UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5154

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEITH MICHAEL LUCKERSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,

Chief District Judge. (3:06-cr-00008)

Argued: February 1, 2008 Decided: February 29, 2008

Before MOTZ, KING, and GREGORY, Circuit Judges.

Dismissed by unpublished opinion. Judge Gregory wrote the opinion,

in which Judge Motz and Judge King joined.

ARGUED: James Stephens Weidner, Jr., Charlotte, North Carolina,

for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES

ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:

Gretchen C. F. Shappert, United States Attorney, Charlotte, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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“If the defendant used or possessed any firearm or ammunition

in connection with another felony offense; or possessed or

transferred any firearm or ammunition with knowledge, intent, or

reason to believe that it would be used or possessed in connection

with another felony offense, increase by 4 levels...”

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GREGORY, Circuit Judge:

On January 24, 2006, the Appellant, Keith Michael Luckerson

(“Luckerson”), was indicted for possession of a firearm by a felon

in violation of 18 U.S.C. § 922(g)(1) (“Count One”) and possession

with intent to distribute marijuana in violation of 21 U.S.C. § 841

(“Count Two”). Subsequently, Luckerson and the Government signed

a plea agreement in which Luckerson pled guilty to Count One in

exchange for the Government’s agreement to dismiss Count Two. The

plea agreement included a series of stipulations related to

Luckerson’s offense level along with a provision waiving (“waiver

provision”) Luckerson’s right to appeal his sentence.

The waiver provision contained three exceptions that would

allow Luckerson to appeal his sentence. At Luckerson’s sentencing,

the district court applied a non-stipulated four-level enhancement

pursuant to United States Sentencing Guideline (U.S.S.G.) 

§ 2K2.1(b)(5)(2005)1

. Luckerson appeals the district court’s

decision to apply the non-stipulated enhancement, and contends that

our review is proper because it falls within one of the plea

agreement’s three exceptions. After a thorough review of the

record, we dismiss Luckerson’s appeal.
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U.S.S.G. § 2K2.1(b)(1)(A)(2005).

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I.

On July 5, 2005, as Luckerson was driving from Houston to New

York, a North Carolina police officer pulled him over for speeding.

After Luckerson consented to a search of his vehicle, the police

officer looked in the vehicle’s trunk and discovered seven unloaded

new pistols, several boxes of ammunition, and marijuana. As a

result, on January 24, 2006, Luckerson was indicted for possession

of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) and

possession with intent to distribute marijuana in violation of 21

U.S.C. § 841(a). Luckerson eventually entered into a plea

agreement with the Government in which he pled guilty to the gun

possession charge, and the Government agreed to drop the marijuana

possession charge.

Paragraph 7 of the plea agreement contained several

stipulations relating to the calculation of Luckerson’s offense

level under the sentencing guidelines including: Luckerson’s base

offense level (20), his eligibility for a two-level enhancement

because of the multiple firearms involved in the crime2

, and his

opportunity to obtain a three-level reduction based on acceptance

of responsibility and the timeliness with which Luckerson notified

the Government of his intent to plead guilty or provided

information to the Government about his involvement in this crime.

(J.A. 10-11.) Though the plea agreement did not contain a
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Without the four-level enhancement, Luckerson’s sentencing

guideline range would have been 33-41 months.

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stipulation setting out Luckerson’s final offense level, based on

the stipulations in the plea agreement, Luckerson’s final offense

level would have been 19.

The United States Probation Office submitted a Pre-Sentencing

Report (PSR) to the district court in which it recommended a

sentence consistent with the stipulations in paragraph 7; however,

the PSR also recommended an additional four-level enhancement

because Luckerson possessed the firearms in connection with another

felony offense - i.e., drug trafficking. U.S.S.G. § 2K2.1

(b)(5)(2005). With this four-level enhancement, the PSR calculated

Luckerson’s offense level to be 23, resulting in a sentencing

guideline range of 51-63 months.3

On October 30, 2006, Luckerson’s sentencing hearing took

place. During the hearing, Luckerson objected to the four-level

enhancement, contending that simply because both the firearms and

marijuana were located in the trunk of his vehicle did not

necessarily indicate a connection between the two items; in fact,

Luckerson claimed that their close proximity was merely fortuitous.

While conceding that the issue was “close” (J.A. 54), the district

court overruled Luckerson’s objection to the four-level

enhancement, and sentenced him to 51 months imprisonment, a twoyear term of supervised release, and a $100.00 special monetary
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assessment fee. Luckerson appeals the reasonableness of the

district court’s decision to apply the four-level enhancement.

Prior to reviewing the substance of Luckerson’s contentions, we

must determine whether the plea agreement precludes Luckerson’s

appeal.

II.

We review whether Luckerson has waived his right to appeal de

novo. See, e.g., United States v. Brown, 232 F.3d 399, 402-03 (4th

Cir. 2000). The parties disagree over whether the plea agreement’s

waiver provision bars Luckerson from appealing his sentence. The

interpretation of a plea agreement is guided by the law of

contracts. United States v. Chase, 466 F.3d 310, 314 (4th Cir.

2006). The waiver provision states, in part:

. . .[Luckerson] waives all such rights to contest the

conviction and/or sentence except for. . . . (3)the

sentence, but only to the extent defendant contests the

sentence on the basis that one or more findings on

guideline issues were inconsistent with the explicit

stipulations contained in any paragraph in the plea

agreement filed herein, or on the basis of an

unanticipated issue that arises during the sentencing

hearing and which the District Judge finds and certifies

to be of such an unusual nature as to require review by

the Fourth Circuit of Appeals.

(J.A. 13)(emphasis added). During the sentencing hearing,

Luckerson’s attorney asked the district court to certify the issue

of whether the four-level enhancement was appropriate to us. The

district court refused, holding that the issue was not unusual
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since the parties clearly anticipated it, and in fact filed briefs

on the issue. Thus, the viability of Luckerson’s appeal depends on

whether the district court’s decision to apply the non-stipulated

four-level enhancement is “inconsistent with the explicit

stipulations” in paragraph 7 of the plea agreement.

There is no doubt that the four-level enhancement applied by

the district court was not stipulated to by the parties.

Nevertheless, no provision in the plea agreement precluded the

district court from adopting additional applicable non-stipulated

sentencing enhancements. Most importantly, however, the four-level

enhancement for using a firearm in connection with another felony

was clearly not inconsistent with the explicit stipulations in the

plea agreement. To the contrary, the four-level enhancement was

perfectly consistent with all of the stipulations in paragraph 7

including the enhancement Luckerson received for possession of

multiple firearms.

III.

Because we find that the plea agreement precludes Luckerson’s

appeal of the district court’s sentence, we dismiss his appeal.

DISMISSED