UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4471
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADRIAN LAMONTE SHANKLE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:11-cr-00367-FDW-1)
Submitted: May 26, 2015 Decided: June 5, 2015
Before WILKINSON, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Norman Butler, LAW OFFICE OF NORMAN BUTLER, Charlotte, North
Carolina, for Appellant. Jill Westmoreland Rose, Acting United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Adrian Lamonte Shankle pled guilty to 17 counts of
distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (2012) (counts 1 through 15, 19, and 20),
and was found guilty after a jury trial of distribution of
cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
(count 16), and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2012) (count 17). The
district court calculated Shankle’s Guidelines range under the
U.S. Sentencing Guidelines Manual (2012) at 87 to 108 months’
imprisonment and sentenced Shankle to 87 months’ imprisonment.
On appeal, Shankle challenges the district court’s calculation
of his Guidelines range, arguing that the court erred in:
applying the 2-level enhancement under USSG § 2D1.1(b)(1) for
possession of a firearm; applying the 2-level enhancement under
USSG § 2K2.1(b)(4)(A) for a stolen firearm; applying the 4-level
enhancement under USSG § 2K2.1(b)(6)(B) for possession of a
firearm in connection with the distribution of cocaine base; and
failing to apply a 2-level reduction under USSG § 3E1.1(a) for
acceptance of responsibility. * We affirm.
*
Shankle has filed a motion for leave to file a pro se
supplemental brief, along with that brief. Because Shankle is
represented by counsel who has filed a merits brief, Shankle is
not entitled to file a pro se supplemental brief, and we
therefore deny his motion. See United States v. Penniegraft,
(Continued)
2
Section 2D1.1(b)(1) of the Guidelines directs a district
court to increase a defendant’s offense level by 2 levels “[i]f
a dangerous weapon (including a firearm) was possessed.” The
enhancement should be applied “if the weapon was present, unless
it is clearly improbable that the weapon was connected with the
offense.” USSG § 2D1.1 cmt. n.11(A). The enhancement is proper
when the weapon at issue “was possessed in connection with drug
activity that was part of the same course of conduct or common
scheme as the offense of conviction,” United States v. Manigan,
592 F.3d 621, 628-29 (4th Cir. 2010) (internal quotation marks
omitted), even “in the absence of proof of precisely concurrent
acts, for example, gun in hand while in the act of storing
drugs, drugs in hand while in the act of retrieving a gun.”
United States v. Slade, 631 F.3d 185, 189 (4th Cir. 2011)
(internal quotation marks omitted). To prove that a weapon was
present, the Government “need show only that the weapon was
possessed during the relevant illegal drug activity.”
United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).
The defendant bears the burden of showing that a connection
between his possession of a firearm and his narcotics offense is
641 F.3d 566, 569 n.1 (4th Cir. 2011) (denying motion to file
pro se supplemental brief because defendant was represented by
counsel).
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“clearly improbable.” Slade, 631 F.3d at 189 (internal
quotation marks omitted).
We conclude after review of the record and the parties’
briefs that Shankle has not met this burden. The district
court’s application of the 2-level enhancement under
USSG § 2D1.1(b)(1) is supported by testimony adduced at trial
and reflected in the revised presentence report that Shankle
sold a loaded 9-millimeter firearm and a quantity of cocaine
base to an undercover officer during the same transaction. At
sentencing, Shankle did not point to any evidence suggesting
that the connection between the firearm and his drug
distribution was “clearly improbable,” and this failing
continues on appeal. We also reject as meritless Shankle’s
argument that the district court erred in applying the
enhancement based on its consideration of acquitted conduct.
A district court is free at sentencing to consider acquitted
conduct in calculating a defendant’s Guidelines range.
United States v. Lawing, 703 F.3d 229, 241 (4th Cir. 2012).
Shankle thus fails to establish that the district court clearly
erred in applying the 2-level enhancement under
USSG § 2D1.1(b)(1). See McAllister, 272 F.3d at 234 (stating
standard of review).
Turning to Shankle’s challenge to the district court’s
refusal to apply a 2-level reduction under USSG § 3E1.1(a) for
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acceptance of responsibility, such a reduction to a defendant’s
offense level is warranted if he “clearly demonstrates”
acceptance of responsibility for his offenses. USSG § 3E1.1(a).
To receive a reduction under USSG § 3E1.1, the defendant “must
prove by a preponderance of the evidence that he has clearly
recognized and affirmatively accepted personal responsibility
for his criminal conduct.” United States v. May, 359 F.3d 683,
693 (4th Cir. 2004) (internal quotation marks omitted).
In determining whether the adjustment is warranted, the district
court may consider whether the defendant has “truthfully
admitt[ed] the conduct comprising the offense(s) of conviction,
and truthfully admitt[ed] or not falsely den[ied] any additional
relevant conduct for which the defendant is accountable under
[USSG] § 1B1.3.” USSG § 3E1.1 cmt. n.1(A).
We conclude after review of the record and the parties’
briefs that the district court did not clearly err in denying
Shankle a 2-level reduction under USSG § 3E1.1(a) for acceptance
of responsibility. See May, 359 F.3d at 688 (stating standard
of review). Shankle did not admit guilt of or responsibility
for the criminal conduct comprising counts 16 and 17.
We further reject as meritless Shankle’s claim that the district
court never considered application note 2 to USSG § 3E1.1 and
never considered his admission to the probation officer of
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participation in and acceptance of responsibility for the 17
counts of drug distribution to which he pled guilty.
Finally, with respect to Shankle’s challenges to the
district court’s application of the 2-level enhancement under
USSG § 2K2.1(b)(4)(A) for a stolen firearm and the 4-level
enhancement under USSG § 2K2.1(b)(6)(B) for possession of a
firearm in connection with another felony offense, we need not
resolve whether the court erred in applying the enhancements.
Assuming without deciding that application of these enhancements
was error, such error was harmless. See United States v.
McManus, 734 F.3d 315, 318 (4th Cir. 2013) (“[S]entencing error
is subject to harmlessness review. Sentencing error is harmless
if the resulting sentence is not longer than that to which the
defendant would otherwise be subject.” (internal quotation marks
and alterations omitted)). A review of the record shows that
application of these enhancements did not affect the Guidelines
range or Shankle’s sentence.
The district court applied the enhancements to count 17,
yielding an adjusted offense level for that count of 20. The
court, however, did not rely on this offense level in
calculating Shankle’s Guidelines range. Rather, the court
relied on the adjusted offense level of 28 calculated for the
group encompassing counts of distribution of cocaine base — the
greatest of the adjusted offense levels. This offense level and
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Shankle’s Category II criminal history result in a Guidelines
range of 87 to 108 months’ imprisonment, and Shankle received a
prison term at the bottom of that range. Without the
enhancements under USSG §§ 2K2.1(b)(4)(A), (6)(B), Shankle’s
offense level would remain the same as that calculated by the
district court. Accordingly, any error in applying the
enhancements was harmless.
Accordingly, 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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