United States v. Michael Frink

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 25, 2022
• Docket: 18-4738
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4738

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL MONTRAY FRINK, a/k/a Big Mookie,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:18-cr-00033-BO-1)

Submitted: January 31, 2022 Decided: March 25, 2022

Before HARRIS, RICHARDSON, and RUSHING, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

ON BRIEF: Laura E. Beaver, THE BEAVER LAW FIRM, Raleigh, North Carolina, for Appellant. Robert H. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Michael Montray Frink pled guilty, without a written plea agreement, to possession

with intent to distribute a quantity of heroin, in violation of 21 U.S.C. § 841(a)(1)

(Count 1); possession of firearms by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1), 924(a)(2) (Count 2); and possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). The district court

sentenced Frink to a total term of 117 months’ imprisonment and 5 years’ supervised

release. Counsel initially filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), asserting that there were no meritorious grounds for appeal but questioning whether

Frink’s guilty plea to Count 3 was supported by a sufficient factual basis. Although advised

of his right to file a supplemental pro se brief, Frink did not do so. The Government

declined to file a response brief. After conducting our Anders review, we ordered

supplemental briefing to address the nonfrivolous issue of whether the district court

adequately explained the chosen sentence. 1

1 Shortly after we entered the supplemental briefing order, the Supreme Court issued Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) (holding that, “in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm”). In light of the possibility that Rehaif would impact the validity of Frink’s guilty plea to Count 2, this case was placed in abeyance pending a decision in United States v. Sitton, No. 18-4831, which we anticipated would provide further guidance on the impact of Rehaif. We recently decided Sitton without addressing Rehaif. United States v. Sitton, 21 F.4th 873 (4th Cir. 2022). Nevertheless, in light of Greer v. United States, 141 S. Ct. 2090, 2100 (2021), and United States v. Moody, 2 F.4th 180, 197-98 (4th Cir. 2021), our review of the record reveals no nonfrivolous Rehaif challenge to Frink’s conviction. 2 We turn first to appellate counsel’s initial claim that Frink’s guilty plea to Count 3

might not have been supported by a sufficient factual basis. Because Frink did not seek to

withdraw his guilty plea in the district court, we review this claim for plain error. United

States v. McCoy, 895 F.3d 358, 364 (4th Cir. 2018). To sustain a conviction under § 924(c),

the evidence must indicate “that the 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). “[T]here are many factors that might lead a fact finder to conclude that a connection

existed between a defendant’s possession of a firearm and his drug trafficking activity,”

including:

the type of drug activity that is being conducted, accessibility of the firearm, the type of weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.

Id. (internal quotation marks omitted).

Here, as Frink acknowledged in his Anders brief, the firearms were stolen, easily

accessible, and illegally possessed. Moreover, agents found the firearms in Frink’s

residence in close proximity to drugs, drug paraphernalia, and large amounts of cash shortly

after Frink sold heroin out of the same residence. Accordingly, the district court did not

plainly err in concluding that Frink possessed the firearms in furtherance of a drug

trafficking crime. See, e.g., United States v. Snow, 462 F.3d 55, 63 (2d Cir. 2006); United

States v. Luciano, 329 F.3d 1, 6 (1st Cir. 2003).

We turn next to the validity of Frink’s sentence. As noted above, our supplemental

briefing order, entered on June 19, 2019, directed the parties to address “whether the district

3 court adequately explained the chosen sentence.” The parties complied and filed

supplemental briefs limited to that issue. After the supplemental briefs were filed,

however, this court decided United States v. Rogers, 961 F.3d 291, 296 (4th Cir. 2020),

which established that “all non-mandatory conditions of supervised release must be

announced at a defendant’s sentencing hearing.” A review of the record reveals that, at the

sentencing hearing in this case, the only condition of release announced by the district court

was that Frink could not violate any federal, state, or local laws during his period of

supervision. However, in Frink’s written judgment, the district court imposed 13 standard

conditions and 4 special conditions of supervision, none of which was announced or even

alluded to at sentencing. This inconsistency runs afoul of Rogers. 2

The remedy for a Rogers error “is to vacate the sentence and remand for the district

court to resentence” the defendant. United States v. Singletary, 984 F.3d 341, 346 (4th Cir.

2021); see also id. at 346 n.4 (rejecting contention that vacatur should be limited to

supervised release portion of defendant’s sentence). Accordingly, we need not address the

procedural sentencing issue discussed in the parties’ supplemental briefs. See id. at 344.

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

no other meritorious grounds for appeal. We therefore affirm Frink’s convictions, vacate

his sentence, and remand for resentencing.

2 We recognize that the district court did not have the benefit of our decision in Rogers at the time of Frink’s sentencing.

4 This court requires that counsel inform Frink, in writing, of the right to petition the

Supreme Court of the United States for further review. If Frink 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 Frink.

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 IN PART, VACATED IN PART, AND REMANDED