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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13015
Non-Argument Calendar
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D.C. Docket No. 8:11-cr-00413-JSM-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAVAR BRAND,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 13, 2013)
Before MARCUS, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Shavar Brand, through counsel, appeals his 188-month sentence, imposed
pursuant to the armed career criminal provisions of U.S.S.G. § 4B1.4, after he
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pleaded guilty to distributing cocaine base, in violation of
21 U.S.C. § 841(a)(1)
and (b)(1)(C), distributing 28 grams or more of cocaine base, in violation of
21
U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and possessing a firearm as a convicted felon,
in violation of
18 U.S.C. § 922(g)(1). On appeal, Brand argues that the district
court committed procedural error because it miscalculated his offense level and
criminal history category under U.S.S.G. § 4B1.4(b)(3)(A) and (c)(2). After
thorough review, we affirm.
Because Brand did not specifically object to the district court’s application
of U.S.S.G. § 4B1.4(b)(3)(A) and (c)(2) at the sentencing hearing, we review for
plain error his sentencing arguments raised for the first time on appeal. United
States v. Beckles,
565 F.3d 832, 842 (11th Cir. 2009). To demonstrate plain error,
the defendant must establish that (1) there is an error; (2) that is plain; (3) affecting
his substantial rights in that it was prejudicial and not harmless; and (4) that
seriously affects the fairness, integrity, or public reputation of the judicial
proceedings.
Id. In order to be plain enough for the plain error rule, an asserted
error must be clear from the plain meaning of a statute or constitutional provision,
or from a holding of the Supreme Court or this Court. United States v. Rodriguez,
627 F.3d 1372, 1381 (11th Cir. 2010); see also United States v. Castro,
455 F.3d
1249, 1253 (11th Cir. 2006) (stating that, when the explicit language of a statute or
rule does not specifically resolve an issue, there can be no plain error where there
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is no precedent from the Supreme Court or this Court directly resolving it). The
defendant loses under the third prong if the effect of the error on the result is
uncertain or indeterminate, such as where this Court would have to speculate.
United States v. Rodriguez,
398 F.3d 1291, 1301, 1306 (11th Cir. 2005). A failure
to object to a PSI’s factual allegations admits those facts for sentencing purposes
and precludes the argument that they contained errors. See Beckles,
565 F.3d at
843-44.
A defendant who is subject to an enhanced sentence under
18 U.S.C. §
924(e) is an armed career criminal. U.S.S.G. § 4B1.4(a). An armed career
criminal’s offense level is the greatest of: (1) the offense level applicable from
Chapters Two and Three; or (2) the offense level from § 4B1.1 (Career Offender)
if applicable; or (3)(A) 34, if the defendant used or possessed the firearm in
connection with a controlled substance offense, as defined in § 4B1.2(b); or (3)(B)
33, otherwise. Id. § 4B1.4(b). An armed career criminal’s criminal history
category is the greatest of (1) the criminal history category from Chapter Four, Part
A (Criminal History), or § 4B1.1 (Career Offender) if applicable; or (2) Category
VI, if the defendant used or possessed the firearm in connection with a controlled
substance offense, as defined in § 4B1.2(b); or (3) Category IV. Id. § 4B1.4(c).
We have given an expansive construction to § 4B1.4(b)(3)(A)’s phrase “in
connection with” and rejected the more restrictive “facilitation test,” i.e., that the
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firearm had to facilitate the other felony offense. United States v. Young,
115 F.3d
834, 836-38 (11th Cir. 1997). Likewise, we have given an expansive interpretation
to the phrase “in connection with” as contained in other guideline sections, and
refused to require that the firearm facilitate the other felony offense. See, e.g.,
United States v. Rhind,
289 F.3d 690, 695-96 (11th Cir. 2002) (addressing former
§ 2K2.1(b)(5)); United States v. Matos-Rodriguez,
188 F.3d 1300, 1308-09 (11th
Cir. 1999) (addressing former § 2B5.1(b)(3)). In interpreting the analogous phrase
in former § 2K2.1(b)(5), we said that an enhancement under that section may be
applied when the two felony offenses are for different conduct, but are committed
contemporaneously. United States v. Jackson,
276 F.3d 1231, 1234 (11th Cir.
2001). Moreover, in certain circumstances, mere possession of a firearm can be
enough to apply the § 2K2.1(b) enhancement. Id. We have also upheld as not
clearly erroneous a § 4B1.4(b)(3)(A) enhancement where the defendant had heroin,
a gun, and $377 on his person at the same time. United States v. Gainey,
111 F.3d
834, 837 (11th Cir. 1997).
In light of our expansive interpretation of the phrase “in connection with,”
Brand cannot show that the district court plainly applied the wrong legal standard
or proceeded without an adequate factual basis in determining his offense level and
criminal history category under U.S.S.G. § 4B1.4(b)(3)(A) and (c)(2). The
presentence investigation report’s unchallenged facts established that Brand had
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sold cocaine base and a firearm to an undercover officer in the same transaction,
thereby fulfilling the parties’ earlier agreement. The firearm sale thus constituted
an essential part of that particular drug sale. Although Brand’s firearm possession
need not have facilitated the drug offense, the firearm sale may have facilitated the
drug sale by allowing Brand to become a single source for crack and firearms, or
facilitated his relationship with the undercover detective, a known drug buyer. The
district court did not plainly err in concluding that Brand possessed the firearm “in
connection with” his controlled substance offense pursuant to § 4B1.4(b)(3)(A)
and (c)(2).
AFFIRMED.
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MARTIN, Circuit Judge, concurs in result.
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