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United States v. Cruz, 05-4807 (2006)

Court: Court of Appeals for the Fourth Circuit Number: 05-4807 Visitors: 20
Filed: Feb. 15, 2006
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4807 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JOSE TOMAS MACEDA CRUZ, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., District Judge. (CR-05-6) Submitted: January 31, 2006 Decided: February 15, 2006 Before NIEMEYER, LUTTIG, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Jessica Salvini, SALVI
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                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4807



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOSE TOMAS MACEDA CRUZ,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (CR-05-6)


Submitted:   January 31, 2006          Decided:     February 15, 2006


Before NIEMEYER, LUTTIG, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jessica Salvini, SALVINI & BENNETT, L.L.C., Greenville, South
Carolina, for Appellant.     Jonathan S. Gasser, United States
Attorney, Maxwell Cauthen, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Jose Tomas Maceda Cruz, an illegal alien, pled guilty to

possession of counterfeit securities, 18 U.S.C.A. § 472 (West Supp.

2005) (Count One), and possession of a firearm by a prohibited

person, 18 U.S.C. § 922(g)(5)(A) (2000) (Count Two), and was

sentenced to a term of eighteen months imprisonment.              Cruz appeals

his    sentence,    contending     that   the    sentence     violated   United

States v. Booker, 
543 U.S. 220
(2005), and that the district court

erred in finding that Cruz possessed a firearm in connection with

the counterfeiting offense.        See U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(5) (2004).        We affirm.

           Cruz was stopped for speeding and was found to be in

possession of a firearm and $120 in counterfeit currency.                     The

district court determined that a four-level sentence enhancement

was applicable because Cruz possessed the firearm in connection

with   another     felony   offense;    that    is,   his   possession   of   the

counterfeit currency.        Cruz argues that it was simply coincidence

that the gun and the counterfeit money were both present in the car

when he was stopped.        In this circuit, “in connection with” has the

same meaning as “in relation to,” as used in 18 U.S.C.A. § 924(c)

(West 2000 & Supp. 2005).        United States v. Blount, 
337 F.3d 404
,

411 (4th Cir. 2003).        Thus, the weapon must facilitate or have the

potential to facilitate the other offense; its presence may not be

accidental or coincidental.         
Id. (citing Smith v.
United States,


                                       - 2 -

508 U.S. 223
, 238 (1993)).    In an appropriate case, the government

may meet its burden of proof by showing that the gun “provid[ed] a

means of protection or intimidation,” 
Smith, 508 U.S. at 238
, or

that the defendant “prepared for this contingency by keeping the

firearm close at hand.”      
Blount, 337 F.3d at 411
.   Because Cruz

chose to have the gun with him while he was in possession of

counterfeit currency, we conclude that the district court did not

clearly err in finding, impliedly, that Cruz possessed the firearm

to protect himself and his property, including the counterfeit

currency.

            No Booker error occurred because the district court

treated the guidelines as advisory.      See United States v. Hughes,

401 F.3d 540
, 546 (4th Cir. 2005) (after Booker, sentencing court

must still make appropriate findings of fact to calculate the

guideline range and consider the range with other relevant factors

before imposing sentence).

            We therefore affirm the sentence imposed by the district

court.   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




                                 - 3 -

Source:  CourtListener

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