USCA4 Appeal: 21-4200 Doc: 29 Filed: 11/17/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4200

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AVONTE WARREN EVANS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:20-cr-00216-CCE-1)

Submitted: April 27, 2023 Decided: November 17, 2023

Before NIEMEYER, AGEE, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Christopher R. Clifton, Michael A. Grace, Greer B. Taylor, GRACE, TISDALE & CLIFTON, P.A., Winston-Salem, North Carolina, for Appellant. Sandra J. Hairston, Acting United States Attorney, Margaret M. Reece, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4200 Doc: 29 Filed: 11/17/2023 Pg: 2 of 3

PER CURIAM:

Avonte Warren Evans pled guilty to possessing a firearm after having been

convicted of a felony, in violation of

(g)(1), 924(a)(2). The district court

sentenced him to 90 months’ imprisonment. On appeal, Evans argues that the district court

erred in calculating his advisory Sentencing Guidelines range by applying a four-level

enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2018). He

contends that the presentence report contained allegations that were not part of the same

course of conduct as the offense of conviction and that the evidence was insufficient to link

his firearm possession to a drug trafficking offense. We affirm.

Section 2K2.1(b)(6)(B) provides for a four-level sentencing enhancement if the

defendant “used or possessed any firearm or ammunition in connection with another felony

offense.” See United States v. McDonald,

(4th Cir. 2022). The

Guidelines define “another felony offense” as “any federal, state, or local

offense, . . . punishable by imprisonment for a term exceeding one year, regardless of

whether a criminal charge was brought, or a conviction obtained.” USSG § 2K2.1, cmt.

n.14(C).

Section 3D1.2(d) of the Guidelines provides that “[a]ll counts involving

substantially the same harm shall be grouped together.” Counts involve substantially the

same harm “if the offense behavior is ongoing or continuous in nature and the offense

guideline is written to cover such behavior,” such as offenses covered by USSG 2K2.1.

USSG § 3D1.2(d). With respect to offenses for which USSG § 3D1.2(d) would require

grouping, relevant conduct includes acts “that were part of the same course of conduct or

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common scheme or plan as the offense of conviction.” USSG § 1B1.3(a)(2); see

McDonald,

. To determine if acts are part of the same course of conduct,

courts examine the degree of similarity of the offenses, the regularity (repetition) of the

offenses, and the time interval between the offenses. USSG § 1B1.3, cmt. n.5(B)(ii);

McDonald,

.

Upon examination of these factors, we conclude that the district court did not err by

finding that Evans’ December 2019 constructive possession of a firearm was relevant

conduct to his April 2020 offense of conviction because it was part of the same course of

conduct. We further conclude that the district court therefore did not err in applying the

four-level sentencing enhancement based on Evans’ use or possession of a firearm “in

connection with” another felony offense based on the December 2019 incident.

Accordingly, we affirm the district court’s judgment. 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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