United States v. Cisson

33 F.4th 185

UNITED STATES of America, Plaintiff – Appellee,

v.Robert Christopher CISSON, Defendant – Appellant.

No. 19-4031

United States Court of Appeals, Fourth Circuit.

Argued: January 25, 2022

Decided: May 5, 2022

ARGUED: Erica Marie Soderdahl, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenville, South Carolina, for Appellant. Benjamin Neale Garner, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Benjamin T. Stepp, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenville, South Carolina, for Appellant. Sherri A. Lydon, United States Attorney, Columbia, South Carolina, Maxwell B. Cauthen, III, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee

Before MOTZ, AGEE, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Agee and Judge Wynn joined.

DIANA GRIBBON MOTZ, Circuit Judge:

Robert Christopher Cisson, a convicted felon, pled guilty to possessing a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). In his original appellate briefing, Cisson raised only one claim: that the district court erred in applying an enhancement to his sentence under § 2K2.1(b)(6)(B) of the United States Sentencing Guidelines. For the reasons that follow, we hold that any such error would be harmless.

Four days prior to oral argument before us, Cisson filed a Rule 28(j) letter¹ raising a new claim: that the district court had also committed two errors contrary to United States v. Rogers , 961 F.3d 291 (4th Cir. 2020). We requested and received supplemental briefs from the parties on whether we should reach those late-raised claims and if so, whether the district court committed Rogers errors. We hold that we may reach the merits of these claims; but in doing so, we conclude that the court committed no Rogers errors.

Accordingly, we affirm the judgment of the district court.

I.

On or around October 8, 2016, Cisson — a convicted felon — used counterfeit twenty-dollar bills to purchase a Ruger 9mm pistol and ammunition. A federal grand jury subsequently indicted him on two counts: (1) possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) ; and (2) passing counterfeit money, in violation of 18 U.S.C. § 472. Cisson pled guilty to the first count; the Government dismissed the second.

The district court sentenced Cisson to 100 months’ imprisonment and three years’ supervised release. Cisson appealed the sentence to this Court, and we remanded for resentencing on a basis not at issue here. On remand, the probation officer prepared an amended presentence report. In doing so, the probation officer applied a sentencing enhancement under § 2K2.1(b)(6)(B) of the Sentencing Guidelines, which advises district courts to increase a defendant's offense level by four if he "used or possessed any firearm or ammunition in connection with another felony offense." Applying this enhancement, the probation officer calculated a total offense level of twenty-one and a criminal history category of V, resulting in a proposed Guidelines range of seventy to eighty-seven months’ imprisonment.

The district court held a resentencing hearing, at which Cisson raised three objections to the probation officer's Guidelines calculation. The court granted Cisson's first two objections, neither of which is at issue in this appeal. As his third objection, Cisson argued that the district court should not apply the § 2K2.1(b)(6)(B) enhancement because he had not used the pistol "in connection with" the crime of passing counterfeit money. The court overruled this objection and applied the enhancement.

Because the district court granted Cisson's first two objections, Cisson's criminal history category decreased from V to IV, which lowered his corresponding Guidelines range to fifty-seven to seventy-one months’ imprisonment. The court then sentenced Cisson to a within-Guidelines sentence of sixty-two months’ imprisonment and three years’ supervised release. Cisson noted a timely appeal of the sentence, raising only one claim: that the district court erred in applying the § 2K2.1(b)(6)(B) enhancement.

On January 21, 2022 — four days prior to oral argument in this appeal — Cisson filed a Rule 28(j) letter raising an additional claim: that the district court committed two Rogers errors that independently require that we vacate his sentence and remand for resentencing. See Suppl. Authorities, United States v. Cisson , No. 19-4031 (4th Cir. Jan. 21, 2022) (ECF No. 54). According to Cisson, the district court committed Rogers errors by: (1) orally describing a condition specifying the district to which Cisson should report after his release in a way that differed from the description of that condition in the court's written judgment; and (2) orally announcing merely that Cisson would be subject to the "mandatory standard conditions" of supervised release and thereby failing to adequately announce the discretionary conditions that it later imposed in its written judgment. Id. In his Rule 28(j) letter, Cisson correctly noted that we decided Rogers and its progeny after he and the Government had completed briefing in his appeal.

