UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4094
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM DEVON EVANS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. W. Earl Britt, Senior District Judge. (5:17-cr-00140-BR-1)
Argued: December 13, 2018 Decided: January 23, 2019
Before WILKINSON, HARRIS, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished opinion. Judge Quattlebaum wrote the opinion, in which Judge
Wilkinson and Judge Harris joined.
ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr.,
United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Seth
Morgan Wood, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
QUATTLEBAUM, Circuit Judge:
William Devon Evans pled guilty, without a plea agreement, to theft of firearms
from a federal firearm licensee, in violation of 18 U.S.C. §§ 922(u) and 924(a)(2);
possession of stolen firearms, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2); and
possession of firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). He was sentenced to 41 months’ imprisonment and three years’ supervised
release on each of the three counts to be served concurrently. On appeal, Evans
maintains that the district court erred in applying a four-level enhancement under
U.S.S.G. § 2K2.1(b)(5) for trafficking firearms and a four-level enhancement under
U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony
offense. For the reasons set forth below, we affirm the district court.
I.
A.
Evans’ conviction arose from events in connection with the theft of firearms from
Evans’ employer, Arrow Pawn. On or around October 20, 2016, Arrow Pawn, a pawn
shop and federal firearms licensee in Raleigh, North Carolina, conducted an audit and
discovered that six firearms were missing from the store. Law enforcement spoke with
Evans regarding the incident as part of the investigation that ensued. 1
1
At the time of Evans’ employment he was a convicted felon. He had also been
classified by the North Carolina Department of Public Safety as a member of the United
Blood Nation street gang.
3
During the investigation, Evans initially told law enforcement that he hid the
firearms at several different locations in Raleigh. He thereafter changed his story and
stated that he gave the firearms to an acquaintance named Charron Butts. During the
investigation, law enforcement reviewed the contents of Butts’ cell phone and found
photographs and videos of Butts and Evans possessing and displaying some of the
firearms, holding money and making Blood gang member signs. Law enforcement
interviewed Butts who eventually admitted that Evans brought the firearms to his house.
Police recovered three of the six stolen firearms. A Taurus Millennium was
recovered next to a fence in the backyard of a residence during the execution of a search
for illegal drug sales at that residence. A Taurus PT 840 was recovered in the possession
of an individual at an apartment complex where officers were investigating a drug
violation. Finally, a Smith & Wesson .40 caliber was recovered from a coat closet during
the police’s investigation related to the theft of a car and search of a nearby home.
After Evans’ plea, the probation office prepared a Presentence Report (“PSR”)
which assigned Evans a base offense level of 14 because he was previously convicted of
a felony and was prohibited from possessing the firearm at the time of the offense. 2
Because the offense involved six stolen firearms, the base level was enhanced by two.
The PSR also recommended a four-level enhancement based on Evans’ involvement in
trafficking stolen firearms to Butts. The PSR recommended another four-level increase
based on Evans being in possession of a firearm in connection with another felony
2
The 2016 Guidelines Manual was used to calculate the offense level.
4
offense. Evans objected to the four-level enhancement for trafficking firearms in the
PSR, contending that his conduct did not fit within the definition of trafficking of
firearms as explained in the application notes to U.S.S.G. § 2K2.1. 3 Evans also objected
to the four-level enhancement for possession of firearms in connection with another
felony offense.
At the sentencing hearing, the government called Agent Larry Baer—a detective
with the City of Raleigh Police Department familiar with the case—to testify. Agent
Baer was assigned as a task force officer with the Federal Bureau of Alcohol, Tobacco
and Firearms. Agent Baer testified about the investigation, arrest and interview of Evans
as described above. He also testified about information recovered from Butts’ cell phone,
including photographs of Evans and Butts posing and making gang signs. He testified to
Evans’ change of his story about the guns. Agent Baer testified that he did not have
evidence that Evans knew any of the individuals involved in the three incidents where the
stolen firearms were located. Agent Baer testified that there were no text messages
recovered between Evans and Butts indicating what Butts was to do with the firearms.
He testified that, based on his training and experience, as well as the circumstances in this
case, he believed the other three firearms had been distributed to unknown and
unidentified persons.
3
Evans, however, did not object to the PSR’s characterization of Butts as Evans’
friend and fellow gang member.
5
The district court overruled Evans’ first objection to the PSR and found that it was
reasonable to conclude that Evans had reason to believe that weapons would be used or
disposed of unlawfully and that Evans intended as such. The court overruled the second
objection as well, indicating that stealing several guns and putting them in the hands of
“fellow gang members” had the potential for facilitating another felony. (J.A. 65.)
