United States v. Michael Colley, 4th Cir. (2012)
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Scribd Government DocsUnited States v. Michael Colley, 4th Cir. (2012)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4107
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL BRAD COLLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00172-CCE-1)
Submitted:
August 31, 2012
Decided:
September 6, 2012
Before SHEDD, DAVIS, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant.
Ripley Rand, United States Attorney, Frank J.
Chut, Jr., Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Brad Colley pled guilty to possession of a
firearm by a convicted felon, 18 U.S.C. 922(g)(1) (2006), and
was sentenced to a term of seventy-two months imprisonment.
Colley
appeals
application
firearm
in
Sentencing
of
his
a
sentence,
four-level
connection
Guidelines
contesting
the
district
enhancement
for
possession
another
felony
with
Manual
courts
of
offense,
U.S.
(2011).
We
investigation
into
2K2.1(b)(6)(B)
affirm.
Colley
was
arrested
after
an
counterfeiting activities that included a controlled purchase of
$20,700
in
confidential
counterfeit
United
informant.
At
States
currency
arrest,
Colley
counterfeit currency with him.
mobile
home
where
he
lived
from
had
him
by
$24,000
a
in
When investigators searched the
with
his
wife
and
three
young
children, they found equipment for making counterfeit currency
in the master bedroom.
In the same room, within a few feet of
the printers, were four firearms:
a 9 mm semiautomatic rifle; a
shotgun; a 22 caliber rifle; and a 5.56 caliber, Law Enforcement
model rifle, which was loaded with a magazine capable of firing
fifteen rounds at a time.
Two more magazines capable of firing
more than fifteen rounds were near that gun.
Also in the same
room were three boxes of exploding targets, a bag of ammunition
and handgun holsters, a forearm light for an assault rifle, and
2
$930
in
counterfeit
currency.
Colley
maintained
that
the
firearms had nothing to do with his counterfeiting operation;
however, the district court concluded that the purpose of the
firearms was to protect it.
We
review
sentence
under
deferential
abuse
of
discretion standard, see Gall v. United States, 552 U.S. 38, 46
(2007), which first requires that we review the sentence for
significant procedural error, such as improperly calculating the
Guidelines range.
Id. at 51.
Under USSG 2K2.1(b)(6)(B), a
four-level increase in offense level is appropriate [i]f the
defendant
used
or
possessed
any
firearm
connection with another felony offense.
or
ammunition
in
USSG 2K2.1(b)(6)(B);
see also United States v. Blount, 337 F.3d 404, 407-10 (4th Cir.
2003). *
firearm
that
is
present
merely
coincidence does not trigger the enhancement.
by
accident
or
United States v.
Jenkins, 566 F.3d 160, 163 (4th Cir. 2009) (citing Blount, 337
F.3d at 411).
A firearm is used or possessed in connection
with another offense if [it] facilitates or has a tendency to
facilitate the [other] offense.
United States v. Hampton, 628
F.3d 654, 663 (4th Cir. 2010) (quoting Blount, 337 F.3d at 411
(internal
quotation
marks
omitted)).
The
requirement
is
satisfied if the firearm . . . was present for protection or to
*
Construing former USSG 2K2.1(b)(5).
embolden the actor.
609,
613
(internal
(4th
United States v. Alvarado Perez, 609 F.3d
Cir.
2010)
(quoting
Blount,
quotation
marks
omitted)).
The
337
F.3d
at
district
411
courts
determination that the firearm had the potential to facilitate
the other offense is a factual finding reviewed for clear error.
Jenkins, 566 F.3d at 163.
Here, the district court found that the number and
nature
of
the
firearms
indicated
that
they
were
present
to
protect Colleys counterfeit operation and that they were not
the type of firearms that would ordinarily be found in a home
where small children lived, even if they were present for the
protection of the family.
Colleys
possession
potential
to
protect
of
his
The district court concluded that
such
heavy-duty
counterfeit
firepower
operation
firearms were possessed for that reason.
and
had
the
that
the
We are satisfied that
the courts finding was not clearly erroneous.
We therefore affirm the district courts judgment.
dispense
with
oral
argument
because
the
facts
and
We
legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
