                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-10-2008

USA v. Knight
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3868




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                                              NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                    __________

                    No. 07-3868




         UNITED STATES OF AMERICA

                          v.

             JAMES LAMAR KNIGHT

                        James Knight,

                                        Appellant




   On Appeal from the United States District Court
            for the District of New Jersey
               (D. C. No. 06-cr-00917)
     District Judge: Honorable Noel L. Hillman




     Submitted under Third Circuit LAR 34.1(a)
                 on June 27, 2008


Before: SLOVITER, BARRY and ROTH, Circuit Judges

             (Filed: October 10, 2008)




                   OPINION
ROTH, Circuit Judge:

          James Knight appeals the judgment of sentence imposed on him by the United States

District Court for the District of New Jersey. For the reasons discussed below, we will

affirm.

I. Background and Procedural History

          Because the facts are well known to the parties, we will discuss them only briefly

here.

          Knight was charged in a superseding two-count indictment with possession of a

firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 2, and with possession with

intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).

Pursuant to a plea agreement executed on June 5, 2007, Knight pled guilty to the firearm

charge, and the drug trafficking charge was dismissed. In addition, the parties agreed 1) that

the November 1, 2006, U.S. Sentencing Guidelines would apply in this case and that the

applicable guideline is § 2K2.1; 2) that Knight’s base offense level is twenty-four and that

a three-point downward adjustment should apply, resulting in an offense level of twenty-one,

which, given Knight’s criminal history, would yield a sentence of seventy-seven to ninety-six

months; and 3) that the Government would not contest Knight’s argument that he did not

possess the gun in connection with another felony offense for purposes of an enhancement




                                               2
under U.S.S.G. § 2K2.1(b)(4). 1 However, in the Presentence Investigation Report, the

Probation Office recommended a four-level enhancement pursuant to § 2K2.1(b)(6), which

applies where “the defendant used or possessed any firearm or ammunition in connection

with another felony offense . . ..”

       The District Court held a sentencing hearing on July 27, 2006. Knight objected to the

proposed enhancement on the ground that the firearm had not been used or possessed “in

connection with” another felony offense, in particular because the evidence supported a

finding that Knight had possessed only a small amount of cocaine for personal use.

       The District Court granted the enhancement, noting that, under Application Note

14(B), where “a firearm is found in close proximity to drugs,” the firearm “has the potential

of facilitating another felony offense or another offense.” The District Court concluded that

Knight’s possession of the firearm facilitated even “mere possession” of the crack cocaine.

       The District Court also concluded that Knight’s conduct suggested that he was

engaged not in mere possession, but drug distribution; thus, possession of the weapon was

“in connection with” both possession and distribution. In support of its conclusion, the

District Court cited that Knight had been charged with drug trafficking by the State of New

Jersey, had been indicted with possession with intent to distribute in the superseding




   1
     The plea agreement’s reference to § 2K2.1(b)(4) appears to be a typographical error.
Section 2K2.1(b)(4) refers to (A) offenses subsequent to sustaining a felony conviction for
a crime of violence or controlled substance offense or (B) semiautomatic or 26 U.S.C. §
5845(a) firearms.

                                             3
indictment, had two prior convictions for drug distribution, was in a drug distribution area

at almost midnight at the time of his arrest, fled from the officers, and had almost $2,000 in

cash at the time of his arrest, separated into different bundles in different pockets.

       Application of the four-level enhancement resulted in a sentencing range of 110 to

120 months imprisonment. After hearing argument from counsel and a statement from

Knight, the District Court sentenced Knight to 115 months imprisonment. The District Court

concluded that such a sentence reflected the nature and circumstances of the offense and

Knight’s criminal history, would deter others from committing crimes, and was designed to

protect the public from further crimes.

       Knight appealed. He argues that the District Court’s use of Application Note 14(B)

constitutes an ex post facto violation, that there is insufficient evidence to support a finding

that he possessed the firearm in connection with drug distribution, and that the 115-month

sentence is unreasonable.

II. Analysis

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231.              We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       Knight’s first point of error is that the District Court’s reliance on Application Note

14(B) violated his constitutional rights because his offense was committed prior to

Application Note 14(B)’s November 1, 2006, effective date.             However, in the plea

agreement, Knight and the Government agreed that the November 1, 2006, Guidelines, and



                                               4
specifically § 2K2.1 (which the Application Note accompanies) would apply. The plea

agreement also states, “[I]f the sentencing court accepts a stipulation, both parties waive the

right to file an appeal . . . claiming that the sentencing court erred in doing so.”

