United States v. Gattis

• Decision Date: 04 December 2017
• Docket Number: No. 16-4663,16-4663
• Citation: 877 F.3d 150
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Geoffrey Thomas GATTIS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

877 F.3d 150

UNITED STATES of America, Plaintiff–Appellee,

v.Geoffrey Thomas GATTIS, Defendant–Appellant.

No. 16-4663

United States Court of Appeals, Fourth Circuit.

Argued: October 26, 2017

Decided: December 4, 2017

ARGUED: Jennifer Claire Leisten, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, Seth M. Wood, Assistant United States Attorney, Office of

the United States Attorney, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, KING, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King and Judge Floyd joined.

NIEMEYER, Circuit Judge:

After Geoffrey Gattis pleaded guilty to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), the district court sentenced him to 70 months' imprisonment, at the low end of the Sentencing Guidelines range that it had calculated. In calculating that range, the court applied an enhanced base offense level under U.S.S.G. § 2K2.1(a)(4)(A), based on its conclusion that Gattis had a previous felony conviction for a crime of violence. And it increased that level based, among other things, on its findings that the offense involved 3 to 7 firearms and that Gattis had possessed a firearm in connection with another felony offense. On appeal, Gattis challenges these Guidelines decisions. He argues that his previous North Carolina felony conviction for common law robbery does not qualify as a conviction for a "crime of violence" under the definition in U.S.S.G. § 4B1.2(a) and that the government's evidence was insufficient to support the other two enhancements.

We affirm, concluding that Gattis's North Carolina common law robbery conviction categorically qualified as a felony conviction for a crime of violence, as provided in § 2K2.1(a)(4)(A) and defined in § 4B1.2(a). We also conclude that the evidence was sufficient to support the district court's additional enhancements.

I

On January 7, 2016, a resident of Oxford, North Carolina, called the Granville County Sheriff's Department to report that his home had been burglarized. Among the items stolen were six firearms—including a 9-millimeter Glock semiautomatic handgun, a .22 caliber Marlin semiautomatic long rifle, and two assault rifles—as well as several fully loaded large capacity magazines and a Kindle Fire tablet in a purple case.

A few days later, on January 11, 2016, a woman named Ms. Watson, who resided just outside Henderson, in Vance County North Carolina, filed a police report stating that on January 8 she had heard automatic weapon fire and looked out her door to see two men whom she knew—Geoffrey Gattis and Orrie Williams—shooting at a sign at the end of her dead-end street. According to a federal law enforcement agent, Watson stated that she was "very familiar" with Gattis because he stayed with her "on regular occasions" and that she was "concerned" both about the shooting as well as the fact that Gattis and Williams "were using the street as a dump site for household items and furniture."

The next day, on January 12, 2016, officers with the Henderson Police Department were conducting a driver's license checkpoint when they observed a blue sedan turn around in an apparent effort to evade the checkpoint. They stopped the vehicle—which was driven by Williams and in which Gattis was a passenger—and after an officer asked both men to step out of the car, Gattis attempted to flee on foot before struggling with the officers who apprehended him. After he was apprehended, the officers recovered a loaded 9-millimeter Glock handgun from his person—the same Glock handgun that had been stolen from the Oxford residence on January 7, five days earlier.

On January 13, 2016, the day following Gattis's arrest, police officers searched Watson's residence and property with her consent, as well as the adjoining area where she had reported seeing Gattis and Williams firing weapons. During the search, the officers recovered a .22 caliber Marlin rifle, 15 fully loaded large capacity magazines, and a Kindle Fire tablet in a purple case—property matching the description of items that, among others, had been taken during the January 7 burglary in Oxford. Officers also recovered two other firearms, several other tablets and phones, a laptop, a pair of sneakers, a valuable coin collection, a sterling silver tennis bracelet, a diamond sapphire ring, and assorted papers and documents. Several of these items had been reported as stolen during the burglary of another Oxford home on November 13, 2015, and other items had been reported as stolen in Vance, Warren, and Franklin Counties.