Three days later (the day before oral argument), the Government filed a response letter. See Suppl. Authorities, Cisson , No. 19-4031 (4th Cir. Jan. 24, 2022) (ECF No. 55–1). In its letter, the Government argued not only that the district court had not committed Rogers errors but also that Cisson had waived any Rogers claims by raising them for the first time in a Rule 28(j) letter.² See id.

After oral argument, we directed the parties to file supplemental briefs addressing: (1) whether we should reach Cisson's Rogers claims even though he raised them for the first time in a Rule 28(j) letter; and if so, (2) whether the district court in fact committed any Rogers errors. See Order, Cisson , No. 19-4031 (4th Cir. Jan. 27, 2022) (ECF No. 57).

II.

We first turn to Cisson's original claim: that the district court erred in applying the § 2K2.1(b)(6)(B) sentencing enhancement.

When deciding whether a district court erred in applying a sentencing enhancement, we review the court's legal conclusions de novo and factual findings for clear error. United States v. Allen , 446 F.3d 522, 527 (4th Cir. 2006). Here, the district court orally overruled Cisson's objection without making any factual findings. Our analysis is thus strictly legal.³ Accordingly, we review the district court's application of the enhancement de novo.

A.

Section 2K2.1(b)(6)(B) of the United States Sentencing Guidelines states that a district court may increase a defendant's offense level by four if the defendant "used or possessed any firearm or ammunition in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6)(B). Cisson does not dispute that he "possessed [a] firearm or ammunition." Nor does he dispute that he committed "another felony offense" by using counterfeit money. Cisson's sole challenge to the enhancement is that his possession of the firearm was not "in connection with" the counterfeit money offense.

"The Government bears the burden of proving that [a] defendant possessed a firearm ‘in connection with another felony offense.’ " United States v. Blount , 337 F.3d 404, 411 (4th Cir. 2003). The commentary to the Guidelines provides that a defendant possesses a firearm "in connection with" another felony offense if the firearm "facilitated , or had the potential of facilitating ," the other offense. U.S.S.G. § 2K2.1 cmt. n.14(A) (emphasis added). We have explained that satisfying the "in connection with" requirement "is not especially burdensome." United States v. Bolden , 964 F.3d 283, 287 (4th Cir. 2020). But the Government cannot meet this burden "if the firearm was present due to mere ‘accident or coincidence.’ " United States v. Jenkins , 566 F.3d 160, 163 (4th Cir. 2009) (quoting Blount , 337 F.3d at 411 ). Rather, the firearm must have " ‘ha[d] some purpose or effect’ with respect to the other offense." Id. at 162 (alteration in original) (quoting Blount , 337 F.3d at 411 ).

Often, the Government proves that a firearm had a "purpose or effect" with respect to another offense by showing that "the firearm ‘was present for protection or to embolden’ " the defendant. Id. (quoting United States v. Lipford , 203 F.3d 259, 266 (4th Cir. 2000) ). To do so in the context of a burglary, for example, the Government may demonstrate "that the defendant actually used the stolen weapon to intimidate occupants of the home, or that he prepared for this contingency by keeping the firearm close at hand." Blount , 337 F.3d at 411. To be sure, we have also stated in an unpublished opinion that "the phrase ‘in connection with’ [is] not narrowly construed to encompass only those circumstances where a firearm emboldens an individual or is used for protection" and that the phrase is instead "expansive." United States v. Larrimore , 593 F. App'x 168, 172 (4th Cir. 2014) (per curiam) (unpublished) (emphasis added). But we have also explicitly recognized that "[t]he purpose of this enhancement is to ensure that a defendant receives more severe punishment if ... he commits a separate felony offense that is rendered more dangerous by the presence of a firearm." Blount , 337 F.3d at 406 (emphasis added).

One more point of law bears mentioning. Despite the strengths or weaknesses of the parties’ arguments about applying the enhancement provision, we ultimately "need not decide" that question if we determine the error was harmless. United States v. Kobito , 994 F.3d 696, 704 (4th Cir. 2021). Rather, "we may ‘assume that a sentencing error occurred and proceed to examine whether the error affected the sentence imposed.’ " Id. (quoting United States v. Hargrove , 701 F.3d 156, 161 (4th Cir. 2012) ). We have held that the erroneous application of a Guidelines sentencing enhancement "is harmless and...