Filed: Oct. 18, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4509 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RODNEY LUCAS, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, Chief District Judge. (4:11-cr-00071-D-1) Argued: September 20, 2013 Decided: October 18, 2013 Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and Gina M. GROH, United States District Judge for the Northern D
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4509 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RODNEY LUCAS, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, Chief District Judge. (4:11-cr-00071-D-1) Argued: September 20, 2013 Decided: October 18, 2013 Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and Gina M. GROH, United States District Judge for the Northern Di..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4509
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RODNEY LUCAS,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:11-cr-00071-D-1)
Argued: September 20, 2013 Decided: October 18, 2013
Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and Gina M.
GROH, United States District Judge for the Northern District of
West Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Groh joined. Chief Judge Traxler wrote a
separate opinion concurring in the result.
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Joshua L.
Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, 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Unpublished opinions are not binding precedent in this circuit.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
DIAZ, Judge:
Rodney Lucas appeals the 228-month prison sentence imposed
by the district court following his guilty plea to being a
convicted felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. §§ 922(g)(1), 924. On appeal, Lucas
contends that the district court procedurally erred in applying
a four-level enhancement under the U.S. Sentencing Guidelines
(“U.S.S.G.”) § 2K2.1(b)(6)(B) because he did not possess a
firearm in connection with another felony offense. He also
argues that the sentence was substantively unreasonable. For
the reasons that follow, we reject these arguments and affirm.
I.
A.
On October 13, 2009, a confidential informant told police
in Washington, North Carolina that Lucas, a convicted felon, was
gathered with several others near a Washington residence and was
in possession of a firearm. When police officers arrived at the
scene, Lucas fled on foot and ran into the home of Helen
Guthrie. Once inside, Lucas hid a .357-magnum revolver in the
freezer. The police followed Lucas into the house and found six
rounds of .357-magnum ammunition on his person. After arresting
Lucas, officers retrieved the firearm from the freezer.
3
The police later obtained and executed a warrant to search
Lucas’s house, where they found, inter alia, 35 rounds of
hollow-point ammunition.
A grand jury charged Lucas in a two-count indictment with
possessing a firearm (Count One) and ammunition (Count Two)
after having been convicted of a crime punishable by
imprisonment for a term exceeding one year, in violation of 18
U.S.C. §§ 922(g)(1), 924. Lucas pleaded guilty to both counts
without a plea agreement.
B.
The Presentence Investigation Report (“PSR”) calculated
Lucas’s criminal history category at VI. It recommended an
adjusted offense level of 21, reflecting a four-level
enhancement pursuant to U.S.S.G. § 2K2.1, which applies when a
defendant “used or possessed any firearm or ammunition in
connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(6)(B).
The government moved for an upward departure pursuant to
U.S.S.G. § 4A1.3(a)(1), which authorizes an upward departure if
the court believes the defendant’s criminal history category
“substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” Lucas objected, requesting
4
the court sentence him within the Guidelines range on both
counts, to run concurrently or partially concurrently with an
undischarged state sentence. He argued that a more lenient
sentence was appropriate in light of his age 1 and the fact that
his last probation violation was approximately five years
earlier.
The district court determined that the four-level
enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was appropriate. It
found that Lucas committed the felony common law offense of
obstruction of justice when he hid the revolver in the freezer,
and that his illegal possession of a firearm facilitated that
offense. In the alternative, the court found that Lucas was
guilty of a felony for breaking into Guthrie’s home. The
resultant offense level of 21, in combination with the
applicable criminal history category of VI, yielded an advisory
Guidelines range of 77 to 96 months in prison.
The sentencing court then departed upward pursuant to
U.S.S.G. § 4A1.3(a)(4)(B). The court found that Lucas’s
extensive criminal record warranted a ten-level increase in the
offense level, raising the total from 21 to 31. With the
adjusted offense level, the advisory Guidelines range increased
to 188 to 235 months.
1
Lucas was forty-one years old at sentencing.
