United States of America v. Cedric D. Shackelford

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4770
UNITED STATES OF AMERICA
v.
CEDRIC D. SHACKELFORD,
Appellant
On Appeal from the United States District Court
for the District of Delaware
(D.C. Crim. No. 08-00035-001)
Honorable Sue L. Robinson, District Judge
Submitted under Third Circuit LAR 34.1(a)
June 2, 2009
BEFORE: MCKEE, HARDIMAN, and GREENBERG, Circuit Judges
(Filed: June 5, 2009)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this Court on Cedric D. Shackelford’s appeal from a
judgment of conviction and sentence in a criminal case entered on December 2, 2008.
Shackelford has limited his appeal to the single contention that the District Court erred as

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a matter of law when it relieved the Government of its burden of establishing the basis for
a 4-level guidelines enhancement that the Court used in calculating Schackelford’s
adjusted offense level. The District Court had jurisdiction under 18 U.S.C. § 3231, and
we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
The circumstances of the case are not complex. During the execution of a search
warrant at certain residential premises in Wilmington, Delaware, in which Shackelford
was a tenant, the officers found, among other things, a large quantity of marijuana,
miscellaneous items of drug paraphernalia, and a loaded Marlin Model 60 .22 caliber
rifle. After his later arrest Shackelford admitted that he had been involved in a cocaine
conspiracy with other residents of the premises and that the rifle was his. He also
revealed that the officers when executing the warrant had overlooked nine ounces of
cocaine concealed within the premises.
A grand jury subsequently indicted Shackelford in a two-count indictment, one
count for possession of cocaine with intent to distribute in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C) and one count for unlawful possession by a convicted felon of the
.22 caliber rifle in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Pursuant to a plea
agreement Shackelford pleaded guilty to the weapons charge, and the cocaine charge was
dismissed. Shackelford’s guidelines range was 110 to 137 months calculated on a total
offense level of 25 and a criminal history category of VI. However, the statutory
maximum sentence for the offense was 120 months. The Court imposed a 110-month

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custodial sentence to be followed by a 3-year term of supervised release.
The appeal centers on the circumstance that, pursuant to U.S.S.G. § 2K2.1(b)(6),
the Court enhanced the base offense level of 24 by 4 levels because Shackelford
possessed the rifle “in connection with” another felony case. Shackelford does not deny
that he was engaging in another felony offense when he possessed the weapon and that he
has the requisite history of felony convictions so that his possession of the rifle was
unlawful. He contends, however, that he possessed the rifle for hunting rabbits and
squirrels and, while his possession of the rifle was unlawful, he did not possess it in
connection with another offense, and thus the Court erred in imposing the enhancement.
In this regard, he contends that the District Court placed the burden on him to disprove
that he possessed the weapon in connection with another offense contrary to our
precedent in United States v. Dorsey, 174 F.3d 331, 332 (3d Cir. 1999), in which we said
that “[t]he burden is on the government to prove guideline enhancements by a
preponderance of the evidence.”
We reject Shackelford’s contention. We acknowledge that the District Court used
certain language that might suggest that it placed the burden on Shackelford to prove that
he did not possess the rifle in connection with another offense. But that language merely
reflected the Court’s commendable willingness to listen to Shackelford’s argument that
the obvious was not true, the obvious being that when a felon committing a drug offense
possesses a loaded firearm at the place of the offense the possession is in connection with

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the offense. It must be remembered that Shackelford was engaged in a drug offense, a
type of offense that frequently leads to violence. He was not engaged in a nonviolent
crime such a mail fraud. Clearly, the Court found by its review of the evidence that
section 2K2.1(b)(6) had been satisfied, and we have no basis to reject that finding as we
see no factual error in it. See United States v. Blackmon, 557 F.3d 113, 118 (3d Cir.
2009). We think it is manifest that even if Shackelford used the weapon in innocent
undertakings, he would not have kept it loaded in his apartment as he could not expect to
see rabbits and squirrels in such a venue.
The judgment of conviction and sentence entered December 2, 2008, will be
affirmed.

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