UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4088
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN LANIER BRITT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Terry L. Wooten, Chief District
Judge. (3:14-cr-00069-TLW-1)
Submitted: February 10, 2016 Decided: April 5, 2016
Before DIAZ, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Jimmie Ewing, William E. Day, II, Assistant United
States Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Lanier Britt appeals the 100-month sentence imposed by
the district court after he pled guilty to conspiracy to
distribute and possess with intent to distribute oxycodone, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012). Britt’s
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that he has found no meritorious
grounds for appeal but raising potential issues regarding the
denial of Britt’s request for a downward departure or variance.
Britt has filed a pro se supplemental brief arguing that the
district court erred in calculating his drug quantity, and that
appellate counsel was ineffective for stating that the denial of
his variance request is not a meritorious issue. We directed
supplemental briefing on the issue of whether the district court
plainly erred by enhancing Britt’s sentence based on his
possession of a dangerous weapon. We affirm.
The sentence enhancement for possession of a dangerous
weapon applies “if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.”
U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n.11(A). “In
assessing whether a defendant possessed a firearm in connection
with relevant drug activity, a sentencing court is entitled to
consider several pertinent factors,” including “the type of
firearm involved,” “the location or proximity of a seized
2
firearm,” and “the settled connection between firearms and drug
activities.” United States v. Manigan, 592 F.3d 621, 629 (4th
Cir. 2010). “For example, the enhancement would not be applied
if the defendant, arrested at the defendant’s residence, had an
unloaded hunting rifle in the closet.” USSG § 2D1.1 cmt.
n.11(A); see Manigan, 592 F.3d at 629 (noting that “a drug
trafficker is much more likely to utilize a handgun — as opposed
to a rifle or long gun — due to size and concealability”).
The defendant bears the burden of “show[ing] that a
connection between his possession of a firearm and his narcotic
offense is ‘clearly improbable.’” United States v. Slade, 631
F.3d 185, 189 (4th Cir. 2011); cf. United States v. Gomez-
Jimenez, 750 F.3d 370, 380 (4th Cir.) (affirming application of
§ 2D1.1(b)(1) enhancement where “[u]ndisputed portions of the
PSR g[a]ve every reason to believe that the weapons” seized from
coconspirator’s bedroom in shared residence “were connected to
the conspiracy”), cert. denied, 135 S. Ct. 305, 384 (2014).
Because Britt did not challenge the application of the weapon
enhancement at sentencing, we review for plain error. United
States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015);
see Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013)
(discussing plain error standard).
The type of weapon — a shotgun rather than a handgun — is
not dispositive in this case, as Britt dealt drugs from his
3
home, and thus did not need to covertly carry the firearm on his
person to protect the drugs and drug proceeds. While the fact
that the shotgun was in Britt’s father’s bedroom rather than
Britt’s bedroom weighs against the enhancement, the fact that it
was loaded with two different types of shot and the lack of
evidence that Britt or his elderly father used it for hunting
support the connection to Britt’s drug activity.
Moreover, the PSR revealed additional bases for the
enhancement. See United States v. Basham, 789 F.3d 358, 379
(4th Cir.) (“[W]e are, of course, entitled to affirm on any
ground appearing in the record, including theories not relied
upon or rejected by the district court.” (internal quotation
marks omitted)), petition for cert. filed, ___ U.S.L.W. ___
(U.S. Oct. 16, 2015) (No. 15-6560). The PSR indicated that one
of the purchasers of Britt’s drugs reported that Britt had a
firearm, and ammunition for firearms other than the shotgun was
found throughout Britt’s house. Furthermore, the PSR expressly
linked a machete to Britt’s drug trafficking activities, and the
machete itself is sufficient to support the enhancement. See
USSG § 1B1.1 cmt. n.1(D) (defining “dangerous weapon” to include
any “instrument capable of inflicting death or serious bodily
injury”); USSG § 2D1.1 cmt. n.11(A) (incorporating this
definition). Accordingly, we conclude that the district court
did not err, plainly or otherwise, in applying this enhancement.
4
In his pro se supplemental brief, Britt argues that the
district court erred in calculating his drug quantity because
there was no direct evidence that he had sold the pills that
were missing from the prescription bottles seized from his home.
We find that the district court did not err in inferring that
Britt sold the missing pills. See United States v. Leventine,
277 F.3d 454, 468 (4th Cir. 2002) (affirming enhancement based
on circumstantial evidence).
Finally, counsel questions whether the district court
erroneously denied Britt’s request for a downward variance or
departure, and Britt argues that appellate counsel was
ineffective for filing an Anders brief on this issue. We lack
authority to review the district court’s denial of a departure,
and find that Britt has not overcome the presumption that the
district court’s decision to deny his variance request and
impose a within-Guidelines sentence was reasonable. United
States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied,
135 S. Ct. 421 (2014).
Accordingly, we conclude that there is no procedural or
substantive error in Britt’s sentence of 100 months’
imprisonment. See Gall v. United States, 552 U.S. 38, 51 (2007)
(discussing review of sentences). To the extent Britt argues
that appellate counsel was ineffective, we conclude that he has
not made the requisite showing to assert an ineffective
5
assistance claim on direct appeal and that this claim should be
raised, if at all, in a motion under 28 U.S.C. § 2255 (2012).
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008)
(“Ineffective assistance claims are generally not cognizable on
direct appeal . . . unless it conclusively appears from the
record that defense counsel did not provide effective
representation.” (internal quotation marks omitted)).
In accordance with Anders, we have reviewed the entire
record for any further meritorious grounds for appeal and have
found none. Accordingly, we deny Britt’s motion for new counsel
and affirm the district court’s judgment. This court requires
that counsel inform Britt, in writing, of his right to petition
the Supreme Court of the United States for further review. If
Britt requests that a petition be filed, but counsel believes
that such a petition would be frivolous, counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Britt. 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
6