UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4003
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NATHANIEL IRVING CORWIN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:15-cr-00197-WO-1)
Submitted: August 25, 2016 Decided: August 29, 2016
Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Duberstein,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Michael A. DeFranco, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathaniel Irving Corwin appeals his conviction and 114-
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, Corwin’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
Sentencing Guidelines enhancement under U.S. Sentencing
Guidelines Manual § 2K2.1(a)(2) (2014). Corwin has filed a pro
se supplemental brief, echoing counsel’s argument regarding the
USSG § 2K2.1(a)(2) enhancement and also challenging his
Guidelines enhancement under USSG § 2K2.1(b)(6)(B). The
Government has declined to file a response brief. For the
reasons that follow, we affirm.
In considering a sentencing court’s Guidelines
calculations, we review issues that turn primarily on factual
determinations for clear error and issues that turn primarily on
legal interpretations of the Guidelines de novo. United States
v. Dowell, 771 F.3d 162, 170 (4th Cir. 2014). We consider
unpreserved challenges to Guidelines calculations for plain
error. United States v. Hamilton, 701 F.3d 404, 410 (4th Cir.
2012); see Henderson v. United States, 133 S. Ct. 1121, 1126-27
(2013) (describing standard).
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The Guidelines prescribe a base offense level of 24 for a
defendant convicted of a § 922(g) offense who “committed any
part of the instant offense subsequent to sustaining at least
two felony convictions of either a crime of violence or a
controlled substance offense.” USSG § 2K2.1(a)(2); see USSG
2K2.1 cmt. n.1 (defining “controlled substance offense” by
reference to USSG § 4B1.2). Among other requirements, a
controlled substance offense must be “punishable by imprisonment
for a term exceeding one year.” USSG § 4B1.2(b); see USSG
§ 2K2.1 cmt. n.1 (defining “felony conviction”). Corwin and his
counsel assert that Corwin’s prior North Carolina conviction for
possession with intent to sell or deliver marijuana does not
qualify as a felony offense under United States v. Simmons, 649
F.3d 237, 248-50 (4th Cir. 2011) (en banc), as his maximum
presumptive term of 17 months’ imprisonment included a mandatory
9-month period of post release supervision. However, as counsel
concedes, this argument is squarely foreclosed by our recent
decision in United States v. Barlow, 811 F.3d 133, 140 (4th Cir.
2015), cert. denied, 136 S. Ct. 2041 (2016). Because Corwin’s
state conviction was punishable by imprisonment for a term
exceeding one year, it was properly classified as a felony under
USSG § 2K2.1 and used as a predicate to enhance Corwin’s base
offense level.
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Corwin also contends that the court erred in imposing an
enhancement under USSG § 2K2.1(b)(6)(B), based on its finding
that he possessed a firearm in connection with the felony
offense of possession with intent to sell or deliver heroin.
Under the Guidelines, the requirement that the firearm be
possessed “in connection with” a felony drug offense is
satisfied “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,” as the firearm necessarily
“has the potential of facilitating another felony offense.”
USSG § 2K2.1 cmt. n.14(B); see United States v. Jenkins, 566
F.3d 160, 163 (4th Cir. 2009). The “in connection with”
requirement is satisfied when “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, 464 (4th Cir.
2011) (internal quotation marks omitted).
Here, the record reveals that Corwin voluntarily stipulated
to this enhancement as part of his plea agreement. Although his
stipulation was not binding on the district court, see Fed. R.
Crim. P. 11(c)(1)(B), we find no error, plain or otherwise, in
the court’s application of the enhancement, in light of the
proximity of Corwin’s three firearms to heroin and drug
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paraphernalia and of evidence indicating the firearms’
protective purpose.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Corwin, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Corwin 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 Corwin.
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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