UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4193
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE LAMONTE BALDWIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:11-cr-00065-F-1)
Submitted: September 21, 2012 Decided: October 3, 2012
Before WILKINSON, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Lamonte Baldwin pled guilty to unlawful
possession of firearms and ammunition by a convicted felon, 18
U.S.C. § 922(g)(1) (2006), and was sentenced to a term of
eighty-seven months’ imprisonment. Baldwin appeals his
sentence, asserting that the district court clearly erred in
applying the cross reference in U.S. Sentencing Guidelines
Manual § 2K2.1(c)(1) (2011) to USSG § 2D1.1 on the ground that
Baldwin possessed the firearms in connection with drug
trafficking. We affirm.
North Carolina law enforcement officers investigating
suspected drug sales at Baldwin’s residence went to his mobile
home in August 2010. When they arrived, Baldwin and three other
men emerged from an outbuilding ten to fifteen yards behind his
home. Baldwin consented to a search of his home, where the
investigators found a loaded 12 gauge shotgun and a loaded,
stolen handgun. In the outbuilding, they found a small bag of
marijuana and a box of 20 gauge shotgun shells. The men with
Baldwin were interviewed and patted down. Benny Locklear, Jr.,
had concealed inside his pants a rubber glove containing 11.7
grams of powder cocaine, 9.1 grams of crack cocaine, and several
prescription pills; he also had a set of digital scales in his
pocket. Melvin McLauchlin said Baldwin handed the blue glove to
Locklear just before Baldwin went outside to meet the
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investigators. When Locklear was interviewed, he admitted that
Baldwin gave him the glove and that he believed that the glove
contained drugs.
Baldwin voluntarily told investigators that he had
someone else buy the shotgun for him because, with prior felony
drug convictions, he could not own firearms. He said could not
remember how he obtained the handgun. Baldwin said he needed
firearms to protect his family because he had been robbed and
shot at his home about five years earlier. Baldwin admitted
that he had been selling cocaine during the past six months and
had sold crack that morning. He said he bought one ounce of
cocaine every two weeks, cooked half of it into crack, and sold
both the powder cocaine and crack. He admitted that the drugs
found in the blue glove obtained from Locklear belonged to him.
Investigators later learned that the shotgun was bought in 2001
and that the handgun had been stolen in July 2005.
After Baldwin’s guilty plea to the instant federal
felon-in-possession offense, the probation officer recommended a
base offense level of 30, which was computed by applying the
cross reference from USSG § 2K2.1(c)(1) to USSG § 2D1.1 because
Baldwin possessed the firearms in connection with the offense of
cocaine distribution. See USSG § 2K2.1 cmt. n.14(B)(ii).
Baldwin objected, arguing that the cross reference did not apply
because Application Note 14(B)(ii) to § 2K2.1 provides that the
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cross reference applies “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.” Baldwin
argued that his firearms were not in “close proximity” to the
drugs.
At the sentencing hearing, the government presented
evidence about Baldwin’s arrest, as well as the investigation of
the robbery Baldwin experienced in October 2005. One of the
suspects apprehended after the robbery cooperated and informed
investigators that the intent of the robbers was to kill Baldwin
because he was a rival drug dealer and that they had robbed him
of crack, powder cocaine, and cash. Before overruling Baldwin’s
objection to application of the cross reference, the district
court observed that Baldwin admitted that he had been selling
drugs for the six months leading up to his arrest. The court
noted that, “a drug dealer possesses firearms to protect himself
and to protect his drugs and the proceeds of it.” The court
imposed a sentence at the low end of the Guidelines range.
We review sentences under a deferential abuse of
discretion standard, Gall v. United States, 552 U.S. 38, 46
(2007), which first requires review of the sentence for
significant procedural error, such as improperly calculating the
Guidelines range. Id. at 51. Under USSG § 2K2.1(c)(1)(A), a
cross reference to USSG § 2X1.1 and USSG § 2D1.1 is appropriate
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“[i]f the defendant used or possessed any firearm or ammunition
in connection with another felony offense,” in this case, a drug
offense. United States v. Nale, 101 F.3d 1000, 1003 (4th Cir.
1996). Under Application Note 14(B)(ii), when the other offense
is “a drug trafficking offense in which a firearm is found in
close proximity to drugs, drug-manufacturing materials, or drug
paraphernalia . . . application of subsection[] . . . (c)(1) is
warranted because the presence of the firearm has the potential
of facilitating another . . . offense.” The district court’s
determination that the firearm had the potential to facilitate
the other offense is reviewed for clear error. United States v.
Jenkins, 566 F.3d 160, 163 (4th Cir. 2009) (reviewing
§ 2K2.1(b)(6) enhancement).
Baldwin argues that the guns and the drugs found in
his home and the outbuilding were not in “close proximity,” and
that, therefore, the government failed to establish that he
possessed the guns in connection with the drug offense.
However, “close proximity” is not defined in the Guidelines or
Application Note 14(B)(ii). While it is not clear that the ten
to fifteen yards between Baldwin’s mobile home and his
outbuilding put too great a distance between the guns and drugs
for the district court to have concluded that they were in close
proximity, the court did not make a distinct finding on this
question.
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The court did find, though, that Baldwin admitted that
he was selling drugs when he was arrested and that “a drug
dealer possesses firearm to protect himself and to protect his
drugs and the proceeds of it.” Application Note 14(A) to
§ 2K2.1 provides that, in general, “subsection (c)(1) [applies]
if the firearm or ammunition facilitated, or had the potential
of facilitating . . . another offense.” When he was arrested,
Baldwin said he needed the firearms for protection because he
had been robbed and shot five years earlier. The government’s
second witness at sentencing testified that the robbery occurred
because of Baldwin’s drug activity at the time. Consequently,
because Baldwin was still engaged in selling drugs, the district
court’s conclusion that his firearm facilitated or had the
potential to facilitate his drug offense was not clearly
erroneous.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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