
articulated in the commentary to the Guidelines, the district
court did not err by applying the four-level enhancement.
III.
We affirm the district court’s judgment. 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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