                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4509


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

RODNEY LUCAS,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:11-cr-00071-D-1)


Argued:   September 20, 2013                 Decided:   October 18, 2013


Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and Gina M.
GROH, United States District Judge for the Northern District of
West Virginia, sitting by designation.


Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Groh joined.       Chief Judge Traxler wrote a
separate opinion concurring in the result.


ARGUED:   Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.     Joshua L.
Rogers, 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. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
DIAZ, Judge:
      Rodney Lucas appeals the 228-month prison sentence imposed

by   the   district     court    following    his    guilty    plea       to    being    a

convicted felon in possession of a firearm and ammunition, in

violation    of    18   U.S.C.    §§ 922(g)(1),       924.     On    appeal,         Lucas

contends that the district court procedurally erred in applying

a four-level enhancement under the U.S. Sentencing Guidelines

(“U.S.S.G.”)       § 2K2.1(b)(6)(B)       because     he     did    not    possess       a

firearm    in   connection      with    another     felony   offense.           He    also

argues that the sentence was substantively unreasonable.                               For

the reasons that follow, we reject these arguments and affirm.




                                         I.

                                         A.

      On October 13, 2009, a confidential informant told police

in Washington, North Carolina that Lucas, a convicted felon, was

gathered with several others near a Washington residence and was

in possession of a firearm.             When police officers arrived at the

scene,     Lucas   fled   on     foot   and   ran    into    the    home       of    Helen

Guthrie.     Once inside, Lucas hid a .357-magnum revolver in the

freezer.     The police followed Lucas into the house and found six

rounds of .357-magnum ammunition on his person.                     After arresting

Lucas, officers retrieved the firearm from the freezer.



                                          3
        The police later obtained and executed a warrant to search

Lucas’s     house,     where      they    found,         inter          alia,   35    rounds    of

hollow-point ammunition.

      A grand jury charged Lucas in a two-count indictment with

possessing     a    firearm      (Count       One)       and       ammunition        (Count   Two)

after     having       been      convicted          of        a     crime       punishable     by

imprisonment for a term exceeding one year, in violation of 18

U.S.C. §§ 922(g)(1), 924.                Lucas pleaded guilty to both counts

without a plea agreement.



                                              B.

      The     Presentence        Investigation            Report         (“PSR”)      calculated

Lucas’s     criminal      history       category         at       VI.     It    recommended     an

adjusted      offense          level     of    21,        reflecting            a     four-level

enhancement pursuant to U.S.S.G. § 2K2.1, which applies when a

defendant      “used      or    possessed      any        firearm         or    ammunition     in

connection         with        another        felony              offense.”             U.S.S.G.

§ 2K2.1(b)(6)(B).

      The government moved for an upward departure pursuant to

U.S.S.G. § 4A1.3(a)(1), which authorizes an upward departure if

the   court    believes        the     defendant’s        criminal          history     category

“substantially         under-represents                 the         seriousness         of     the

defendant’s        criminal       history          or     the       likelihood         that    the

defendant will commit other crimes.”                          Lucas objected, requesting

                                               4
the   court      sentence      him    within      the     Guidelines         range      on     both

counts, to run concurrently or partially concurrently with an

undischarged         state    sentence.        He    argued      that        a   more     lenient

sentence was appropriate in light of his age 1 and the fact that

his   last       probation      violation         was     approximately            five      years

earlier.

      The       district       court       determined           that       the      four-level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was appropriate.                                    It

found that Lucas             committed     the    felony       common        law    offense      of

obstruction of justice when he hid the revolver in the freezer,

and that his illegal possession of a firearm facilitated that

offense.         In the alternative, the court found that Lucas was

guilty     of    a   felony     for    breaking         into    Guthrie’s          home.        The

resultant        offense      level      of    21,       in     combination          with      the

applicable criminal history category of VI, yielded an advisory

Guidelines range of 77 to 96 months in prison.

      The       sentencing     court       then     departed         upward        pursuant      to

U.S.S.G.        § 4A1.3(a)(4)(B).             The       court        found       that     Lucas’s

extensive criminal record warranted a ten-level increase in the

offense     level,     raising       the   total        from    21    to     31.        With    the

adjusted offense level, the advisory Guidelines range increased

to 188 to 235 months.