The district court then adopted the factual findings and guideline approach set
forth in the PSR. The district court determined that the total offense level was 21 and
criminal history was III, for a guideline imprisonment range of 46 to 57 months on each
count to run concurrently. The court granted a downward departure to criminal history
category I, which represented a guideline imprisonment range of 37 to 46 months, finding
that the original guideline calculation overstated Evans’ criminal history. The court
sentenced Evans to 41 months’ imprisonment on each count, to run concurrently;
supervised release for a term of three years on each count, all such terms to run
concurrently; restitution; as well as other mandatory, standard, and special conditions.
Evans timely appealed.
B.
This Court reviews sentences for reasonableness under an abuse-of-discretion
standard regardless of whether the sentence imposed is inside or outside of the
Sentencing Guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007). A district
court commits “significant procedural error” if it fails to properly calculate (or
improperly calculates) the Sentencing Guidelines range, fails to consider the 18
U.S.C. § 3553(a) factors, treats the Sentencing Guidelines as mandatory, selects a
6
sentence based on clearly erroneous facts or fails to adequately explain the chosen
sentence. Id. If the district court’s sentencing decision is procedurally sound, then the
appellate court should consider the substantive reasonableness of the sentence under an
abuse-of-discretion standard. Id.
When reviewing a district court’s application of the Sentencing Guidelines, factual
findings are reviewed for clear error and legal conclusions are reviewed de novo. United
States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014). “Where a [Sentencing] Guidelines
application involves a mixed question of law and fact, the applicable standard turns on
the nature of the circumstances at issue. If the application is ‘essentially factual,’ we
apply the clearly erroneous standard.” Id. (quoting United States v. Daughtrey, 874 F.2d
213, 217 (4th Cir. 1989)). “A clear error occurs where we are left with a firm and
definite conviction that a mistake has been committed.” Id. at 258.
II.
There are two sentencing enhancements at issue in this case. The first is the
“Firearm-Trafficking” enhancement. Outlining this enhancement, U.S.S.G. § 2K2.1(b)(5)
instructs as follows: “[i]f the defendant engaged in the trafficking of firearms, increase by
4 levels.” U.S.S.G. § 2K2.1(b)(5). The second enhancement is the “Another Felony
Offense” enhancement. For purposes of this enhancement, under U.S.S.G.
§ 2K2.1(b)(6)(B), “[i]f the defendant. . . .used or possessed any firearm or ammunition in
connection with another felony offense; or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to believe that it would be used or
7
possessed in connection with another felony offense, increase by 4 levels.”
U.S.S.G. § 2K2.1(b)(6)(B). We address Evans’ challenges to these enhancements in turn.
A.
To apply an enhancement under U.S.S.G. § 2K2.1(b)(5), the government must
prove by a preponderance of the evidence that the defendant engaged in firearms
trafficking. See United States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013) (setting forth
the burden of proof as to sentencing enhancements).
The Supreme Court has instructed that “district courts must still give ‘respectful
consideration’ to the now-advisory Guidelines (and their accompanying policy
statements).” Pepper v. United States, 562 U.S. 476, 501 (2011) (internal citations
omitted). The commentary to U.S.S.G. § 2K2.1 specifies that the Firearm-Trafficking
enhancement applies if two requirements are satisfied. First, the defendant must have
“transported, transferred, or otherwise disposed of two or more firearms to another
individual, or received two or more firearms with the intent to transport, transfer, or
otherwise dispose of firearms to another individual . . . .” U.S.S.G. § 2K2.1 cmt.
n.13(A)(i); see also United States v. Pineda, 770 F.3d 313, 321 (4th Cir. 2014) (noting
that the commentary to U.S.S.G. § 2K2.1 specifies that the Firearm-Trafficking
enhancement applies as long as two requirements are satisfied). Second, the defendant
must transport, transfer, or dispose of the firearms with knowledge or reason to believe
that the person receiving the firearms either (1) has a prior conviction for a crime of
violence, a controlled substance offense, a misdemeanor crime of domestic violence, or is
under a criminal justice sentence, as a person “whose possession or receipt of the firearm
8
would be unlawful,” or (2) who intended to use or dispose of the firearms unlawfully.
U.S.S.G. § 2K2.1 cmt. n.13(A)(ii), n.13(B).
There is no dispute that Evans met the first requirement relative to the Firearm-
Trafficking enhancement. Regarding the second requirement, there is no dispute that
Butts lacked the qualifying criminal history to render him a person who could not
lawfully possess firearms. Therefore, the issue for appeal concerning the Firearm-
Trafficking enhancement is whether the district court erred in finding Evans had reason
to know that Butts intended to use or dispose of the firearms unlawfully. Evans argues
that the government offered insufficient evidence to support the enhancement in this
regard. He further maintains that without sufficient evidence by the government, the
district court miscalculated Evans’ guideline range and improperly applied a four-level
increase to Evans’ offense level. Accordingly, Evans argues that the sentence is
procedurally unreasonable and must be vacated and remanded to the district court for
resentencing.