5
The court also concluded that consecutive sentences were
appropriate under U.S.S.G. § 5G1.2(d). The court explained the
need for a lengthy sentence in terms of Lucas’s extensive
criminal record:
[T]his tale of the life of crime of Rodney Lucas began
at age 17. Here we are 59 convictions later . . . .
. . . .
He has eight felony drug convictions, one felony
assault by strangulation conviction, one habitual
felon conviction. He’s committed crimes, serious
crimes, while on probation. He has committed crimes
within months or even weeks of being released from
prison.
Nothing--nothing other than incarceration seems to
slow down Rodney Lucas when it comes to being a
criminal. He truly is a one man crime wave. It’s who
he is, it’s what he does. And sadly . . . I think
it’s who [he will] always be.
J.A. 85-86.
The court imposed a 120-month sentence on Count One and a
108-month sentence on Count Two, to be served consecutively for
a total term of 228 months. This appeal followed.
II.
Our review of criminal sentences “is limited to determining
whether they are ‘reasonable.’” Gall v. United States, 552 U.S.
38, 46 (2007). Our first step is to ensure that the district
court committed no significant procedural error, such as failing
to properly calculate the advisory Guidelines range. United
States v. Rivera-Santana,
668 F.3d 95, 100 (4th Cir.), cert.
6
denied, 133 S. Ct. 274 (2012). “In assessing a challenge to a
sentencing court’s application of the Guidelines, we review the
court’s factual findings for clear error and its legal
conclusions de novo.” United States v. Alvarado Perez,
609 F.3d
609, 612 (4th Cir. 2010) (internal quotation marks omitted).
“Absent a significant procedural error, our next step is to
assess the substantive reasonableness of the sentence imposed.”
Rivera-Santana, 668 F.3d at 100. “In reviewing any sentence,
whether inside, just outside, or significantly outside the
Guidelines range, we apply a deferential abuse-of-discretion
standard.” United States v. Savillon-Matute, 636 F.3d 119, 122
(4th Cir. 2011) (internal quotation marks omitted).
III.
A.
1.
Lucas first claims that the district court procedurally
erred by applying a four-level enhancement under U.S.S.G.
§ 2K2.1. He does not argue that obstruction of justice cannot
constitute “another felony” for purposes of the enhancement. 2
2
“Obstruction of justice is a common law offense in North
Carolina” and encompasses “any act which prevents, obstructs,
impedes or hinders public or legal justice.” In re Kivett, 309
S.E.2d 442, 462 (N.C. 1983) (internal quotation marks omitted).
The offense is a felony if the conduct is “‘infamous, done in
(Continued)
7
Rather, he disputes whether a felon in possession’s act of
getting rid of the firearm can ever be “in connection with” a
felony obstruction of justice within the meaning of
§ 2K2.1(b)(6)(B).
A party possesses a firearm “in connection with” another
offense if the firearm “facilitated, or had the potential of
facilitating” the other offense. U.S.S.G. § 2K2.1 cmt. n.14(A).
A firearm satisfies this requirement when it 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. Jenkins, 566 F.3d 160, 162 (4th Cir.
2009) (internal quotation marks and citation omitted). The
requirement is not satisfied if the firearm is present by mere
“accident or coincidence.” United States v. Blount,
337 F.3d
404, 411 (4th Cir. 2003) (internal quotation marks omitted).
The district court concluded that possession of a firearm
can facilitate obstruction of justice when the conduct
underlying the obstruction consists of “ditching” the weapon to
avoid detection by law enforcement. In the district court’s
secrecy and malice, or with deceit and intent to defraud.’”
State v. Taylor, 713 S.E.2d 82, 88 (N.C. Ct. App. 2011) (quoting
N.C. Gen. Stat. § 14-3(b)). In this case, the district court
found that Lucas hid the revolver with deceit and intent to
defraud, i.e., to prevent the police from discovering his
unlawful possession of a firearm.
8
view, when a felon possesses a firearm, it is the illegal
presence of the weapon itself that motivates the felon to
discard it. And without its illegal presence, the obstruction
would not be possible. Cf. United States v. Nale, 101 F.3d
1000, 1004 (4th Cir. 1996) (finding the defendant possessed a
gun in connection with a sexual assault because the offense
“would not have been possible but for the weapon”).
