United States v. Jerome Green

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4412

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JEROME GREEN, a/k/a JR,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:13-cr-00042-MOC-3)

Submitted: February 27, 2015 Decided: April 22, 2015

Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Steven Meier, MEIER LAW, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Jerome Green appeals his conviction and 57-month sentence

imposed following his guilty plea to possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012).

On appeal, Green’s counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that there

are no meritorious issues for appeal, but questioning whether

the district court erred in imposing a four-level enhancement

under U.S.S.G. § 2K2.1(b)(6)(B). Green’s supplemental pro se

brief similarly challenges the imposition of the U.S.S.G.

§ 2K2.1(b)(6)(B) enhancement. The Government has declined to

file a response brief. Following our careful review of the

record, we affirm.

In reviewing 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,

308 (4th Cir. 2014). Clear error occurs only when, “on the

entire evidence,” we are “left with the definite and firm

conviction that a mistake has been committed.” Id. (internal

quotation marks omitted). The Government bears the burden of

proving by a preponderance of the evidence that the court should

apply a Guidelines enhancement. United States v. Blauvelt, 638

F.3d 281, 293 (4th Cir. 2011).

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 The Guidelines provide for a four-level upward adjustment

if the defendant “used or possessed any firearm or ammunition in

connection with another felony offense,” U.S.S.G.

§ 2K2.1(b)(6)(B). The enhancement applies where “the firearm or

ammunition facilitated, or had the potential of facilitating,

another felony offense.” U.S.S.G. § 2K2.1 cmt. n.14(A). The

purpose of a U.S.S.G. § 2K2.1(b)(6) 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).

The requirement that a firearm be possessed “in connection

with” another felony “is 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. McKenzie-Gude, 671 F.3d 452, 463-64

(4th Cir. 2011) (internal quotation marks omitted). This

requirement is not satisfied, however, where “the firearm was

present due to mere accident or coincidence.” Jenkins, 566 F.3d

at 163 (internal quotation marks omitted). The Guidelines

specifically provide that the enhancement should be applied “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.” U.S.S.G. § 2K2.1 cmt. n.14(B).

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 Here, the district court found that Green possessed the

firearm in connection with the offense of possession with intent

to distribute marijuana. Green and his codefendants were

apprehended in a vehicle containing a backpack with 150.8 grams

of marijuana, both loose and packaged into smaller units

consistent with the intent to sell. Although it was on the

driver-side floorboard, the backpack was in close proximity to

Green, the front passenger. Two sets of digital scales and a

large amount of cash in small denominations were located in the

center console, accessible to all three occupants. All three

occupants had firearms concealed within the car, positioned so

as to be easily available. These facts are consistent with a

finding that the occupants of the vehicle jointly possessed the

marijuana with intent to distribute and used the firearms in

connection with that trafficking offense. See United States v.

Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (describing factors to

consider in determining whether a firearm furthered or advanced

drug trafficking); United States v. Burgos, 94 F.3d 849, 873

(4th Cir. 1996) (en banc) (describing possession in drug

trafficking context).

While Green asserts that the evidence was insufficient to

support a finding that he knew the marijuana was in the vehicle,

the record contains sufficient circumstantial evidence to

support the district court’s finding. Because the court’s

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finding was not clearly erroneous, we find no error in the

court’s imposition of the enhancement.

In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We

therefore affirm Green’s conviction and sentence. This court

requires that counsel inform Green, in writing, of the right to

petition the Supreme Court of the United States for further

review. If Green requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel

may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on Green.

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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