United States v. Robert Henderson

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 14, 2022
• Docket: 21-4598
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4598

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERT LEE HENDERSON, a/k/a 40,

Defendant - Appellant.

Appeal from the United States District Court for the District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:20-cr-00107-BO-1)

Submitted: May 26, 2022 Decided: June 14, 2022

Before NIEMEYER and DIAZ, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Richard Croutharmel, Raleigh, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

Robert Lee Henderson was charged in a five-count indictment with distribution of,

and possession with intent to distribute, crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C) (Counts 1 and 2), possession with intent to distribute cocaine (Count

3), possession of a firearm in furtherance of a drug trafficking offense, in violation of 18

U.S.C. § 924(c) (Count 4), and possessing a firearm as a convicted felon, in violation of 18

U.S.C. § 922(g) (Count 5). The jury convicted Henderson of counts 1, 2, 3, and 5, but

acquitted him on count 4. Based on a total offense level of 30 and a criminal history

category of IV, Henderson’s advisory Sentencing Guidelines range was 135 to 168 months.

The court imposed a 144-month sentence, followed by 3 years of supervised release.

On appeal, Henderson’s attorney has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), conceding that there are no meritorious issues for appeal but

questioning whether the district court erred at sentencing in applying the two-level

enhancement for possession of a firearm in connection with a drug offense, U.S.

Sentencing Guidelines Manual § 2D1.1(b)(1) (2018), and the two-level enhancement for

maintaining a premises for the purposes of distributing a controlled substance, USSG

§ 2D1.1(b)(12). Counsel also questions whether Henderson received ineffective assistance

of counsel at trial. Although advised of his right to file a supplemental pro se brief,

Henderson has not done so.

When reviewing whether a district court erred in calculating the defendant’s

Sentencing Guidelines range, we review factual findings for clear error and legal

conclusions de novo. United States v. Shephard, 892 F.3d 666, 670 (4th Cir. 2018).

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“[C]lear error occurs when a district court’s factual findings are against the clear weight of

the evidence considered as a whole.” United States v. Martinez-Melgar, 591 F.3d 733, 738

(4th Cir. 2010) (internal quotation marks omitted).

The Guidelines authorize a two-level increase in the offense level “[i]f a dangerous

weapon (including a firearm) was possessed.” USSG § 2D1.1(b)(1). “The enhancement

should be applied if the weapon was present, unless it is clearly improbable that the weapon

was connected with the offense.” USSG § 2D1.1 cmt. n.11(A). “The government bears

the initial burden of proving, by a preponderance of the evidence, that the weapon was

possessed in connection with the relevant illegal drug activity.” United States v.

Mondragon, 860 F.3d 227, 231 (4th Cir. 2017). Establishing the requisite nexus requires

the Government to “prove only that the weapon was present, which it may do by

establishing a temporal and spatial relation linking the weapon, the drug trafficking

activity, and the defendant.” Id. (internal quotation marks omitted). “If the government

carries its burden, the sentencing court presumes that the weapon was possessed in

connection with the relevant drug activity and applies the enhancement, unless the

defendant rebuts the presumption by showing that such a connection was clearly

improbable.” Id. (internal quotation marks omitted).

Here, loaded firearms and ammunition were found in close proximity to drugs and

distribution paraphernalia. We find that the Government met its burden of proving that the

weapons were possessed in connection with Henderson’s illegal drug activity, and

Henderson failed to rebut that presumption. Therefore, the district court did not clearly err

in applying the firearm enhancement.

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Section 2D1.1(b)(12) of the Guidelines directs a district court to increase a

defendant’s base offense level two levels “[i]f the defendant maintained a premises for the

purpose of manufacturing or distributing a controlled substance.” According to the

Guidelines’ commentary, “[a]mong the factors the court should consider in determining

whether the defendant ‘maintained’ the premises are (A) whether the defendant held a

possessory interest in (e.g., owned or rented) the premises and (B) the extent to which the

defendant controlled access to, or activities at, the premises.” USSG § 2D1.1(b)(12) cmt.

n.17. A premises may be “a building, room, or enclosure.” Id. Manufacturing or

distributing a controlled substance “need not be the sole purpose for which the premises

was maintained, but must be one of the defendant’s primary or principal uses for the

premises, rather than one of the defendant’s incidental or collateral uses for the premises.”

Id. This Court has noted that “application of the premises enhancement is a fact-specific

inquiry that considers the totality of the circumstances.” United States v. Carbajal, 717

Fed. App’x 234, 237 (4th Cir. 2018) (No. 16-4358) (argued but unpublished). We find no

clear error in the district court’s conclusion that Henderson utilized his residence in

Jacksonville, North Carolina, for the purpose of manufacturing or distributing controlled

substances.

Finally, counsel questions whether Henderson was denied effective assistance of

counsel because his attorney admitted Henderson’s guilt on the drug charges during his

closing argument. We will decline to consider claims of ineffective assistance of counsel

raised on direct appeal “[u]nless an attorney’s ineffectiveness conclusively appears on the

face of the record.” United States v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016). Instead,

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such claims generally must be reserved for a 28 U.S.C. § 2255 motion to permit adequate

development of the record. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

We find that counsel’s ineffectiveness does not conclusively appear on the face of the

record.

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

found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.

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

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

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