                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-2009

USA v. Cedric D. Shackelfor
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4770




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       No. 08-4770


                            UNITED STATES OF AMERICA

                                             v.

                              CEDRIC D. SHACKELFORD,

                                                                Appellant


                     On Appeal from the United States District Court
                             for the District of Delaware
                           (D.C. Crim. No. 08-00035-001)
                       Honorable Sue L. Robinson, District Judge


                       Submitted under Third Circuit LAR 34.1(a)
                                     June 2, 2009

         BEFORE: MCKEE, HARDIMAN, and GREENBERG, Circuit Judges

                                   (Filed: June 5, 2009)


                               OPINION OF THE COURT


                              GREENBERG, Circuit Judge.

       This matter comes on before this Court on Cedric D. Shackelford’s appeal from a

judgment of conviction and sentence in a criminal case entered on December 2, 2008.

Shackelford has limited his appeal to the single contention that the District Court erred as
a matter of law when it relieved the Government of its burden of establishing the basis for

a 4-level guidelines enhancement that the Court used in calculating Schackelford’s

adjusted offense level. The District Court had jurisdiction under 18 U.S.C. § 3231, and

we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       The circumstances of the case are not complex. During the execution of a search

warrant at certain residential premises in Wilmington, Delaware, in which Shackelford

was a tenant, the officers found, among other things, a large quantity of marijuana,

miscellaneous items of drug paraphernalia, and a loaded Marlin Model 60 .22 caliber

rifle. After his later arrest Shackelford admitted that he had been involved in a cocaine

conspiracy with other residents of the premises and that the rifle was his. He also

revealed that the officers when executing the warrant had overlooked nine ounces of

cocaine concealed within the premises.

       A grand jury subsequently indicted Shackelford in a two-count indictment, one

count for possession of cocaine with intent to distribute in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(C) and one count for unlawful possession by a convicted felon of the

.22 caliber rifle in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Pursuant to a plea

agreement Shackelford pleaded guilty to the weapons charge, and the cocaine charge was

dismissed. Shackelford’s guidelines range was 110 to 137 months calculated on a total

offense level of 25 and a criminal history category of VI. However, the statutory

maximum sentence for the offense was 120 months. The Court imposed a 110-month



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custodial sentence to be followed by a 3-year term of supervised release.

       The appeal centers on the circumstance that, pursuant to U.S.S.G. § 2K2.1(b)(6),

the Court enhanced the base offense level of 24 by 4 levels because Shackelford

possessed the rifle “in connection with” another felony case. Shackelford does not deny

that he was engaging in another felony offense when he possessed the weapon and that he

has the requisite history of felony convictions so that his possession of the rifle was

unlawful. He contends, however, that he possessed the rifle for hunting rabbits and

squirrels and, while his possession of the rifle was unlawful, he did not possess it in

connection with another offense, and thus the Court erred in imposing the enhancement.

In this regard, he contends that the District Court placed the burden on him to disprove

that he possessed the weapon in connection with another offense contrary to our

precedent in United States v. Dorsey, 174 F.3d 331, 332 (3d Cir. 1999), in which we said

that “[t]he burden is on the government to prove guideline enhancements by a

preponderance of the evidence.”

       We reject Shackelford’s contention. We acknowledge that the District Court used

certain language that might suggest that it placed the burden on Shackelford to prove that

he did not possess the rifle in connection with another offense. But that language merely

reflected the Court’s commendable willingness to listen to Shackelford’s argument that

the obvious was not true, the obvious being that when a felon committing a drug offense

possesses a loaded firearm at the place of the offense the possession is in connection with



                                              3
the offense. It must be remembered that Shackelford was engaged in a drug offense, a

type of offense that frequently leads to violence. He was not engaged in a nonviolent

crime such a mail fraud. Clearly, the Court found by its review of the evidence that

section 2K2.1(b)(6) had been satisfied, and we have no basis to reject that finding as we

see no factual error in it. See United States v. Blackmon, 557 F.3d 113, 118 (3d Cir.

2009). We think it is manifest that even if Shackelford used the weapon in innocent

undertakings, he would not have kept it loaded in his apartment as he could not expect to

see rabbits and squirrels in such a venue.

       The judgment of conviction and sentence entered December 2, 2008, will be

affirmed.




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