      1
          Lucas was forty-one years old at sentencing.



                                              5
       The court also concluded that consecutive sentences were

appropriate under U.S.S.G. § 5G1.2(d).            The court explained the

need   for   a   lengthy   sentence    in    terms   of   Lucas’s   extensive

criminal record:

       [T]his tale of the life of crime of Rodney Lucas began
       at age 17. Here we are 59 convictions later . . . .
       . . . .
       He has eight felony drug convictions, one felony
       assault by strangulation conviction, one habitual
       felon conviction.     He’s committed crimes, serious
       crimes, while on probation.    He has committed crimes
       within months or even weeks of being released from
       prison.
       Nothing--nothing other than incarceration seems to
       slow down Rodney Lucas when it comes to being a
       criminal. He truly is a one man crime wave. It’s who
       he is, it’s what he does.     And sadly . . . I think
       it’s who [he will] always be.

J.A. 85-86.

       The court imposed a 120-month sentence on Count One and a

108-month sentence on Count Two, to be served consecutively for

a total term of 228 months.      This appeal followed.



                                      II.

       Our review of criminal sentences “is limited to determining

whether they are ‘reasonable.’”            Gall v. United States, 552 U.S.

38, 46 (2007).      Our first step is to ensure that the district

court committed no significant procedural error, such as failing

to properly calculate the advisory Guidelines range.                  United

States v. Rivera-Santana, 668 F.3d 95, 100 (4th Cir.), cert.


                                       6
denied, 133 S. Ct. 274 (2012).                      “In assessing a challenge to a

sentencing court’s application of the Guidelines, we review the

court’s        factual    findings       for        clear     error    and    its   legal

conclusions de novo.”            United States v. Alvarado Perez, 609 F.3d

609, 612 (4th Cir. 2010) (internal quotation marks omitted).

     “Absent a significant procedural error, our next step is to

assess the substantive reasonableness of the sentence imposed.”

Rivera-Santana, 668 F.3d at 100.                         “In reviewing any sentence,

whether    inside,        just   outside,           or    significantly      outside   the

Guidelines       range,    we    apply     a       deferential      abuse-of-discretion

standard.”        United States v. Savillon-Matute, 636 F.3d 119, 122

(4th Cir. 2011) (internal quotation marks omitted).



                                           III.

                                               A.

                                               1.

     Lucas       first    claims    that       the       district   court    procedurally

erred     by    applying     a     four-level            enhancement   under     U.S.S.G.

§ 2K2.1.        He does not argue that obstruction of justice cannot

constitute “another felony” for purposes of the enhancement. 2


     2
       “Obstruction of justice is a common law offense in North
Carolina” and encompasses “any act which prevents, obstructs,
impedes or hinders public or legal justice.” In re Kivett, 309
S.E.2d 442, 462 (N.C. 1983) (internal quotation marks omitted).
The offense is a felony if the conduct is “‘infamous, done in
(Continued)
                                               7
Rather,    he   disputes   whether       a    felon   in   possession’s     act    of

getting rid of the firearm can ever be “in connection with” a

felony     obstruction      of     justice        within        the   meaning      of

§ 2K2.1(b)(6)(B).

      A party possesses a firearm “in connection with” another

offense if the firearm “facilitated, or had the potential of

facilitating” the other offense.               U.S.S.G. § 2K2.1 cmt. n.14(A).

A firearm satisfies this requirement when it had “some purpose

or effect with respect to the other offense . . . including if

the   firearm    was    present    for       protection    or    to   embolden    the

actor.”    United States v. Jenkins, 566 F.3d 160, 162 (4th Cir.

2009)    (internal     quotation   marks       and    citation    omitted).       The

requirement is not satisfied if the firearm is present by mere

“accident or coincidence.”           United States v. Blount, 337 F.3d

404, 411 (4th Cir. 2003) (internal quotation marks omitted).

      The district court concluded that possession of a firearm

can     facilitate     obstruction       of     justice     when      the   conduct

underlying the obstruction consists of “ditching” the weapon to

avoid detection by law enforcement.                   In the district court’s




secrecy and malice, or with deceit and intent to defraud.’”
State v. Taylor, 713 S.E.2d 82, 88 (N.C. Ct. App. 2011) (quoting
N.C. Gen. Stat. § 14-3(b)).    In this case, the district court
found that Lucas hid the revolver with deceit and intent to
defraud, i.e., to prevent the police from discovering his
unlawful possession of a firearm.


                                         8
view,      when    a    felon   possesses      a     firearm,    it    is   the   illegal

presence      of       the   weapon   itself        that   motivates     the   felon   to

discard it.            And without its illegal presence, the obstruction

would not be possible.                    Cf. United States v. Nale, 101 F.3d

1000, 1004 (4th Cir. 1996) (finding the defendant possessed a

gun   in    connection        with    a    sexual    assault    because     the   offense

“would not have been possible but for the weapon”).

