Decided: October 29, 2014
The Fourth Circuit upheld the Appellant’s conviction for possession of a firearm in furtherance of a drug-trafficking crime. The Court also upheld the district court’s application of sentencing enhancements under the U.S. Sentencing Guidelines (U.S.S.G.).
In November 2011, the Appellant, Jesus Pineda, accompanied an individual to a drug deal in which the individual sold cocaine and a stolen assault rifle to a criminal informant (“CI”). After the transaction, Pineda arranged to sell additional drugs to the CI. The CI reported the information back to Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) agents. In January 2012, the CI purchased cocaine and a sawed-off shotgun from Pineda, all under police surveillance. Pineda had a handgun on him during the transaction, but he refused to sell the gun to the CI despite their previous agreement. Pineda explained that he could not sell the handgun because it was the only one he had at that time. In February 2012, Pineda again sold the CI cocaine and the handgun that he had refused to sell in the last transaction. Pineda was convicted of two counts of distributing cocaine—stemming from the January and February transactions, but not the November 2011 sale; possession of a firearm in furtherance of a drug-trafficking crime; and possession of a sawed-off shotgun. The probation officer included the November 2011 transaction in the presentence report, so that Pineda received enhancements for possessing a stolen firearm, committing crimes involving three firearms, and trafficking of firearms. The district court sentenced Pineda to 132 months in prison.
Pineda conceded that he possessed a firearm during the January 2012 drug deal, but claimed that there was insufficient evidence to show that he possessed a firearm in furtherance of a drug-trafficking crime. The Court has previously established that merely having a gun accessible during a drug sale can lead to a reasonable inference that the gun was in furtherance of the drug sale because the gun provides potential protection in case anything goes wrong. United States v. Jenkins, 566 F.3d 160, 164 (4th Cir. 2009). In this case, Pineda explicitly stated that he could not sell the CI the gun because he needed it for protection, which is substantial evidence to support the jury’s finding.
Pineda also claimed that the district court erred in designating the November 2011 transaction to be relevant conduct and therefore applicable to his sentencing enhancements. Conduct is relevant to sentencing when “two or more offenses . . . constitute part of a common scheme or plan” or if the offenses are part of the same course of conduct. U.S.S.G. § 1B1.3 cmt. n.9(A) and (B). Offenses are part of the same course of conduct “if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree or ongoing series of offenses.” Id. Because of both the similarity and regularity of the three transactions, the Court determined that the transactions were part of the same course of conduct, and therefore the November 2011 transaction was relevant conduct under the U.S.S.G. Thus, the Court affirmed the district court’s conviction and sentencing.
Amanda K. Reasoner