117 F.3d 641 (2nd Cir. 1997), 1591, United States v. Spurgeon

Docket Nº:1591, Docket 96-1448.
Citation:117 F.3d 641
Party Name:UNITED STATES of America, Appellee, v. Jay Tee SPURGEON, also known as Tee Tee, Defendant-Appellant.
Case Date:May 30, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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117 F.3d 641 (2nd Cir. 1997)

UNITED STATES of America, Appellee,

v.

Jay Tee SPURGEON, also known as Tee Tee, Defendant-Appellant.

No. 1591, Docket 96-1448.

United States Court of Appeals, Second Circuit

May 30, 1997

Argued May 19, 1997.

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Susan Corkery, Assistant United States Attorney, Eastern District of New York, Brooklyn, NY (Zachary W. Carter, United States Attorney, Samuel W. Buell, Assistant United States Attorney, Eastern District of New York, of counsel), for Appellee.

James R. Froccaro, Jr., Port Washington, NY, for Defendant-Appellant.

Before: WALKER, McLAUGHLIN, and PARKER, Circuit Judges.

PER CURIAM:

The defendant, Jay Tee Spurgeon, appeals from a judgment of conviction entered by the United States District Court for the Eastern District of New York (David G. Trager, Judge ) upon the defendant's plea of guilty to the charge of being a convicted felon in possession of a gun in violation of 18 U.S.C. § 922(g). Judge Trager sentenced Spurgeon to a 57-month term of imprisonment and a three-year term of supervised release. In

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this appeal defendant challenges the district court's calculation of his sentence. Specifically, he challenges the district court's four-point enhancement under U.S.S.G. § 2K2.1(b)(5) for "possess[ing] a firearm or ammunition in connection with another felony offense," in this case, a drug trafficking offense. We affirm.

Section 2K2.1(b)(5) of the Sentencing Guidelines requires district judges to enhance a sentence by four points "[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense...." Spurgeon makes two arguments on appeal: (1) that there was insufficient evidence on which the district court could base a finding that he had committed a felony while in possession of a firearm and, (2) failing that, that he did not "possess" the gun "in connection with" a felony.

As to the first challenge, the defendant's argument is unavailing. Under § 2K2.1(b)(5), "felony offense" means "any offense (state, federal, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought or a conviction obtained." U.S.S.G. § 2K2.1 Commentary, App. Note 7. Although the government bears the burden of establishing that a defendant committed a "felony offense," they need only do so, in the context of sentencing, by...

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