      In sum, the district court found that “[t]he .357 revolver

was the very subject of this obstruction of justice” and thus

“facilitated the other offense.”                    J.A. 70.     We may reverse this

finding only for clear error, which requires that we be “left

with the definite and firm conviction that a mistake has been

committed.”            United States v. Dugger, 485 F.3d 236, 239 (4th

Cir. 2007) (internal quotation marks omitted).                              Although the

evidence     in    the       record   did    not     compel    the    district    court’s

finding, we cannot say the court’s conclusions were implausible

in light of the record as a whole.                    Under such circumstances, we

do not disturb the district court’s finding, even though we may

well have weighed the evidence differently.                          See United States

v. Hall, 664 F.3d 456, 467 (4th Cir. 2012); cf. United States v.

Hampton, 628 F.3d 654, 663-64 (4th Cir. 2010) (affirming the

district court’s finding that the defendant’s possession of a

firearm, which he never exposed to officers, facilitated the



                                              9
felony of assaulting a police officer while resisting arrest

when it was a close call). 3

                                                  2.

        Lucas      also   argues       that       applying        the    enhancement        to     his

conduct         would           contravene             the    purpose           of         U.S.S.G.

§ 2K2.1(b)(6)(B).                We    have       previously            recognized        that     the

enhancement serves to “ensure that a defendant receives more

severe       punishment         if,    in    addition        to    committing        a     firearms

offense      within       the    scope       of    § 2K2.1,        he    commits      a    separate

felony offense that is rendered more dangerous by the presence

of a firearm.”            Blount, 337 F.3d at 406.                     Lucas asserts that he

rendered the firearm less dangerous by discarding it.

        However,       the      relevant          question        is     not   whether           Lucas

rendered        the    firearm        less    dangerous           by     discarding        it,     but

whether      the      other     felony--obstruction               of    justice--became           more

dangerous as a result of his conduct.                              Had Lucas successfully

concealed his unlawful possession from law enforcement by hiding

the revolver and otherwise managed to elude the officers, he

could       have   retrieved          the    weapon      after         the   police       departed.

Moreover, leaving an unsecured firearm in someone’s home without

        3
       Because we find that the                        district court did not clearly
err in finding that Lucas’s                             act of discarding the gun
facilitated a felony obstruction                        of justice, we do not address
the district court’s alternative                        finding that Lucas was guilty
of breaking into Guthrie’s house.



                                                  10
the    homeowner’s           knowledge        hardly      renders       the     weapon       less

dangerous.

       Nor       are    we   persuaded      by    Lucas’s       argument       that    applying

§ 2K2.1(b)(6)(B)             on     these     facts       will        expose     nearly        all

§ 922(g)(1) defendants to the enhancement.                             The fact that most

felons       in     possession      attempt       to     conceal       evidence       of     their

misconduct          (even     if    true)      should      not     immunize       them        from

punishment.             Moreover,     district         courts    must    make     independent

findings on all of the elements of obstruction of justice before

applying          the   enhancement,        dispelling          any     concern       that     the

enhancement will apply to felons in possession as a matter of

course.           Cf. United States v. Dunningan, 507 U.S. 87, 96-97

(1993), abrogated on other grounds, United States v. Wells, 519

U.S.       482    (1997)     (the    fact     that     “the     trial    court     must       make

findings to support all the elements of a perjury violation in

the specific case” obviates the concern that courts will enhance

sentences under U.S.S.G. § 3C1.1 for obstruction of justice as a

matter of course).

       In        sum,   we   decline     to      set    aside    the     district          court’s

application of § 2K2.1(b)(6)(B) to these facts. 4


       4
       The district court also made clear its intent to impose
“the exact same sentence on each of the[] counts” in light of
the factors enumerated in 18 U.S.C. § 3553(a).   J.A. 101.   We
find no abuse of discretion in the district court’s alternative
sentence.   As a result, any error the district court may have
(Continued)
                                                 11
                                              B.

     Lucas also contends that his 228-month prison sentence is

substantively      unreasonable.              Specifically,    he     objects       to   the

district    court’s      decision        to    upwardly     depart    under     U.S.S.G.

§ 4A1.3    based    on    his      criminal     history.      He     argues    that      the

district court improperly focused on the sheer number of past

convictions without sufficiently considering the fact that many

of those convictions were for motor vehicle offenses.                           He also

claims     that    incarceration          is       an   ineffective     deterrent        to

recidivism,       and    he   is    an   unlikely       recidivist     in     any    event

because of his age.

     When    reviewing        a     departure       under   § 4A1.3,    “we     consider

whether the sentencing court acted reasonably both with respect

to its decision to impose such a sentence and with respect to

the extent of the divergence from the sentencing range.”                            United

States v. McNeil, 598 F.3d 161, 166 (4th Cir. 2010) (internal

quotation marks omitted).

     At    sentencing,        the    district       court   waded    through     Lucas’s

extensive criminal record and carefully recounted the severity



committed in imposing the § 2K2.1 enhancement was harmless. See
Savillon-Matute, 636 F.3d at 123-24; see also United States v.
Hargrove, 701 F.3d 156, 163 (4th Cir. 2012), cert. denied, 133
S. Ct. 2403 (2013) (rejecting a narrow application of assumed
error harmless error review).




                                              12
of his past convictions.            See J.A. 79-83.        It noted that Lucas

had committed several violent offenses and underscored that his

history    “appears     only   to    be    getting    worse.”      Id.     at   84.

Additionally,     the    court      considered     Lucas’s     numerous     parole

violations, and noted that past efforts by the North Carolina

criminal justice system to show Lucas leniency failed to stop

him from engaging in criminal conduct.                    It found that only a

lengthy sentence would deter Lucas and protect the community.

In these circumstances, the 228-month sentence is substantively

reasonable.



                                          IV.

     For    the   reasons      stated     above,     we   affirm   the    sentence

imposed by the district court.

                                                                          AFFIRMED




                                          13
TRAXLER, Chief Judge, concurring in the result:

       I would affirm the sentence on the alternative basis given

by    the     district        court,     namely      that    the      § 2K2.1(b)(6)(B)

enhancement was proper because Lucas committed felony breaking

or    entering    when       he     entered   Guthrie’s      home     and   because    his

possession       of    the    firearm     facilitated       that    felony.       For    a

breaking or entering to be felonious under North Carolina law,

the unprivileged entry must be made with the intent to commit

another      felony    or     larceny.        See   N.C.G.S.    §   14-54(a);     United

States v. Carr, 592 F.3d 636, 644 (4th Cir. 2010).                          Lucas argues

that the district court clearly erred to the extent that it

found that Lucas entered Guthrie’s residence with the intent to

obstruct justice by hiding the gun there.                       I believe, however,

that it was reasonable for the court to infer that Lucas, a

felon, fled from the police because he did not want to be caught

with the gun and that he entered Guthrie’s home with the intent

of hiding the gun.

       Even assuming arguendo that the district court procedurally

erred   in    applying        the    enhancement,     however,      I   agree   with    my

colleagues that any error was harmless.                        See ante at 11 n.4.

The    district       court       unequivocally     stated     that     its   choice    of

sentence did not depend on the correctness of the enhancement,

and    the   court     declared        that   it    would    select     the   very    same

sentence were we to hold that the enhancement did not apply.

                                              14
Especially      considering      Lucas’s      truly       awful    pattern       of

recidivism, we have no reason whatsoever to doubt the district

court on this point.          Accordingly, so long as the alternative

sentence was not an abuse of discretion, any error in applying

the enhancement was harmless.              See United States v. Savillon-

Matute, 636 F.3d 119, 123 (4th Cir. 2011) (holding that when a

district court gives an alternative, substantive basis for a

sentence to account for the contingency that the district court

has   committed   procedural       error,    the    alternative     sentence    is

reviewed for abuse of discretion, and if it is found to be

reasonable, then any remaining, alleged procedural errors are

presumed to be harmless); see also United States v. Hargrove,

701 F.3d 156, 162 (4th Cir. 2012) (rejecting the argument that

Savillon-Matute should “be read narrowly to apply only under the

unique circumstances of that case”), cert. denied, 133 S. Ct.

2403 (2013).

      I do not believe that the alternative sentence constituted

an abuse of discretion.            The court discussed in great detail

Lucas’s criminal record of 59 convictions, which included many

violent crimes.         The court also noted that Lucas had violated

his   probation    on    several     occasions      and   found   that   he    was

“exceptionally    violent”     and    “a    committed     drug    dealer”     whose

proclivity for crime had only increased over the years.                       J.A.

86.     These     observations       were    well     founded     and,   if     the

                                       15
§ 2K2.1(b)(6)(B) enhancement did not apply, a significant upward

departure under U.S.S.G. § 4A1.3 would have been justified in

light of both the seriousness of Lucas’s criminal history and

the significant chance of his recidivism.




                               16
