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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4088
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN LANIER BRITT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Terry L. Wooten, Chief District
Judge. (3:14-cr-00069-TLW-1)
Submitted:
February 10, 2016
Decided:
April 5, 2016
Before DIAZ, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant.
William N. Nettles, United States
Attorney, Jimmie Ewing, William E. Day, II, Assistant United
States Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Lanier Britt appeals the 100-month sentence imposed by
the
district
court
after
he
pled
guilty
to
conspiracy
to
distribute and possess with intent to distribute oxycodone, in
violation of 21 U.S.C. 841(a)(1), (b)(1)(C) (2012).
Britts
counsel has filed a brief pursuant to Anders v. California, 386
U.S.
738
(1967),
stating
that
he
has
found
no
meritorious
grounds for appeal but raising potential issues regarding the
denial of Britts request for a downward departure or variance.
Britt has filed a pro se supplemental brief arguing that the
district court erred in calculating his drug quantity, and that
appellate counsel was ineffective for stating that the denial of
his variance request is not a meritorious issue.
We directed
supplemental briefing on the issue of whether the district court
plainly
erred
by
enhancing
Britts
possession of a dangerous weapon.
The
sentence
enhancement
sentence
based
on
his
We affirm.
for
possession
of
dangerous
weapon applies if the weapon was present, unless it is clearly
improbable
that
the
weapon
was
connected
with
the
offense.
U.S. Sentencing Guidelines Manual 2D1.1 cmt. n.11(A).
In
assessing whether a defendant possessed a firearm in connection
with relevant drug activity, a sentencing court is entitled to
consider
firearm
several
pertinent
involved,
the
factors,
location
2
or
including
proximity
the
of
type
a
of
seized
firearm, and the settled connection between firearms and drug
activities.
Cir. 2010).
United States v. Manigan, 592 F.3d 621, 629 (4th
For example, the enhancement would not be applied
if the defendant, arrested at the defendants residence, had an
unloaded
hunting
n.11(A);
see
rifle
Manigan,
in
592
the
closet.
F.3d
at
629
USSG
(noting
2D1.1
that
cmt.
drug
trafficker is much more likely to utilize a handgun as opposed
to a rifle or long gun due to size and concealability).
The
defendant
bears
the
burden
of
show[ing]
that
connection between his possession of a firearm and his narcotic
offense is clearly improbable.
F.3d
185,
189
(4th
Cir.
2011);
United States v. Slade, 631
cf.
United
States
v.
Gomez-
Jimenez, 750 F.3d 370, 380 (4th Cir.) (affirming application of
2D1.1(b)(1)
enhancement
where
[u]ndisputed
portions
of
the
PSR g[a]ve every reason to believe that the weapons seized from
coconspirators bedroom in shared residence were connected to
the
conspiracy),
cert.
denied,
135
S.
Ct.
305,
384
(2014).
Because Britt did not challenge the application of the weapon
enhancement at sentencing, we review for plain error.
United
States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015);
see Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013)
(discussing plain error standard).
The type of weapon a shotgun rather than a handgun is
not dispositive in this case, as Britt dealt drugs from his
3
home, and thus did not need to covertly carry the firearm on his
person to protect the drugs and drug proceeds.
While the fact
that the shotgun was in Britts fathers bedroom rather than
Britts bedroom weighs against the enhancement, the fact that it
was loaded with two different types of shot and the lack of
evidence that Britt or his elderly father used it for hunting
support the connection to Britts drug activity.
Moreover,
enhancement.
the
PSR
revealed
additional
bases
for
the
See United States v. Basham, 789 F.3d 358, 379
(4th Cir.) ([W]e are, of course, entitled to affirm on any
ground appearing in the record, including theories not relied
upon or rejected by the district court. (internal quotation
marks
omitted)),
petition
for
cert.
(U.S. Oct. 16, 2015) (No. 15-6560).
filed,
___
U.S.L.W.
___
The PSR indicated that one
of the purchasers of Britts drugs reported that Britt had a
firearm, and ammunition for firearms other than the shotgun was
found throughout Britts house.
Furthermore, the PSR expressly
linked a machete to Britts drug trafficking activities, and the
machete itself is sufficient to support the enhancement.
See
USSG 1B1.1 cmt. n.1(D) (defining dangerous weapon to include
any instrument capable of inflicting death or serious bodily
injury);
USSG
definition).
2D1.1
cmt.
n.11(A)
(incorporating
this
Accordingly, we conclude that the district court
did not err, plainly or otherwise, in applying this enhancement.
4
In his pro se supplemental brief, Britt argues that the
district court erred in calculating his drug quantity because
there was no direct evidence that he had sold the pills that
were missing from the prescription bottles seized from his home.
We find that the district court did not err in inferring that
Britt sold the missing pills.
See United States v. Leventine,
277 F.3d 454, 468 (4th Cir. 2002) (affirming enhancement based
on circumstantial evidence).
Finally,
counsel
questions
whether
the
district
court
erroneously denied Britts request for a downward variance or
departure,
and
Britt
argues
that
appellate
counsel
ineffective for filing an Anders brief on this issue.
was
We lack
authority to review the district courts denial of a departure,
and find that Britt has not overcome the presumption that the
district
impose
courts
decision
within-Guidelines
to
deny
his
sentence
variance
was
request
reasonable.
and
United
States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied,
135 S. Ct. 421 (2014).
Accordingly, we conclude that there is no procedural or
substantive
error
imprisonment.
in
Britts
sentence
of
100
months
See Gall v. United States, 552 U.S. 38, 51 (2007)
(discussing review of sentences).
To the extent Britt argues
that appellate counsel was ineffective, we conclude that he has
not
made
the
requisite
showing
5
to
assert
an
ineffective
assistance claim on direct appeal and that this claim should be
raised, if at all, in a motion under 28 U.S.C. 2255 (2012).
United
States
v.
Benton,
523
F.3d
424,
435
(4th
Cir.
2008)
(Ineffective assistance claims are generally not cognizable on
direct
appeal
record
that
. . .
defense
representation.
In
unless
it
conclusively
counsel
did
not
appears
provide
from
the
effective
(internal quotation marks omitted)).
accordance
with
Anders,
we
have
reviewed
the
entire
record for any further meritorious grounds for appeal and have
found none.
Accordingly, we deny Britts motion for new counsel
and affirm the district courts judgment.
This court requires
that counsel inform Britt, in writing, of his right to petition
the Supreme Court of the United States for further review.
If
Britt requests that a petition be filed, but counsel believes
that such a petition would be frivolous, counsel may move in
this court for leave to withdraw from representation.
Counsels
motion must state that a copy thereof was served on Britt.
dispense
with
contentions
are
oral
argument
adequately
because
presented
in
the
the
facts
We
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