Gattis was indicted for the possession, as a felon, of the 9-millimeter Glock handgun recovered from him during the January 12, 2016 traffic stop, in violation of 18 U.S.C. §§ 922(g)(1) and 924, and he pleaded guilty to the charge without a plea agreement.

In preparation for sentencing, a probation officer prepared a presentence report, which noted that Gattis had a prior North Carolina felony conviction for common law robbery; that a number of state felony charges were pending against Gattis in Vance, Warren, and Franklin Counties stemming from four burglaries that had occurred between November 2015 and January 2016; and that felony charges filed in Granville County stemming from two burglaries had been dismissed. (Defense counsel later acknowledged that those charges, which stemmed from the November 13, 2015 and January 7, 2016 burglaries in Oxford, had been "dismissed in favor of federal prosecution").

Calculating Gattis's advisory sentencing range, the presentence report began with an enhanced base offense level of 22 under U.S.S.G. § 2K2.1(a)(3), which applies, inter alia , "if (A) the offense involved a ... semiautomatic firearm that is capable of accepting a large capacity magazine ... and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." It then recommended that Gattis receive (1) a 2-level increase under § 2K2.1(b)(1)(A) on the ground that the offense involved 3 to 7 firearms; (2) a 2-level increase under § 2K2.1(b)(4)(A) on the ground that the offense involved a stolen firearm; (3) a 4-level increase under § 2K2.1(b)(6)(B) on the ground that Gattis had used or possessed a firearm or ammunition in connection with another felony offense; and (4) a 3-level reduction under § 3E1.1 for acceptance of responsibility, for a total offense level of 27. This offense level, combined with Gattis's Criminal History Category III, yielded a recommended sentencing range of 87 to 108 months' imprisonment.

Gattis objected to several aspects of the presentence report. With respect to the report's application of an enhanced base offense level under § 2K2.1(a)(3), he maintained that his offense did not involve a semiautomatic firearm capable of accepting a large capacity magazine and that his prior North Carolina common law robbery conviction was not a conviction for a "crime of violence." And with respect to the additional enhancements, he challenged the report's conclusion that he was accountable for 3 to 7 firearms and that he had possessed a firearm or ammunition in connection with another felony offense.

At the sentencing hearing, the government stated that it was not prepared to offer evidence to show that Gattis's offense had involved a semiautomatic firearm capable of accepting a large capacity magazine, noting that while several large capacity magazines had been recovered, no corresponding weapons had been found with them. The district court accordingly sustained Gattis's objection on that issue but rejected Gattis's argument that his prior North Carolina common law robbery conviction did not qualify as a conviction for a crime of violence under the Guidelines. Thus, the court began with an enhanced base offense level of 20 under § 2K2.1(a)(4), instead of the enhanced base offense level of 22 under § 2K2.1(a)(3) that was recommended by the presentence report. The court also overruled Gattis's objections to the two other enhancements, finding it "clear" that Gattis's offense had involved at least 3 firearms and also finding, "based on the preponderance of the evidence, including the specific items taken from the residence, that it's more likely than not that the defendant committed the offense in connection with another felony offense." Based on these rulings, Gattis's total offense level became 25, which, when combined with Criminal History Category III, resulted in an advisory sentencing range of 70 to 87 months' imprisonment. After considering the sentencing factors specified in 18 U.S.C. § 3553(a), the court imposed a term of imprisonment of 70 months.

From the district court's judgment dated October 6, 2016, Gattis filed this appeal, challenging only the district court's calculation of his advisory sentencing range.

On August 10, 2017, while this appeal was pending, the Chief of the Federal Bureau of Prisons' Designation and Sentence Computation Center sent a letter to the district court indicating that on February 16, 2017, Gattis had been sentenced in a North Carolina court to an 8-to-19-month term of imprisonment for possessing stolen property and inquiring whether his federal sentence should run concurrently or consecutively with the state sentence. In response, the district court filed an amended judgment on September 5, 2017, ordering that Gattis's federal sentence run concurrently with his "imprisonment pursuant to the judgment in Franklin County."

II

The primary issue presented is whether the district court erred by...