United States v. McCurry

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0211n.06
Filed: March 21, 2007

No. 06-5470, 06-5471

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellee,

On Appeal from the
v. United States District Court for
the Western District of Tennessee,
MARK MCCURRY , Eastern Division
Defendant-Appellant.

______________________________

Before: KENNEDY, MARTIN, and SUTTON, Circuit Judges

KENNEDY, J. Mark McCurry (hereinafter “defendant”) seeks review of two concurrent

70-month sentences ordered by the district court, asserting that the district court erred (1) in granting

a two-level enhancement pursuant to § 2D1.1(b)(1) of the United States Sentencing Guidelines and

(2) in affording insufficient consideration to the sentencing factors enumerated within 18 U.S.C.§

3553(a). We affirm the district court.

BACKGROUND

On December 28, 2005, defendant pled guilty to counts of uttering counterfeit obligations

and dealing in counterfeit obligations in violation of 18 U.S.C. §§ 471 and 473 and to two counts

of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

The counterfeiting charges were in one indictment and the drug charges in another. A sentencing

hearing was conducted on March 28, 2006, at which defendant objected to the inclusion of a two-

level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a firearm in connection with
the July 25, 2005, drug trafficking offense. Officers had recovered a .32 caliber revolver loaded with

five bullets from underneath the mattress in defendant’s bedroom and found crack cocaine, powder

cocaine, marijuana, and a digital scale in the top drawer of the dresser in the same bedroom.

McCurry protested the enhancement, testifying that his firearm possession was not in relation to the

drugs but rather was an attempt to protect himself and his family, who had been threatened.

Additionally, McCurry argued that a shorter sentence would have been appropriate and adequate in

light of the misdemeanor nature of his past offenses. The district court rejected these arguments and,

finding that the probation officer’s Guidelines calculations were correct, sentenced the defendant on

both cases to 70 months, to run concurrently, and to three years of supervised release. When

sentencing the defendant, the judge expressed his opinion that “the guidelines [were] too low

because of the counterfeiting conviction getting lost in all th[e] calculation.” Nevertheless, he still

sentenced the defendant within the Guidelines, albeit near the high end of the 57-to-71-month range.

Defendant appeals his concurrent sentences.

ANALYSIS

On appeal, defendant argues that the district court erred in finding that he failed to rebut the

presumption that he possessed the firearm that was recovered from his bedroom in connection with

the July 25, 2005, controlled substance offense. This enhancement raised what would otherwise be

a Guidelines range of 46-to-57-months to 57-to-71-months. This court reviews for clear error a

district court’s factual finding that a defendant possessed a firearm during the commission of a drug

trafficking offense. United States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005). Defendant also

asserts that his sentence is unreasonable because the court imposed it “without regard to any

sentencing factor other than the Guideline incarceration range,” contrary to the post-Booker mandate

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to consider other sentencing factors contained within 18 U.S.C. § 3553(a). A district court’s

sentencing determination is reviewed for reasonableness. United States v. Booker, 543 U.S. 220, 261

(2005). Our study of the sentencing hearing transcript indicates that the district judge engaged in a

thorough and appropriate review of the U.S.S.G. § 2D1.1(b)(1) sentencing enhancement and the 18

U.S.C. § 3553(a) statutory factors, and thus neither of defendant’s grounds for appeal have merit.

Defendant argues that the district court erred in applying a two-level sentencing enhancement

pursuant to U.S.S.G. § 2D1.1(b)(1) because the government did not satisfy its burden in proving that

“the weapon was present [and] it is [not] clearly improbable that the weapon was connected with the

offense.” U.S.S.G. § 2D1.1 cmt. n.3. Past cases outline a two-part process for the application of this

enhancement provision. First, the government must show by a preponderance of the evidence that

the defendant possessed a firearm while committing a drug trafficking offense. United States v.

