Opinion
No. 08-14284 Non-Argument Calendar.
July 31, 2009.
Andrew Joseph Chmelir, Jacobson, McClean, Chmelir Ferwerda, Winter Springs, FL, for Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 08-00051-CR-ORL-19-DAB.
Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
Abasi Akeem Smith appeals his 108-month sentence for possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). No reversible error has been shown; we affirm.
On appeal, Smith challenges the application of a four-level sentencing enhancement for using or possessing a firearm in connection with another felony offense, U.S.S.G. § 2K2.1(b)(6). He argues that his possession of the firearm was independent of his possession of the drugs that police officers discovered in a search of his car: the gun and the drugs were not discovered in the same location. We review a district court's interpretation of the Sentencing Guidelines de novo and its factual determinations for clear error. United States v. Pope, 461 F.3d 1331, 1333 (11th Cir. 2006).
For firearm possession offenses under section 922(g), a four-level increase to a defendant's base offense level applies "[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6). Subsection (b)(6) applies "if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense. . . ." U.S.S.G. § 2K2.1, comment. (n. 14(A)). "The government bears the burden of establishing by a preponderance of the evidence the facts necessary to support a sentencing enhancement." United States v. Kinard, 472 F.3d 1294, 1298 (11th Cir. 2006).
We afford an "expansive interpretation" to the term "in connection with." See United States v. Rhind, 289 F.3d 690, 695 (11th Cir. 2002) (analyzing the former section 2K2.1(b)(5) enhancement for possession of a firearm in connection with another felony offense).
Here, the district court committed no clear error in finding that Smith's possession of the gun had the potential to facilitate a drug offense. The undisputed facts in this case show that officers observed Smith driving a car in which the officers later discovered two plastic bags of cocaine; Smith exited this car after committing several traffic violations, ran from the scene, and dropped the gun during the pursuit. Although the gun may not have been discovered in close proximity to the drugs, Smith possessed the gun when he was in the car; and the bags of cocaine were in the driver's side door. Thus, given that the gun was in close proximity to the drugs when Smith was driving the car, the gun had the potential to facilitate a drug offense. See U.S.S.G. § 2K2.1(b)(6), comment. (n. 14(B)(ii)) (explaining that the enhancement applies in a drug trafficking offense in which the firearm is found in close proximity to drugs because presence of the firearm has the potential of facilitating another felony offense); see also United States v. Pham, 463 F.3d 1239, 1246 (11th Cir. 2006) (noting that guns are the "tool[s] of the drug trade," as there is a "frequent and overpowering connection between the use of firearms and narcotics traffic") (citation omitted). The district court correctly applied the enhancement.
AFFIRMED.