UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4142

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERMAINE WHITAKER,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Max O. Cogburn, Jr., 

District Judge. (3:14-cr-00091-MOC-1)

Submitted: November 24, 2015 Decided: December 23, 2015 

Before DUNCAN, KEENAN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ross Hall Richardson, Ann L. Hester, FEDERAL DEFENDERS OF 

WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for 

Appellant. Jill Westmoreland Rose, Acting United States 

Attorney, Amy E. Ray, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Jermaine Whitaker pled guilty, without a plea agreement, to 

possession with intent to distribute a mixture and substance 

containing a detectable amount of heroin, in violation of 21 

U.S.C. § 841(a)(1) (2012), and two counts of possession of 

firearms and ammunition by a convicted felon, in violation of 18 

U.S.C. § 922(g)(1) (2012). On appeal, Whitaker challenges the 

district court’s application of a four-level enhancement under 

U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2014) for 

engaging in firearms trafficking. We affirm.

“In assessing whether a district court properly calculated 

the Guidelines range, including its application of any 

sentencing enhancements, [we] review the district court’s legal 

conclusions de novo and its factual findings for clear error.” 

United States v. Horton, 693 F.3d 463, 474 (4th Cir. 2012)

(alteration and internal quotation marks omitted). “We will 

conclude that the ruling of the district court is clearly 

erroneous only when, after reviewing all the evidence, we are 

left with the definite and firm conviction that a mistake has 

been committed.” United States v. Steffen, 741 F.3d 411, 415

(4th Cir. 2013) (internal quotation marks omitted). 

To apply an enhancement under USSG § 2K2.1(b)(5), the 

district court must find by a preponderance of the evidence that 

the defendant engaged in firearms trafficking. USSG 
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§ 2K2.1(b)(5); see Steffen, 741 F.3d at 414 (explaining that the 

government has the burden of proving applicability of 

enhancement by preponderance of evidence). “The commentary to 

§ 2K2.1 specifies that the firearm-trafficking enhancement 

applies as long as two requirements are satisfied.” United 

States v. Pineda, 770 F.3d 313, 321 (4th Cir. 2014), cert. 

denied, 135 S. Ct. 1515 (2015). Whitaker does not challenge the 

court’s finding that his conduct satisfied the first requirement

— that he “transported, transferred, or otherwise disposed of 

two or more firearms to another individual.” USSG § 2K2.1 cmt. 

n.13(A)(i). He does, however, contend that the court clearly 

erred in finding that he possessed the requisite knowledge to 

support the enhancement. Specifically, Whitaker argues that he 

neither “knew [n]or had reason to believe that [his] conduct 

would result in the transport, transfer, or disposal of a 

firearm to an individual . . . who intended to use or dispose of 

the firearm unlawfully.” USSG § 2K2.1 cmt. n.13(A)(ii)(II).

We conclude that the district court did not clearly err by 

finding that Whitaker possessed the requisite knowledge to 

support the enhancement. The preponderance of the evidence 

establishes that Whitaker had reason to believe that the 

purchasers were drug dealers. See Pineda, 770 F.3d at 322

(upholding enhancement when defendant simultaneously sold 

cocaine and firearms “to the CI with the understanding that the 
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CI’s intent was to distribute [the cocaine] to others”); United 

States v. Pepper, 747 F.3d 520, 525 (8th Cir. 2014) (upholding 

enhancement when defendant sold firearms to his drug dealer). 

Moreover, the transactions were conducted in a clandestine 

fashion, and one of the purchasers planned to sell the firearms 

out of state and had no apparent qualms about purchasing 

firearms from a convicted felon. 

While there was no direct evidence that Whitaker knew that 

the purchasers planned to use or dispose of the firearms 

unlawfully, we conclude that the court did not clearly err by 

inferring from the totality of the circumstances that Whitaker 

had reason to believe that the purchasers’ intentions with the 

firearms were not lawful. See United States v. Garcia, 635 F.3d 

472, 478 (10th Cir. 2011) (providing that court may rely on 

common-sense inferences drawn from circumstantial evidence when 

determining applicability of a § 2K2.1(b)(5) enhancement). 

Accordingly, we affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED