United States of America v. Arizona, 384 U.S. 436 1966 . - 2 - PER CURIAM: Kyle Odell Moore pled guilty to…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4785
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KYLE ODELL MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-453)
Submitted: April 26, 2006 Decided: September 11, 2006
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
A.F.P.D., Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, L. Patrick Auld, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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*Miranda v. Arizona, 384 U.S. 436 (1966).
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PER CURIAM:
Kyle Odell Moore pled guilty to possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was
sentenced to a term of forty-five months’ imprisonment. Moore
contends on appeal that the district court clearly erred in finding
that he possessed the firearm in connection with another felony
offense, U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2004).
We affirm.
After state authorities received information on May 13,
2004, that Moore would be transporting cocaine from Rockingham
County, North Carolina, to the beach that day, Moore was stopped
while driving his girlfriend’s car. (His license had been
suspended) Moore informed the deputy sheriff that there was a
firearm in the car and that he had a small amount of cocaine on his
person and more cocaine in his house. A revolver was recovered
from the dashboard of the car; the cocaine was in Moore’s pocket.
Moore was also in possession of about $1500 in cash. On May 18,
2004, Moore was arrested for possessing a firearm after being
convicted of a felony. He admitted, after receiving his Miranda*
warnings, that the gun belonged to him, that he had possessed it
for a while, and that he had sold two or three kilograms of cocaine
in the past year for about $20,000. Moore first moved to suppress
the firearm and all other evidence obtained as a result of the

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traffic stop, but entered a guilty plea after his motion was
denied.
The probation officer recommended a base offense level of
20, USSG § 2K2.1(a)(4)(A), and a four-level enhancement under
§ 2K2.1(b)(5) because Moore possessed the gun in connection with
another felony offense. With a three-level adjustment for
acceptance of responsibility, USSG § 3E1.1, the final recommended
offense level was 21. Moore had three criminal history points,
which placed him in category II. The recommended advisory
guideline range was 41-51 months. Moore objected to the four-level
enhancement for possession of the gun in connection with another
felony, arguing that there was “no functional nexus between the
firearm and the drugs.”
In his sentencing memorandum, Moore asserted that,
although he had previously told the deputy who stopped him that the
firearm was his, it actually belonged to his girlfriend, Sheri
McCollum, who owned the car he was driving when he was arrested and
who had acquired the gun as protection against her abusive
estranged husband. Moore said that, when he was stopped, he
removed the gun from the glove compartment and put it on the
dashboard of the car because he thought the firearm “would likely
be discovered when he reached into the glove compartment to
retrieve the vehicle registration, and believed that he would face
greater legal difficulty if he were charged with carrying a

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concealed weapon, than if he admitted to being in possession of a
firearm after being convicted of a felony.” (JA-II at 302-03).
Moore argued that the enhancement for possessing the firearm in
connection with another felony did not apply because his possession
of the gun while he was also in possession of drugs was merely
fortuitous and accidental. See United States v. Blount, 337 F.3d
404, 411 (4th Cir. 2003) (holding that § 2K2.1(b)(5) enhancement
applies if firearm “facilitates” other offense; its presence may
not be mere accident or coincidence).
At the first sentencing hearing in June 2005, McCollum
testified that the gun in the car was one she had recently borrowed
from a friend because she was afraid of her husband, from whom she
was separated, that Moore did not usually drive her car, and that
she had not told him about the gun. Under cross-examination,
McCollum said she kept the gun in her bedroom or in the console of
her car, loaded with two bullets. She said she did not keep it in
the glove compartment. Finally, McCollum said that, before she
acquired the gun, she talked to Shane Bullins, a sheriff she had
known for a good while, about whether she could legally possess a
gun that was not registered to her, and that he told her that she
could, as long as she did not carry it concealed on her person.
The government then produced evidence that the gun had been fully
loaded; Moore did not dispute this evidence.

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At the second sentencing hearing on June 21, 2005,
Rockingham County Deputy Sheriff Shane Bullins testified that he
first encountered Sheri McCollum in October 2004 when he was called
to her relative’s house to investigate a break-in almost five
months after Moore’s arrest. Bullins said he spoke to McCollum
three times after that, twice in his professional capacity and once
when he saw her at a convenience store. He recalled that, on one
of those occasions, McCollum asked him whether she would be in
trouble if she had a gun in her vehicle.
The district court determined that the weight of the
evidence, including the statement Moore made at his arrest,
indicated that Moore possessed the firearm in connection with his
drug offenses and that the gun facilitated his drug activity
because it would enable him to protect himself, his money, and his
drugs if necessary. The court considered the advisory guideline
range and the factors set out in 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2005), and imposed a sentence of forty-five months’
imprisonment.
On appeal, Moore argues that the district court erred in
applying the four-level enhancement under § 2K2.1(b)(5) because the
firearm was present in the car by mere accident or coincidence, and
had no connection to his drug offense. We review the court’s
factual determination for clear error. See United States v.
Garnett, 243 F.3d 824, 828 (4th Cir. 2001). The only evidence that

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supports Moore’s position is McCollum’s testimony. The district
court impliedly found McCollum’s testimony less credible than
Moore’s admission at arrest that the gun belonged to him.
Generally, witness credibility is within the sole province of the
fact finder, and this court will not reassess the district court’s
credibility determinations. United States v. Saunders, 886 F.2d
56, 60 (4th Cir. 1989). We conclude that the district court did
not clearly err in finding that Moore possessed the firearm in
connection with his drug offenses, and in making the four-level
enhancement under § 2K2.1(b)(5). We therefore affirm the sentence
imposed by the district court. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED

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