Submitted: September 24, 2018
from United States District Court for the Western District of
Missouri - Kansas City
COLLOTON, GRUENDER, and GRASZ, Circuit Judges
L. Murray appeals after the district court sentenced him to
51 months' imprisonment and 3 years' supervised
release following his conviction for being a felon in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). We affirm.
in the morning of June 1, 2013, Murray purchased cigarettes
at a store in Kansas City, Missouri. He exited the store and
joined Ashley Robinson, who was arguing with the occupants of
a van. The van's driver opened fire at Robinson and
Murray, and Murray pulled a handgun from his pocket and
returned fire. During the shootout, a bullet hit Murray, who
fell to the ground. Robinson picked up Murray's weapon
and returned fire at the fleeing van. Meanwhile, the store
clerk came to administer aid to Murray. She told police that
she heard Murray tell Robinson to put his gun, drugs, and
money in her vehicle. Officers later searched Robinson's
car and found the handgun, $95 in U.S. currency, and a bottle
containing 15.14 grams of PCP.
pleaded guilty without a plea agreement. At Murray's
sentencing hearing, Kansas City police officer Slade Whetro
described smelling the odor of PCP when he approached the
wounded Murray upon arriving at the scene. He also recounted
how the store clerk heard Murray tell Robinson to place his
gun, drugs, and money in her car. He further explained that a
bottle containing 15.14 grams of PCP is not consistent with
personal use but instead constitutes a distributable amount.
presentence investigation report recommended a five-level
enhancement under United States Sentencing Guidelines
("U.S.S.G.") § 2A2.2(b)(2)(A) for discharging
a firearm while committing the crime of assault. Murray's
counsel objected to this enhancement, claiming Murray was
acting in self-defense, and the sentencing court declined to
apply it. Instead, the court applied a four-level enhancement
under § 2K2.1(b)(6)(B) for using and possessing the
firearm in connection with possession of a distributable
amount of PCP. Section 2K2.1(b)(6)(B) mandates a four-level
enhancement if the defendant "used or possessed any
firearm or ammunition in connection with another felony
offense." The application notes explain that this
provision is warranted "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." U.S.S.G. § 2K2.1(b)(6) cmt. n.
14(B). After the enhancement and a three-level reduction for
acceptance of responsibility, Murray's total offense
level was 15 and his criminal history category was VI. His
51-month sentence fell at the high end of his advisory
guidelines range of 41 to 51 months.
appeal, Murray challenges the district court's imposition
of the four-level enhancement under § 2K2.1(b)(6)(B) and
argues that the district court committed procedural error
because the evidence did not establish that he possessed the
firearm in connection with another felony offense. In
particular, he maintains that the Government failed to prove
by a preponderance of the evidence that he possessed the
drugs in the first place, or at least that he possessed them
while in possession of the firearm. Murray suggests there are
inconsistencies in the hearsay accounts of the store clerk
and Robinson which were recounted by Officer Whetro during
his testimony at sentencing.
review a sentencing court's factual findings for clear
error and its application of the sentencing guidelines de
novo. United States v. Johnson, 846 F.3d 1249,
1250 (8th Cir. 2017). The district court did not clearly err
in finding that Murray possessed the handgun in connection
with the drug trafficking felony of possession of a
distributable amount of PCP. Based on the store clerk's
statement, Officer Whetro testified that Robinson took over
fifteen grams of PCP from Murray's pocket to her car.
Laboratory testing confirmed that the substance was PCP, and
Whetro explained that this quantity is not consistent with
personal use. Whetro's own observation that Murray
smelled like PCP supported the conclusion that the PCP was
Murray's. When, as here, the felony involves drug
trafficking rather than simple possession, we have held that
the guidelines mandate the enhancement "if guns and
drugs are in the same location." Johnson, 846
F.3d at 1250 (citing U.S.S.G. § 2K2.1(b)(6) cmt. n.
14(B)). Because the evidence showed that Murray possessed the
PCP until Robinson removed it after the shooting, the
district court did not procedurally err in imposing the
Murray also challenges the substantive reasonableness of his
sentence. We review the substantive reasonableness of a
sentence under the deferential abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). We
may consider a sentence within the guidelines range, like
Murray's, to be presumptively reasonable. See
id. Here, the district court carefully considered the
§ 3553(a) factors and sentenced Murray at the high end
of his guidelines range. We see no basis for finding the
sentence unreasonable and thus conclude that the district
court did not abuse its discretion.
foregoing reasons, we affirm.
The Honorable Brian C. Wimes, United
States District Judge for the Western District of