In sum, the district court found that “[t]he .357 revolver
was the very subject of this obstruction of justice” and thus
“facilitated the other offense.” J.A. 70. We may reverse this
finding only for clear error, which requires that we be “left
with the definite and firm conviction that a mistake has been
committed.” United States v. Dugger, 485 F.3d 236, 239 (4th
Cir. 2007) (internal quotation marks omitted). Although the
evidence in the record did not compel the district court’s
finding, we cannot say the court’s conclusions were implausible
in light of the record as a whole. Under such circumstances, we
do not disturb the district court’s finding, even though we may
well have weighed the evidence differently. See United States
v. Hall,
664 F.3d 456, 467 (4th Cir. 2012); cf. United States v.
Hampton,
628 F.3d 654, 663-64 (4th Cir. 2010) (affirming the
district court’s finding that the defendant’s possession of a
firearm, which he never exposed to officers, facilitated the
9
felony of assaulting a police officer while resisting arrest
when it was a close call). 3
2.
Lucas also argues that applying the enhancement to his
conduct would contravene the purpose of U.S.S.G.
§ 2K2.1(b)(6)(B). We have previously recognized that the
enhancement serves to “ensure that a defendant receives more
severe punishment if, in addition to committing a firearms
offense within the scope of § 2K2.1, he commits a separate
felony offense that is rendered more dangerous by the presence
of a firearm.” Blount, 337 F.3d at 406. Lucas asserts that he
rendered the firearm less dangerous by discarding it.
However, the relevant question is not whether Lucas
rendered the firearm less dangerous by discarding it, but
whether the other felony--obstruction of justice--became more
dangerous as a result of his conduct. Had Lucas successfully
concealed his unlawful possession from law enforcement by hiding
the revolver and otherwise managed to elude the officers, he
could have retrieved the weapon after the police departed.
Moreover, leaving an unsecured firearm in someone’s home without
3
Because we find that the district court did not clearly
err in finding that Lucas’s act of discarding the gun
facilitated a felony obstruction of justice, we do not address
the district court’s alternative finding that Lucas was guilty
of breaking into Guthrie’s house.
10
the homeowner’s knowledge hardly renders the weapon less
dangerous.
Nor are we persuaded by Lucas’s argument that applying
§ 2K2.1(b)(6)(B) on these facts will expose nearly all
§ 922(g)(1) defendants to the enhancement. The fact that most
felons in possession attempt to conceal evidence of their
misconduct (even if true) should not immunize them from
punishment. Moreover, district courts must make independent
findings on all of the elements of obstruction of justice before
applying the enhancement, dispelling any concern that the
enhancement will apply to felons in possession as a matter of
course. Cf. United States v. Dunningan, 507 U.S. 87, 96-97
(1993), abrogated on other grounds, United States v. Wells,
519
U.S. 482 (1997) (the fact that “the trial court must make
findings to support all the elements of a perjury violation in
the specific case” obviates the concern that courts will enhance
sentences under U.S.S.G. § 3C1.1 for obstruction of justice as a
matter of course).
In sum, we decline to set aside the district court’s
application of § 2K2.1(b)(6)(B) to these facts. 4
4
The district court also made clear its intent to impose
“the exact same sentence on each of the[] counts” in light of
the factors enumerated in 18 U.S.C. § 3553(a). J.A. 101. We
find no abuse of discretion in the district court’s alternative
sentence. As a result, any error the district court may have
(Continued)
11
B.
Lucas also contends that his 228-month prison sentence is
substantively unreasonable. Specifically, he objects to the
district court’s decision to upwardly depart under U.S.S.G.
§ 4A1.3 based on his criminal history. He argues that the
district court improperly focused on the sheer number of past
convictions without sufficiently considering the fact that many
of those convictions were for motor vehicle offenses. He also
claims that incarceration is an ineffective deterrent to
recidivism, and he is an unlikely recidivist in any event
because of his age.
When reviewing a departure under § 4A1.3, “we consider
whether the sentencing court acted reasonably both with respect
to its decision to impose such a sentence and with respect to
the extent of the divergence from the sentencing range.” United
States v. McNeil, 598 F.3d 161, 166 (4th Cir. 2010) (internal
quotation marks omitted).
At sentencing, the district court waded through Lucas’s
extensive criminal record and carefully recounted the severity
committed in imposing the § 2K2.1 enhancement was harmless. See
Savillon-Matute, 636 F.3d at 123-24; see also United States v.
Hargrove, 701 F.3d 156, 163 (4th Cir. 2012), cert. denied,
133
S. Ct. 2403 (2013) (rejecting a narrow application of assumed
error harmless error review).
12
of his past convictions. See J.A. 79-83. It noted that Lucas
had committed several violent offenses and underscored that his
history “appears only to be getting worse.” Id. at 84.
Additionally, the court considered Lucas’s numerous parole
violations, and noted that past efforts by the North Carolina
criminal justice system to show Lucas leniency failed to stop
him from engaging in criminal conduct. It found that only a
lengthy sentence would deter Lucas and protect the community.
In these circumstances, the 228-month sentence is substantively
reasonable.
IV.
For the reasons stated above, we affirm the sentence
imposed by the district court.
AFFIRMED
13
TRAXLER, Chief Judge, concurring in the result:
I would affirm the sentence on the alternative basis given
by the district court, namely that the § 2K2.1(b)(6)(B)
enhancement was proper because Lucas committed felony breaking
or entering when he entered Guthrie’s home and because his
possession of the firearm facilitated that felony. For a
breaking or entering to be felonious under North Carolina law,
the unprivileged entry must be made with the intent to commit
another felony or larceny. See N.C.G.S. § 14-54(a); United
States v. Carr, 592 F.3d 636, 644 (4th Cir. 2010). Lucas argues
that the district court clearly erred to the extent that it
found that Lucas entered Guthrie’s residence with the intent to
obstruct justice by hiding the gun there. I believe, however,
that it was reasonable for the court to infer that Lucas, a
felon, fled from the police because he did not want to be caught
with the gun and that he entered Guthrie’s home with the intent
of hiding the gun.
Even assuming arguendo that the district court procedurally
erred in applying the enhancement, however, I agree with my
colleagues that any error was harmless. See ante at 11 n.4.
The district court unequivocally stated that its choice of
sentence did not depend on the correctness of the enhancement,
and the court declared that it would select the very same
sentence were we to hold that the enhancement did not apply.
14
Especially considering Lucas’s truly awful pattern of
recidivism, we have no reason whatsoever to doubt the district
court on this point. Accordingly, so long as the alternative
sentence was not an abuse of discretion, any error in applying
the enhancement was harmless. See United States v. Savillon-
Matute, 636 F.3d 119, 123 (4th Cir. 2011) (holding that when a
district court gives an alternative, substantive basis for a
sentence to account for the contingency that the district court
has committed procedural error, the alternative sentence is
reviewed for abuse of discretion, and if it is found to be
reasonable, then any remaining, alleged procedural errors are
presumed to be harmless); see also United States v. Hargrove,
701 F.3d 156, 162 (4th Cir. 2012) (rejecting the argument that
Savillon-Matute should “be read narrowly to apply only under the
unique circumstances of that case”), cert. denied,
133 S. Ct.
2403 (2013).
I do not believe that the alternative sentence constituted
an abuse of discretion. The court discussed in great detail
Lucas’s criminal record of 59 convictions, which included many
violent crimes. The court also noted that Lucas had violated
his probation on several occasions and found that he was
“exceptionally violent” and “a committed drug dealer” whose
proclivity for crime had only increased over the years. J.A.
86. These observations were well founded and, if the
15
§ 2K2.1(b)(6)(B) enhancement did not apply, a significant upward
departure under U.S.S.G. § 4A1.3 would have been justified in
light of both the seriousness of Lucas’s criminal history and
the significant chance of his recidivism.
16