The record suggests that this waiver was knowing and intelligent. United States v. Gwinnett,

483 F.3d 200, 204-05 (3d Cir. 2007). As such, this waiver is valid unless it would result in

“a miscarriage of justice.” Id. at 205 (internal quotation omitted).

       We cannot find a miscarriage of justice here. Even if Knight had not agreed to the

application of the November 2006 Guidelines, the finding that Knight possessed a firearm

“in close proximity to drugs” was only one basis for the District Court’s decision to apply the

four-level enhancement. The District Court also determined that Knight had carried the

firearm in connection with drug distribution; thus, the court could have imposed the four-

level enhancement without applying Note 14(B).2 See United States v. Loney, 219 F.3d 281,

288 (3d Cir. 2000) (“When a defendant has a loaded gun on his person while confronting a

victim or buyer in person during an assault, drug deal, or robbery, it is easy to see that the

gun has the potential for facilitating these types of crime.”) (emphasis added).

       Knight argues that, even if the District Court did not rely upon Application Note 14(B)

in applying the enhancement, there is insufficient evidence to support the conclusion that




   2
    For the same reason, even if we were to find that Knight had not waived his right to
appeal the use of Application Note 14(B), we would find no plain error in the District Court’s
application of the enhancement because no prejudice resulted. United States v. Olano, 507
U.S. 725, 734 (1996).

                                               5
Knight’s possession of the firearm facilitated another felony offense. Knight argues that

possession of only 1.7 grams of crack cocaine is not a felony because it is not punishable by

a term of more than one year and that there was no connection between his possession of the

firearm and drug activity other than mere proximity.

       Guideline enhancements must be proven by a preponderance of the evidence, and we

review the District Court’s factual findings at sentencing for clear error. Id. With respect

to Knight’s assertion that possession of 1.7 grams of crack cocaine is not a felony, that may

be true for first-time offenders. As the Government points out, however, Knight has prior

drug convictions; thus, the drug possession could have resulted in more than one year

imprisonment in his case. 21 U.S.C. § 844(a).

       With respect to the other felony, drug distribution, in connection with which the

District Court determined Knight had possessed the firearm, sufficient evidence supports the

finding that Knight had engaged in such activity in connection with possession of a firearm.

It is true, as the District Court acknowledged, that the record does not include all the

evidence that might be expected to establish a drug trafficking offense. However, when

Knight was arrested with the firearm, it was midnight, he was in a known drug area, he had

a large quantity of cash stowed among different pockets, and he told the probation officer

that he had been carrying the gun for protection. In addition, Knight had a criminal history

of drug distribution and was indicted for distribution along with possession of the firearm in

this case. Such evidence supports the reasonable conclusion that Knight used the firearm in



                                              6
connection with the felony offense of drug distribution.

       Knight’s challenge to the reasonableness of his sentence also fails. Review of a

sentence for reasonableness essentially calls upon us to “ask[] whether the trial court abused

its discretion.” Rita v. United States, 127 S.Ct. 2456, 2465 (2007). “The touchstone of

‘reasonableness’ is whether the record as a whole reflects rational and meaningful

consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475

F.3d 556, 571 (3d Cir. 2007) (en banc); see also United States v. Cooper, 437 F.3d 324, 329

(3d Cir. 2006). “That we may ourselves have imposed a sentence different from that of the

district court, based on our own de novo assessment of the evidence, is no basis to overturn

the judgment.” United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006).

       The record indicates that the District Court reasonably considered and applied the

relevant § 3553(a) factors in determining Knight’s sentence. The sentence was within the

Guidelines range. Moreover, while acknowledging that Knight had family members who

cared about him, the District Court explained that Knight’s offense was serious, in part

because carrying a firearm could pose a danger to the community at large, that Knight had

a considerable criminal history given his age and apparently was unwilling or unable to be

law-abiding, and that Knight had a pattern of evading, resisting, or not cooperating with law

enforcement. Accordingly, the District Court concluded that a 115-month sentence was

necessary to reflect the seriousness of the offense, to provide just punishment that would

adequately deter others similarly situated from committing crimes, to promote respect for the



                                              7
law, and to protect the public from further crimes. On the record before us, we cannot say

that the District Court abused its discretion in imposing the 115-month sentence.

III. Conclusion

      For the reasons set forth above, we will affirm the judgment of the District Court.




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