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United States v. Murry, 04-4035 (2004)

Court: Court of Appeals for the Fourth Circuit Number: 04-4035 Visitors: 31
Filed: Oct. 04, 2004
Latest Update: Feb. 12, 2020
Summary: Rehearing granted, June 2, 2005 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4035 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus MICHAEL BERNARD MURRY, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (CR-03-128) Submitted: May 26, 2004 Decided: October 4, 2004 Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam op
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                   Rehearing granted, June 2, 2005

                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4035



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MICHAEL BERNARD MURRY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (CR-03-128)


Submitted:   May 26, 2004                  Decided:   October 4, 2004


Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant.   Kasey Warner, United States Attorney, Stephanie L.
Haines, Assistant United States Attorney, Huntington, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Michael Bernard Murry pled guilty to possession of a

firearm   by    a   convicted    felon,        in    violation    of   18    U.S.C.

§§ 922(g)(1) and 924(a)(2) (2000).              The district court sentenced

him to sixty-five months in prison.                 Murry appeals his sentence,

challenging the district court’s decision to enhance his sentence

under U.S. Sentencing Guidelines Manual § 2K2.1(b)(1)(A) (2002), on

the ground that he possessed a firearm in connection with another

felony offense.     We affirm.

           Murry, a convicted felon, was a passenger in a car that

police officers stopped for reckless driving.                   Officers found a

pistol in a case under Murry’s seat.            In addition, Murry possessed

a distributable quantity of cocaine base.                Murry objected to the

probation officer’s recommendation for a four-level enhancement

because Murry possessed a firearm in connection with another felony

offense, namely possession with intent to distribute cocaine base.

He contended that there was insufficient evidence that the firearm

and the drug offense were related. On appeal, he challenges the

district court’s application of the enhancement.

           Section 2K2.1(b)(5) provides for a defendant’s offense

level to be enhanced by four levels if he used or possessed a

firearm   “in   connection      with    another        felony    offense.”     The

government bears the burden of proving the necessary facts by a

preponderance of the evidence, and we “review the district court’s


                                       - 2 -
findings of fact for clear error, giving due deference to the

district court’s application of the Guidelines to the facts.”

United States v. Garnett, 
243 F.3d 824
, 828 (4th Cir. 2001).

            In this Circuit, “in connection with” is treated as

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

(2000).     United States v. Blount, 
337 F.3d 404
, 411 (4th Cir.

2003).     In other words, the firearm must facilitate or have the

tendency    to    facilitate    another      offense.      
Id. at 411 (citing
Garnett, 243 F.3d at 829
).          “‘[T]he firearm must have some purpose

or effect with respect to the . . . crime; its presence or

involvement cannot be the result of accident or coincidence.’” 
Id. (quoting Smith v.
  United    States,     
508 U.S. 223
,    238   (1993))

(modification in original).             However, the government has met its

burden of establishing that the firearm was used or possessed in

connection with another felony if it shows that the gun was

“present    for    protection      or   to   embolden    the     actor.”      United

States v. Lipford, 
203 F.3d 259
, 266 (4th Cir. 2000) (citation

omitted).

            Here, Murry was traveling in a car with a distributable

quantity of cocaine base on his person and a firearm he admitted

was his within his reach under his seat.                Under the facts of this

case, we find that the district court did not clearly err in

determining that the enhancement applied.




                                        - 3 -
           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




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Source:  CourtListener

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