United States v. Jerome Mobley

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 4, 2023
• Docket: 20-4555
• Status: Unpublished

Opinion

USCA4 Appeal: 20-4555 Doc: 43 Filed: 04/04/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4555

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JEROME LEPRICE MOBLEY,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:20-cr-00023-MOC-DCK-1)

Submitted: September 6, 2022 Decided: April 4, 2023

Before WYNN and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion. Judge Rushing dissents in part.

ON BRIEF: Anthony Martinez, Federal Public Defender, Joshua B. Carpenter, Appellate Chief, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Dena J. King, United States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

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PER CURIAM:

Jerome Leprice Mobley appeals the 46-month sentence imposed following his

guilty plea to possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). On appeal, he disputes the district court’s application of a Sentencing

Guidelines enhancement for possession of a firearm in connection with another felony

offense. U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2018). For the reasons

that follow, we vacate and remand.

“[A] firearm is possessed ‘in connection with’ another felony offense for purposes

of the four-level enhancement [in USSG § 2K2.1(b)(6)(B)] when that firearm ‘facilitated

or had the potential of facilitating’ another felony.” United States v. Bolden, 964 F.3d 283,

287 (4th Cir. 2020) (brackets omitted) (quoting USSG § 2K2.1 cmt. n.14(A)). Notably, a

presumption in favor of facilitation applies when (1) the other felony offense is a drug

trafficking crime, and (2) the firearm and the drugs were found in close proximity to one

another. Id. (citing USSG § 2K2.1 cmt. n.14(B)). However, no such presumption applies

when the other felony offense is simple drug possession; rather, the district court must find

that the firearm facilitated or had the potential to facilitate the defendant’s possession of

illicit drugs. Id.; see USSG § 2K2.1 cmt. n.14(A).

From this record, we cannot discern whether the district court decided that the other

felony offense was a drug possession crime or a drug trafficking crime. And the lack of

clarity on this issue is critical because the court did not make an explicit finding as to

facilitation. So, if the predicate was a drug trafficking offense, then the absence of a

facilitation finding is immaterial, since the facilitation presumption would apply. But if

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the predicate was a drug possession offense, then the court likely erred in applying the

enhancement without expressly finding that the firearm facilitated Mobley’s simple

possession of cocaine.

Accordingly, we vacate Mobley’s sentence and remand for resentencing. 1 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.

VACATED AND REMANDED 2

1 The parties also request that we allow the district court to reconsider the imposition of a supervised release condition that the court had imposed pursuant to a standing order that has since been amended. The court will now have an opportunity to address this issue on remand. 2 Judge Rushing would affirm the sentence with the exception of supervised release condition #16, which the parties have agreed to vacate and remand.