UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4669
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT EDWARD NORTHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:11-cr-00041-H-1)
Submitted: March 28, 2013 Decided: April 2, 2013
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:
A federal grand jury charged Vincent Edward
Northington in a superseding indictment with three counts:
possession with intent to distribute a quantity of cocaine base
(“crack”) and a quantity of marijuana, in violation of 18 U.S.C.
§ 841(a)(1) (2006) (Count One); possession of firearms in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c) (2006) (Count Two); and unlawful possession of
firearms and ammunition by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2006) (Count Three). Following a
trial, a jury convicted Northington on Count Three, but was
deadlocked on Counts One and Two. A mistrial was declared on
Counts One and Two and they were subsequently dismissed. The
district court sentenced Northington to 102 months’ imprisonment
on Count Three.
Northington timely appealed, arguing that the district
court erred in applying a four-level enhancement pursuant to
U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2011) based
on the dismissed counts. We disagree.
Section 2K2.1(b)(6) provides for a four-level
enhancement “[i]f the defendant . . . used or possessed any
firearm or ammunition in connection with another felony
offense.” The enhancement was based on items, including a .357
revolver and a 9 mm automatic handgun, found in a brown leather
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Louis Vuitton bag recovered from the floorboard of the back seat
of the vehicle in which Northington had been a passenger at the
time of his arrest.
The Government presented evidence linking Northington
to the bag. The driver of the vehicle testified that she had
seen Northington with the bag many times and that he had it with
him when she picked him up that night. Furthermore,
circumstantial evidence tied Northington to the bag: the bag
was found on the floorboard of the back seat and Northington was
the only back seat passenger; while Northington was still in the
back seat, an officer observed Northington digging into
something near his feet; Northington was the only male in the
vehicle and the bag contained men’s cologne and gloves of a size
suggesting they belonged to a man; there was a letter labeled “G
Money” in the bag and Northington was known as “G;” and the
bullet found in his pants pocket could be fired from one of the
firearms in the bag. Additionally, the court could infer from
Northington’s flight from the scene that he was involved in
serious illegal activity. Cf. United States v. Jeffers, 570
F.3d 557, 568 (4th Cir. 2009) (recognizing that consciousness of
guilt may be inferred from flight and can support jury’s guilty
verdict). Finally, the bag contained not only firearms, but
other indicia of drug trafficking including a digital scale and
baggies commonly used in drug distribution. See, e.g., United
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States v. Carrasco, 257 F.3d 1045, 1048 (9th Cir. 2001) (stating
that plastic baggies and scales are known tools of drug trade);
United States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999) (“Guns
are tools of the drug trade.”).
Northington argues that the jury’s inability to
convict on Counts One and Two called into question the
credibility of the evidence connecting Northington to the drugs
and firearms. However, a court can consider even “uncharged and
acquitted conduct in determining a sentence, as long as that
conduct is proven by a preponderance of the evidence.” United
States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009). The
Government satisfies the preponderance standard by establishing
“that the existence of a fact is more probable than its
nonexistence.” United States v. Manigan, 592 F.3d 621, 631 (4th
Cir. 2010) (internal quotation marks omitted). Thus, on the
record before us, we conclude that the district court did not
err in applying the sentencing enhancement.
Accordingly, we affirm the district court’s judgment.
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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