We conclude that the district court did not err in finding that Evans possessed the
requisite knowledge to support the enhancement, and thus, we find the sentence to be
reasonable. Although the sentencing court’s application of the enhancement presents a
close question, our review is for clear error as to the factual findings made by the district
court. See Adepoju, 756 F.3d at 256. And the “trial court’s fact-finding in support of
the enhancement is entitled to appropriate deference. . . .” United States v. Manigan, 592
F.3d 621, 630–31 (4th Cir. 2010).
9
As noted above, “[a] clear error occurs where we are left with a firm and definite
conviction that a mistake has been committed.” Adepoju, 756 F.3d at 258. “A court
commits clear error when it makes findings without properly taking into account
substantial evidence to the contrary.” United States v. Francis, 686 F.3d 265, 273 (4th
Cir. 2012) (citation and quotation marks omitted). In reviewing for clear error, “we, like
any reviewing court, will not reverse a lower court’s finding of fact simply because we
‘would have decided the case differently.’” Easley v. Cromartie, 532 U.S. 234, 242
(2001) (citation omitted).
With these standards in mind, viewing the totality of the circumstances—the large
number of firearms stolen, the location of the recovered firearms, the relationship
between Evans and Butts, Evans’ initial false statement about disposing of the firearms,
Evans’ admitted membership in a gang, the unopposed reference in the PSR to Butts as a
gang member, and the images of Evans and others with several of the stolen weapons and
displaying gang signs—supports the district court’s conclusion that Evans knew or had
reason to believe that his conduct would result in the firearms going to someone who
intended to use or dispose of the firearm unlawfully. For this reason, under the
deferential clear error standard, we affirm the district court’s application of the trafficking
enhancement.
B.
We now turn to the second enhancement issue on appeal. Section 2K2.1(b)(6)(B)
sets forth a four-level enhancement if the defendant: (1) “used or possessed any firearm
or ammunition in connection with another felony offense;” or (2) “possessed or
10
transferred any firearm or ammunition with knowledge, intent, or reason to believe that it
would be used or possessed in connection with another felony offense.”
U.S.S.G. § 2K2.1(b)(6)(B).
This is a two-part provision, either of which, if proved by the government by a
preponderance of the evidence, would be enough to support the enhancement. The
application notes of the commentary indicate that U.S.S.G. § 2K2.1(b)(6)(B) applies if
the firearm or ammunition facilitated, or had the potential of facilitating, another felony
offense or another offense, respectively. U.S.S.G. § 2K2.1 cmt. n.14(A). The
commentary defines “[a]nother felony offense,” as any “federal, state, or local offense,
other than the explosive or firearms possession or trafficking offense, punishable by
imprisonment for a term exceeding one year, regardless of whether a criminal charge was
brought, or a conviction obtained.” U.S.S.G. § 2K2.1 cmt. n.14(C).
Evans argues that the district court erred in applying the U.S.S.G.
§ 2K2.1(b)(6)(B) Another Felony Offense enhancement. He argues there was
insufficient evidence to show that Butts intended to use the firearms to commit felonies
or that Evans had knowledge or reason to believe that Butts intended to commit felonies. 4
Here again, Evans argues on appeal that the evidence presented to the district court
by the government was insufficient to support the application of the enhancement. But
4
Evans also argues the mere fact that a firearm was available to the defendant
during the commission of another crime is not enough to justify an enhancement.
Because we find the district court did not err concerning the “reason to believe” clause of
U.S.S.G. § 2K2.1(b)(6)(B), we need not address this challenge.
11
this is not a case completely lacking in evidence to support the enhancement. Here, the
evidence presented by the government and outlined above, although not overly robust,
convinced the fact finder that the proposition at issue was more likely to be correct than
not. See United States v. Padgett, 788 F.3d 370, 374 (4th Cir. 2015) (reviewing the
district court’s application of the preponderance of the evidence standard).
As stated above, we review the district court’s factual findings for clear error,
giving great deference to the district court’s superior position in terms of assessing the
credibility of the witnesses and making factual findings based on the entire record and the
evidence presented. In acknowledging our “proper role when passing on the conduct of
other decision-makers,” we conclude that the district court did not clearly err in applying
the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Evans v. Eaton Corp. Long
Term Disability Plan, 514 F.3d 315, 320–21 (4th Cir. 2008) (noting that the clear error
standard protects district courts’ primacy as triers of fact).
III.
We conclude that the district court did not clearly err by inferring from the totality
of the circumstances that Evans transferred the subject firearms with knowledge or reason
to believe that Butts intended to use or dispose of the firearms unlawfully and applying
the U.S.S.G. § 2K2.1(b)(5) Firearm-Trafficking enhancement. Further, we conclude that
the district court did not clearly err by inferring that the transferred firearms had the
potential to facilitate another felony offense and applying the U.S.S.G. § 2K2.1(b)(6)(B)
Another Felony Offense enhancement. The judgment of the district court is
AFFIRMED.
12