United States v. McDonald

• Decision Date: 21 March 2022
• Docket Number: No. 20-4262,20-4262
• Citation: 28 F.4th 553
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Justice MCDONALD, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

28 F.4th 553

UNITED STATES of America, Plaintiff – Appellee,

v.Justice MCDONALD, Defendant – Appellant.

No. 20-4262

United States Court of Appeals, Fourth Circuit.

Argued: December 9, 2021

Decided: March 21, 2022

ARGUED: Amos Granger Tyndall, AMOS TYNDALL PLLC, Carrboro, North Carolina, for Appellant. Julie Carol Niemeier, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Matthew G.T. Martin, United States Attorney, Kyle D. Pousson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Before AGEE and DIAZ, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Diaz and Senior Judge Floyd joined.

AGEE, Circuit Judge:

Justice McDonald challenges his 162-month sentence for possessing with the intent to distribute cocaine base and being a felon in possession of ammunition. On appeal, he asserts the district court committed procedural and substantive error in computing his total offense level and considering the sentencing factors under 18 U.S.C. § 3553(a). For the reasons set forth below, we affirm the judgment of the district court.

I.

A.

On January 28, 2019, a federal grand jury returned a superseding indictment against McDonald for possession with the intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count One); possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Two); felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Counts Three and Four); and felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Five). On McDonald's motion, the district court severed the counts, which originated from three different incidents in 2018, into three trials for evidentiary reasons. The underlying facts giving rise to these counts and their subsequent procedural histories are as follows:

Counts One through Three ("fleeing-on-foot incident")

On February 24, 2018, an officer with the Durham Police Department ("DPD") observed a vehicle with illegal window tint fail to stop at a stop sign in Durham, North Carolina. The officer followed the vehicle to the end of a dead-end street, at which point he activated his emergency lights. The driver of the vehicle, who was later identified as McDonald based on fingerprints obtained from the vehicle, fled the scene, but was soon apprehended.

Upon searching the vehicle, which had been stolen, officers recovered twenty-seven individually wrapped plastic bags containing cocaine base. Using a canine, officers searched the surrounding area and discovered a cell phone, a car key matching the vehicle, and a chambered 9mm Springfield Armory XD-9 firearm, which had a magazine capable of holding more than fifteen rounds of ammunition (sixteen to be exact), thus qualifying as a large capacity magazine under the United States Sentencing Guidelines ("U.S.S.G."). See U.S.S.G. § 2K2.1 cmt. n.2. The firearm and car key were recovered five to seven feet from where McDonald was apprehended, but in opposite directions from each other. Despite rainwater on nearby foliage, the firearm was dry, clean, and free from rust. McDonald denied possession of the firearm.

McDonald proceeded to trial on the counts relevant to this conduct, Counts One through Three. The jury convicted him of Count One (possession with intent to distribute cocaine base), but acquitted him of Counts Two (possession of a firearm in furtherance of drug trafficking) and Three (felon in possession of a firearm).

Count Four ("Taco Bell episode")

On October 14, 2018, officers with the Madison Police Department responded to a call about a suspicious vehicle in a Taco Bell parking lot in Madison, North Carolina and arrived on the scene to find the driver (who was later identified as McDonald's fiancée) and passenger (McDonald) asleep in the vehicle. Upon smelling a strong odor of marijuana when McDonald's fiancée lowered the front windows, officers searched the vehicle and discovered a chambered Glock 23 firearm in the glove compartment that had a large capacity magazine capable of holding twenty-two rounds. After waiving his Miranda¹ rights, McDonald claimed ownership of the firearm, which he accurately described to officers, and continued to claim ownership during the subsequent booking process. He also threatened the officers, asserting that if his fiancée had been absent, he would not have cooperated––"[he] would have come out blasting, shooting" at them. J.A. 927.

The Government later successfully moved to dismiss the count relevant to this conduct, Count Four (felon in possession of a firearm), stating "that an additional trial would [not] affect the guideline range or the statutory maximum in a way that would have any meaningful effect." J.A. 493.