Solorio, 337 F.3d 580, 599 (6th Cir. 2003). Second, if the government is successful in that showing,

the burden then shifts to the defendant to show that it is clearly improbable that the weapon was

connected to the offense. Id. McCurry concedes that “the government met its initial burden [by]

showing that the firearm was located in the bedroom with the defendant” and that “the drugs were

in the night-stand and the gun was stored underneath the mattress.” Defendant asserts that he

rebutted the presumption of possession of the weapon in relation to the drug trafficking offense with

his testimony that he and his family had been living in fear of a violent attack by a suspected

murderer and that the gun was not stored with the drugs. However, the presentation of an alternative

theory for possession of the gun does not render connection of the gun to the drugs “clearly

improbable.” See United States v. McGhee, 882 F.2d 1095, 1100 (6th Cir. 1989). This circuit’s

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jurisprudence also indicates that a “defendant’s mere possession of a weapon during narcotics

commerce . . . trigger[s] the section 2D1.1(b)(1) enhancement because the possibility existed that

the defendant would have used the gun during the drug transaction had he thought it necessary.”

United States v. Dunlap, 209 F.3d 472, 478-79 (6th Cir. 2000) (internal citation omitted). Here,

defendant admitted to possession of a firearm kept in the same room as the drugs, and that firearm

was loaded. The district judge considered McCurry’s protection explanation and appropriately

concluded that “one can come into possession of a gun for a perfectly legitimate reason and still use

it or have it available for use during a drug trafficking crime.” He went on to postulate reasonably

that “[i]f someone had come in to purchase these drugs that Mr. McCurry admitted he intended to

distribute, and they wouldn’t pay him, . . . Mr. McCurry [clearly would] have been able to . . . reach[]

under the mattress and g[et] the firearm to make them pay for the drugs.” Thus, the judge’s

application of § 2D1.1(b)(1) to enhance defendant’s sentence was not in clear error.

II.

Next, the defendant asserts that the sentence imposed is unreasonable because the district

court “erroneously perceived its duty under Booker to be that of imposing a ‘reasonable’ sentence”

and “did not consider any other factor under 18 U.S.S.G. [sic] § 3553(a)” other than the Guideline

range. Booker requires an acknowledgment of the defendant’s applicable Guidelines range as well

as a discussion of the reasonableness of variation from that range. United States v. Jackson, 408

F.3d 301, 305 (6th Cir. 2005). It is true that if a judge “simply selects what [is deemed] an

appropriate sentence without [the] required consideration” of the applicable Guidelines range or the

other factors of 18 U.S.C. 3553(a), then this court “may conclude that a sentence is unreasonable.”

United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). Thus, this court generally remands to the

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district court when, in rendering the sentence, the district court failed to mention § 3553(a) or

provide sufficient information with regard to the sentence to permit reasonableness review. United

States v. McBride, 434 F.3d 470, 478 (6th Cir. 2006).

The district court’s resentencing hearing transcript demonstrates that the district court

afforded appropriate consideration to the § 3553(a) factors, and the sentence should stand as

reasonable. We focus our review of the facts on this transcript because, although defendant’s brief

laboredly summarizes the case law governing post-Booker sentencing review, it devotes woefully

little attention to the way the law applies to the circumstances of his sentencing so as to necessitate

reversal. The transcript reflects that the district court considered the nature and circumstances of the

offenses at issue. The court explicitly acknowledged that the fact that a firearm was present at the

scene and “the quantity of drugs was at the high end of the weight classification” weighed in favor

of giving the defendant a sentence higher than the minimum. The hearing transcript also indicates

that the district court considered the history and characteristics of the defendant, noting that

defendant’s past offenses put him at the top of the criminal history category.

Additionally, the court observed the sentencing needs of this particular defendant.

Recognizing that McCurry could benefit from a sentence that encompassed further education, the

judge inserted a condition that McCurry enroll in an educational program to earn a GED if he had

not obtained the degree while incarcerated. Also, the judge expressed concern that McCurry had not

received treatment or counseling to address his substance abuse problem. In response, he

recommended that defendant be allowed to serve his sentence at an institution where he could

participate in drug treatment and counseling. Given the careful consideration of the sentencing

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factors that the transcript of the sentencing hearing reveals, we are not willing to say that the district

court sentenced the defendant in a procedurally unreasonable manner.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.