United States v. Frederick Harris , 200 F. App'x 912 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10835 OCTOBER 16, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00182-CR-1-MHS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDRICK HARRIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 16, 2006)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Fredrick Harris appeals his 115-month sentence imposed for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal,
Harris contends that the district court erred by applying U.S.S.G. § 2K2.1(b)(5) to
enhance his base offense four levels because the government failed to present
sufficient evidence to prove that he possessed or used a firearm in connection with
any felony offense. Harris argues that, even though he was convicted in state court
for the felony offenses of possession with intent distribute marijuana and cocaine
based on the same offense conduct at issue in the instant case, later tests proved
that Harris had possessed the antacid kaolin and not cocaine. Harris acknowledges
that he cannot collaterally attack his state convictions in federal court but argues
that the district court erroneously based its application of § 2K2.1(b)(5) on Harris’s
possession of a legal substance, kaolin, which is not a felony. Harris argues further
that a substance is not a “counterfeit” drug simply because it bears some physical
similarity to prohibited substances.
We review a sentencing court’s factual findings for clear error and reviews
de novo that court’s application of the sentencing guidelines to the facts. United
States v. Jackson, 276 F.3d 1231, 1233 (11th Cir. 2001). The government bears
the burden of establishing by a preponderance of the evidence the facts necessary
to support a sentencing enhancement. United States v. Askew, 193 F.3d 1181,
1183 (11th Cir. 1999). “Preponderance of the evidence is not a high standard of
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proof. It is not, however, a toothless standard either, and a district court may not
abdicate its responsibility to ensure that the prosecution meets this standard before
adding months or years onto a defendant’s prison sentence.” Id.Section 2K2.1(b)(5), which addresses unlawful possession of firearms and
prohibited transactions involving firearms, states that a defendant’s offense level
should be increased by four levels if, inter alia, “the defendant used or possessed
any firearm . . . in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(5). A “felony offense” includes any federal, state, or local offense that
is “punishable by imprisonment for a term exceeding one year, whether or not a
criminal charge was brought or conviction obtained” and “another felony offense”
is defined as “offenses other than explosives or firearms possession or trafficking
offenses.” U.S.S.G. § 2K2.1, comments. (n.4), (n.15) (emphasis added).
Under Georgia law, it is a felony “for any person to manufacture, deliver. . .
sell or possess with intent to distribute any controlled substance” including “a
counterfeit substance” and “marijuana.” O.C.G.A. § 16-13-30(b), (h), (i), (j)(1).
The Georgia Controlled Substances Act defines a “Counterfeit substance” as “[a]
controlled substance or noncontrolled substance, which is held out to be a
controlled substance or marijuana, whether in a container or not which does not
bear a label which accurately or truthfully identifies the substance contained
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therein; or . . . Any substance, whether in a container or not, which bears a label
falsely identifying the contents as a controlled substance.” O.C.G.A. § 16-13-
21(6)(B), (C). Moreover, in Durfree v. State, 221 Ga.App. 211 (Ga. Ct. App.
1996), the Georgia Court of Appeals rejected the argument that “because the
informant supplied [the defendant] with ‘sham’ cocaine, the evidence of attempted
trafficking was insufficient.” Dufree, 221 Ga.App. at 212. The Georgia Court of
Appeals held that “the fact that [the defendant] attempted to traffic imitation
cocaine [did] not relieve her of culpability absent evidence that she knew the
substance was not cocaine.” Id.
Although § 2K2.1(b)(5) does not define the phrase “in connection with,” we
have stated that it reads this phrase expansively. United States v. Rhind, 289 F.3d
690, 695 (11th Cir. 2002) (involving the application of U.S.S.G. § 2B5.1(b)(3)’s
offense level increase for possessing a dangerous weapon “in connection with” a
counterfeiting offense). According to the ordinary and natural meaning of the
phrase “in connection with,” “the firearm does not have to facilitate the underlying
offense.” Id. at 692, 695 (holding that the defendants had possessed firearms “in
connection with” the underlying felony because the evidence showed that, even if
the firearms were unloaded and inoperable, the defendants placed them in a stolen
vehicle with the counterfeit cash, they could have easily obtained ammunition for
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the firearms, and it was reasonable to conclude that the firearms’ presence
protected the counterfeit money from theft during the execution of the felony).
Additionally, even if the “other” offense occurs contemporaneously with,
and without a distinction of conduct from, the offense of conviction, the four-level
enhancement may still be applied. See United States v. Jackson, 276 F.3d 1231,
1234 (11th Cir. 2001) (upholding enhancement where defendant pled guilty to
being a felon in possession of a firearm, which offense occurred
contemporaneously with the “other” state felony of assault and battery of police
officers). Moreover, in United States v. Gainey, 111 F.3d 834 (11th Cir. 1998)
(§ 4B1.4(b)(3)(A)1 context), we determined that the firearm was used “in
connection with” the defendant’s heroin possession because the defendant had the
heroin around his neck, and had placed the firearm in his pants pocket such that the
weapon was readily accessible to him if he needed its protection. Id. at 837; see
also United States v. Matos-Rodriguez, 188 F.3d 1300, 1308-09 (11th Cir. 1999)
(holding that, under U.S.S.G. § 2B5.1(b)(3), a firearm need not facilitate the
underlying offense of the sale of counterfeit currency in order it to be possessed “in
connection with” that offense).
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Section 4B1.4(b)(3)(A) addresses “armed career criminals” and authorizes an enhancement
“if the defendant used or possessed the firearm or ammunition in connection with a crime of
violence or controlled substance offense.” Gainey, 111 F.3d at 837 (citing § 4B1.4(b)(3)(A)).
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In this case, the district court did not err in applying a four-level
enhancement to Harris’s sentence because the record reflects that Harris possessed
the firearm in connection with two state felony offenses, which could be used
pursuant to § 2K2.1(b)(5) to enhance his sentence. First, Harris’s case meets the
“in connection with” requirement set forth in § 2K2.1 because like the defendant in
Gainey, who had heroin around his neck and a firearm in his pants pocket, Harris
was arrested with a firearm in one pocket and 15 bags of marijuana, one suspected
chunk of crack cocaine, and one suspected hit of crack cocaine in another pocket.
See Gainey, 111 F.3d at 837.
Second, Harris was convicted of four state offenses resulting from the same
offense conduct, two of which (possession with intent to distribute cocaine and
possession with intent to distribute marijuana) are considered felony offenses
under Georgia law. The fact that the crack cocaine on which the Georgia
convictions were based was later found to be fake is irrelevant for several reasons.
First, Harris pleaded guilty to both state offenses and, at that time, did not argue
that the crack cocaine was fake. Second, § 2K2.1(b)(5) only requires the firearm to
be used in connection with one felony offense and Harris had also pleaded guilty to
possession with intent to distribute marijuana, a state felony offense. Third, under
Georgia law, Harris could have also been found guilty of possession with intent to
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distribute a counterfeit substance, a felony offense pursuant to O.C.G.A. § 16-13-
30(i). Lastly, as acknowledged by Harris at his sentencing hearing, he may not
collaterally attack his state convictions in federal court.
AFFIRMED.
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