Count Five ("gas station shooting")

On November 3, 2018, DPD officers responded to a report of gunshots at a BP gas station in Durham, North Carolina. Upon arriving at the scene, officers spoke with witnesses and reviewed video surveillance footage, which revealed that a male suspect, who was later identified as McDonald, entered the gas station briefly and then exited with a firearm in hand, at which point unknown individuals fired shots at him. McDonald then returned fire before getting into his vehicle and fleeing the scene. This exchange resulted in damage to nearby vehicles and the gas station.

McDonald proceeded to trial on the count relevant to this conduct, Count Five (felon in possession of ammunition), and the jury convicted him. He later successfully moved for a new trial on this count because after trial and prior to sentencing, the Supreme Court decided Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), which requires a knowledge-of-felon-status element that was not included at McDonald's trial. At the second trial on Count Five, the jury convicted him.

B.

A Presentence Report ("PSR") was prepared. The counts of which McDonald was convicted—Counts One (possession with intent to distribute cocaine base) and Five (felon in possession of ammunition)—were grouped together for purposes of calculating his total offense level under § 3D1.2(d) of the Guidelines, meaning "the count with the highest offense level, Count Five, w[as] ... the offense level for the group." J.A. 1036 ¶ 24 (citing U.S.S.G. § 3D1.3(a) ). As such, the PSR attributed McDonald with a base offense level of 22 because his offense involved a semiautomatic firearm capable of accepting a large capacity magazine, and he committed the underlying criminal activity after incurring a felony conviction for a crime of violence (Felony Common Law Robbery under North Carolina law). See U.S.S.G. § 2K2.1(a)(3)(A)(i).

The Guidelines provide that this base offense level can be increased based on all "relevant conduct" underlying the offense. See U.S.S.G. §§ 1B1.1 cmt. n.1, 1B1.3(a)(2). "Relevant conduct" includes those acts "that were part of the same course of conduct or common scheme or plan as the offense of conviction." Id. § 1B1.3(a)(2). Here, the PSR included all three incidents noted above as relevant conduct to McDonald's conviction. Based on the totality of that relevant conduct, the PSR applied a two-level enhancement because McDonald's offense involved three firearms, see U.S.S.G. § 2K2.1(b)(1)(A), and a further four-level enhancement because he used or possessed a firearm in connection with another felony offense (Count One (possession with intent to distribute cocaine base)), see U.S.S.G. § 2K2.1(b)(6)(B). Pairing his total offense level of 28 with his criminal history category of VI yielded an advisory Guidelines range of 140 to 175 months’ imprisonment.

Relevant here, McDonald objected to the base offense level and the two enhancements. He contested whether the three incidents constituted the same course of conduct or a common scheme or plan, namely, the possession of firearms with large capacity magazines. In response, as for the firearm recovered during the fleeing-on-foot incident, the Government highlighted the facts illustrating McDonald's possession, noting that "firearms ... are valuable objects which are unlikely to be left lying around in the woods, and certainly the condition of that one suggests that it had not been there long." J.A. 944. The Government also called an ATF agent, who testified that this firearm had a magazine capable of holding sixteen rounds.

As for the firearm recovered during the Taco Bell episode, the Government argued that "the way [McDonald] would know the description of that firearm—the make, the model, and the ... symbol that was on it––would be because he previously possessed that firearm and was, in fact, his gun." Id. The Government also referenced further testimony from the ATF agent, who had explained that this firearm had a magazine capable of holding twenty-two rounds. Finally, the Government addressed the firearm used during the gas station shooting, introducing a photograph from the video surveillance footage, which "depict[ed] the magazine extending far below the handgrip." J.A. 945. The Government therefore claimed that McDonald possessed all three firearms, each of which had large capacity magazines, pursuant to the same course of conduct or a common scheme or plan.

McDonald testified at sentencing. He claimed that the firearm recovered during the Taco Bell episode was not his, but rather his fiancée's brother's, and explained that he lied "to protect [his] fiancée from criminal charges because the officers told [him] that she was being charged with that firearm and being taken to jail." J.A. 923. As for the shooting at the gas station, McDonald admitted his involvement, agreeing that he was "the person ... see[n] on the ... surveillance video firing the handgun." J.A. 933. However, he claimed that the magazine involved in that...