UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4258

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

GARRON MCMILLIAN,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Malcolm J. Howard, Senior District Judge. (7:17-cr-00097-H-3)

Submitted: December 6, 2018 Decided: December 26, 2018

Before DUNCAN and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Lynne L. Reid, LL REID LAW, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Phillip A. Rubin, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Based on a February 10, 2017, incident, the United States indicted Garron

McMillian and James Spencer Bell on one count of possessing a firearm after being

convicted of a felony, and aiding and abetting one another, in violation of

and 922(g)(1). 1 McMillian, who pled guilty without a plea agreement, now appeals his

51-month sentence, arguing that the district court procedurally erred by finding that he

possessed the firearm in connection with another felony offense and consequently

applying the four-level enhancement set forth in U.S.S.G. § 2K2.1(b)(6)(B). We affirm.

The uncontested evidence presented below establishes that on February 10, 2017,

local law enforcement officers in Lumberton, NC, were executing a narcotics search

warrant at a residence, when they observed Bell and McMillian arrive at an adjacent

residence in a truck driven by Bell. Recognizing the officers’ presence, Bell (with

McMillian still in the truck) fled, driving at a high rate of speed and eventually off the

road into an open field, where he attempted to flee on foot. The officers quickly

apprehended Bell and found eight grams of marijuana and a digital scale on him. After

ordering McMillian from the truck, officers found a stolen .45 caliber pistol inside.

Officers also found another digital scale and a stolen .40 caliber pistol in the flight path of

the truck, and they found 22 grams of crack cocaine in Bell’s flight path on foot.

1 The United States also indicted Bell, who was described as a “notorious drug trafficker,” J.A. 57, on several other drug and firearm charges.

2 As noted, McMillian challenges the district court’s application of U.S.S.G. §

2K2.1(b)(6)(B). 2 The sentencing guidelines are only advisory, but “improper calculation

of a guideline range constitutes significant procedural error, making the sentence

procedurally unreasonable and subject to being vacated.” United States v. Hargrove,

(4th Cir. 2012). To assess whether a district court properly calculated the

guideline range, including its application of any sentencing enhancements, we review the

court’s legal conclusions de novo and its factual findings for clear error. United States v.

Fluker,

(4th Cir. 2018).

In pertinent part, § 2K2.1(b)(6)(B) provides for a four-level enhancement to the

base offense level if the defendant “used or possessed any firearm or ammunition in

connection with another felony offense; or possessed or transferred any firearm or

ammunition with knowledge, intent, or reason to believe that it would be used or

possessed in connection with another felony offense.” “The purpose of this enhancement

is 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 (or facilitates

another person’s commission of an offense involving a firearm).” United States v. Blount,

2 The probation officer who prepared McMillian’s presentence report recommended that the district court apply the enhancement but noted that the advisory sentencing range would be 41-51 months without it. Over McMillian’s objection, the court applied the enhancement and calculated the advisory range to be 51-63 months. Although the court denied McMillian’s request for a downward variance, it did sentence him to the low end of the advisory range.

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(4th Cir. 2003). We have explained that a defendant possesses a

firearm “in connection with another felony offense” when the firearm facilitated, or had

the potential of facilitating, the other offense, and this requirement is satisfied if the

firearm 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. McKenzie-

Gude,

(4th Cir. 2011). The commentary to § 2K2.1 specifically

provides that a defendant possesses a firearm in connection with another felony “in the

case of a drug trafficking offense in which a firearm is found in close proximity to drugs,

drug-manufacturing materials, or drug paraphernalia . . . because the presence of the

firearm has the potential of facilitating [that drug-trafficking] felony offense.” U.S.S.G. §

2K2.1 cmt. n. 14(B).

In making his objection to the § 2K2.1(b)(6)(B) enhancement during the

sentencing hearing, McMillian argued that he had no ownership interest in the truck,

none of the drug contraband was found where he was a passenger, and there was no

evidence that he knew Bell possessed any drugs. Although the district court asked

McMillian’s counsel why McMillian was in the truck with Bell, counsel could not offer a

concrete answer; instead counsel simply described McMillian’s relationship with Bell as

a “boneheaded move.” J.A. 55. After hearing argument from the government, the court

overruled the objection, finding that McMillian’s possession of a stolen firearm in the

vehicle with Bell, “who was found with marijuana, cocaine, digital scales, [and] another

firearm, is evidence that [McMillian] had reason to believe the firearm of the incident

4 offense would be used in connection with another felony offense as needed; to wit, a drug

trafficking crime.” J.A. 58.

On appeal, McMillian acknowledges that the record supports a finding that Bell

was engaged in drug trafficking during the February 10, 2017, incident, but he reiterates

his argument that there is insufficient evidence to connect him to Bell’s activity. Having

carefully reviewed the record in light of the controlling legal principles, we are satisfied

that the district court did not clearly err in finding that McMillian possessed the firearm

in connection with Bell’s drug trafficking activity. It therefore follows that the court

appropriately applied the § 2K2.1(b)(6)(B) enhancement.

Based on the foregoing, we affirm McMillian’s sentence. 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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