United States v. Archie Porter

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 20, 2023
• Docket: 21-7355
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-7355

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ARCHIE ORLANDO PORTER,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Max O. Cogburn, Jr., District Judge. (1:19-cr-00106-MOC-WCM-1)

Submitted: March 16, 2023 Decided: March 20, 2023

Before WILKINSON, AGEE, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Samuel Bayness Winthrop, WINTHROP & GAINES MESSICK, PLLC, Statesville, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

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PER CURIAM:

Archie Orlando Porter pleaded guilty, pursuant to a written plea agreement, to

possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A). In exchange for Porter’s guilty plea, the Government agreed to dismiss six

other charges, including the charge of distributing, dispensing, and possessing with intent

to distribute and dispense a quantity of methamphetamine, in violation 21 U.S.C.

§ 841(a)(1), which was the predicate drug trafficking crime for Porter’s § 924(c)(1)(A)

conviction. The district court sentenced Porter to five years’ imprisonment—the

mandatory minimum for his offense.

On appeal, Porter’s counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), stating that there are no meritorious grounds for appeal but questioning

whether Porter’s § 924(c)(1)(A) conviction is infirm because Porter did not plead guilty to

the predicate drug trafficking crime and whether the record establishes that Porter’s

possession of the firearm was in furtherance of a drug trafficking crime. We affirm.

Counsel first questions whether Porter’s § 924(c)(1)(A) conviction is infirm because

Porter did not plead guilty to the predicate drug trafficking crime. We have held that “[18

U.S.C.] § 924(c) convictions do not require a conviction on the predicate drug trafficking

offense,” but there must be “at least some showing by the government that a reasonable

jury could have convicted on the predicate drug offense.” United States v. Carter, 300

F.3d 415, 425 (4th Cir. 2002); see United States v. Crawley, 2 F.4th 257, 264 (4th Cir.

2021) (reaffirming that principle).

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The written factual basis for Porter’s guilty plea establishes that a reasonable jury

could have convicted him of distributing, dispensing, or possessing with the intent to

distribute or dispense a quantity of methamphetamine. Specifically, the factual basis

reflects that police officers encountered Porter as a passenger in a vehicle and arrested him

based on an outstanding warrant. Upon searching the vehicle, the officers found a bag

containing a handgun in the area where Porter had been sitting. The officers also found an

empty magazine, empty plastic baggies, and about $400 in cash in that area. A search of

Porter’s person at the jail produced 4.7 grams of methamphetamine, and a review of text

messages on Porter’s cellphone revealed that he sold methamphetamine. Porter also

admitted to the officers that he sold methamphetamine. And Porter later acknowledged

that he intended to distribute the methamphetamine found on his person. Based on those

facts, a reasonable jury could have convicted Porter of distributing, dispensing, or

possessing with intent to distribute or dispense a quantity of methamphetamine. We thus

discern no infirmity in Porter’s § 924(c)(1)(A) conviction based on the fact that he did not

also plead guilty to the predicate drug trafficking crime.

Counsel next questions whether the record establishes that Porter’s possession of

the handgun was in furtherance of a drug trafficking crime. We construe counsel’s

argument as a challenge to the sufficiency of the factual basis supporting Porter’s guilty

plea. “Before entering judgment on a guilty plea, the court must determine that there is a

factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). The factual basis requirement

“ensures that the court make clear exactly what a defendant admits to, and whether those

admissions are factually sufficient to constitute the alleged crime.” United States v.

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DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). We have recognized that “[t]he district court

possesses wide discretion in finding a factual basis, and it need only be subjectively

satisfied that there is a sufficient factual basis for a conclusion that the defendant committed

all of the elements of the offense.” United States v. Stitz, 877 F.3d 533, 536 (4th Cir. 2017).

In making its factual basis finding, the district court may rely on “anything that appears on

the record.” United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir. 2007).

To prove a § 924(c)(1)(A) offense, the Government must show that the defendant’s

possession of a firearm “furthered, advanced, or helped forward a drug trafficking crime.”

United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). In assessing whether the

Government has made that showing, we consider a number of nonexclusive factors,

including “the type of drug offense, the type of firearm, its proximity to drugs and drug

profits, its accessibility, whether the firearm is illegally possessed, whether the firearm is

stolen, whether the firearm is loaded, and the general circumstances surrounding the

possession.” United States v. Moody, 2 F.4th 180, 192 (4th Cir. 2021).

We are satisfied that the written factual basis establishes that Porter’s possession of

the handgun was in furtherance of a drug trafficking crime. As mentioned, officers

discovered the handgun—a common tool of the drug trafficking trade—in close proximity

to empty plastic baggies and a large amount of cash. See United States v. Manigan, 592

F.3d 621, 629 (4th Cir. 2010) (“A handgun . . . has been deemed a tool of the drug trade

because it is easy to conceal yet deadly.” (internal quotation marks omitted)). The handgun

was also near where Porter had been sitting in the vehicle, so it was close to the

methamphetamine on Porter’s person, and it was accessible to Porter. Moreover, Porter

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could not legally possess the handgun based on a prior felony conviction. And Porter

admitted that he possessed the handgun to protect his drug “enterprise.” We therefore

conclude that the district court properly found a factual basis supported Porter’s guilty plea.

See United States v. Moore, 769 F.3d 264, 270 (4th Cir. 2014) (holding that requisite

connection between handgun and drug trafficking crime existed where handgun was found

in defendant’s apartment along with drugs, items used for packaging drugs, and large

amount of cash and defendant could not legally possess firearm).

In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal. We thus affirm the district court’s amended

judgment. This court requires that counsel inform Porter, in writing, of the right to petition

the Supreme Court of the United States for further review. If Porter requests that a petition

be filed, but counsel believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Counsel’s motion must state

that a copy thereof was served on Porter.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED