United States v. Randolph , 261 F. App'x 622 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4922
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRELL DONNELL RANDOLPH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:06-cr-00042-REP)
Argued: November 2, 2007 Decided: January 17, 2008
Before NIEMEYER and KING, Circuit Judges, and James A. BEATY, Jr.,
Chief United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by unpublished opinion. Chief District Judge Beaty wrote
the opinion, in which Judge Niemeyer and Judge King joined.
ARGUED: Robert James Wagner, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. Richard Daniel Cooke, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Acting Federal
Public Defender, Alexandria, Virginia; Sapna Mirchandani, Research
and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, Alexandria, Virginia; Olivia N. Hawkins, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
BEATY, Chief District Judge:
Defendant Terrell D. Randolph appeals his conviction and
sentence for conspiracy to distribute and possess with intent to
distribute ecstasy, possession with intent to distribute ecstasy,
and possession of a firearm by a convicted felon. On appeal,
Defendant contends that the district court erred in denying his
pretrial Motion to Suppress because the warrant authorizing the
search of his apartment was not supported by probable cause and
because the warrant application contained false or misleading
information. Defendant also contends that the district court erred
in enhancing his sentence for possession of a firearm “in
connection with” another felony pursuant to section 2K2.1(b)(5) of
the United States Sentencing Guidelines. Finding no error, we
affirm.
I.
On December 8, 2005, law enforcement officers with the Central
Virginia Narcotics Task Force obtained a warrant to search
Defendant Randolph’s apartment at 5600 Petoskey Avenue, Apartment
E in Richmond, Virginia. Pursuant to the search, officers
discovered 102 ecstasy pills, a loaded 9mm pistol, additional
magazines and 9mm ammunition, and $3,635.34 in United States
currency, all located in Defendant’s bedroom. The loaded pistol
was located in Defendant’s dresser drawer, and additional
3
ammunition was located in another drawer in the same dresser.
Additional loaded magazine clips were located on the headboard of
the bed in Defendant’s bedroom, and $3,000.00 in cash was located
inside a pistol box in a safe under the bed. A second safe was
sitting on another dresser in the bedroom and contained
identification documents for Defendant, as well as 101 ecstasy
pills and $635.34 in cash, including $400 that was identified by
serial numbers as being money used earlier that day by law
enforcement officers to purchase ecstasy from a third party, Mr.
Jeffery B. Partin. An additional ecstasy pill was found on the
floor in the bedroom.
Officers with the Central Virginia Narcotics Task Force and
the Prince George County Police Department had been conducting an
ongoing investigation of Mr. Jeffery Partin since December 2004.
Officers arrested Mr. Partin on December 8, 2005 and then applied
for the warrant to search Defendant Randolph’s apartment. The
search warrant application included an affidavit by Detective
Shreves of the Central Virginia Narcotics Task Force recounting
information regarding Defendant Randolph that was obtained on three
primary occasions during the ongoing investigation of Mr. Partin.
First, the affidavit noted that on May 18, 2005, a police operative
attempted to purchase marijuana from Mr. Partin, and Mr. Partin
told the operative that he could also obtain ecstasy and that his
source of ecstasy was “outside” of the residence but did not have
4
any ecstasy at that time. According to the affidavit, officers
observed a blue Chevrolet minivan outside the residence at that
time, and a check of the minivan’s license plate number with the
Virginia Department of Motor Vehicles revealed that the minivan was
registered to Terrell Donnell Randolph at 5600 Petoskey Avenue
Apartment E in Richmond, Virginia. The affidavit further noted
that officers were subsequently able to engage in a controlled
purchase from Mr. Partin on June 23, 2005 of 5 pills that were
confirmed to be 3,4-Methylenedioxyamphetamine (“MDA” or “ecstasy”).
Second, the affidavit noted that on July 13, 2005, officers
conducted a controlled purchase of 20 ecstasy pills from Mr.
Partin, and after the purchase, Mr. Partin was followed to 5600
Petoskey Avenue, where Detective Bennett of the Prince George
County Police Department observed Mr. Partin meeting with Defendant
Randolph in a blue Chevrolet minivan in front of Apartment E.
According to the affidavit, after meeting with Mr. Partin,
Defendant Randolph entered Apartment E. The affidavit noted that
Defendant Randolph was identified using a photograph obtained from
the Virginia Department of Motor Vehicles.
Finally, the affidavit stated that on December 6, 2005, prior
to the final controlled purchase, officers conducted surveillance
of 5600 Petoskey Avenue, observed the blue Chevrolet minivan parked
in front of Apartment E, and confirmed that the vehicle was still
registered to Defendant Randolph. Then, on December 8, 2005,
5
police conducted another controlled purchase of 20 ecstasy pills
from Mr. Partin using $500 in pre-recorded bills. After the
purchase, Mr. Partin was again followed by surveillance officers
directly to 5600 Petoskey Avenue and was observed entering the
apartment complex. Mr. Partin left after a short time and was
stopped by police, at which time he had only $100 of the pre-
recorded bills remaining in his possession. The affidavit detailed
all of this information in seven single-spaced paragraphs, and
noted that each of the controlled purchases with Mr. Partin “was
completed under direct police control and supervision.” Based on
this information, the search warrant was granted and officers
conducted the search of Defendant’s apartment on December 8, 2005.
After he was indicted, Defendant moved to suppress all of the
evidence found at his apartment pursuant to the search, including
the ecstasy, cash and handgun. At the Motion to Suppress hearing,
the district court concluded that “the events of May 18, July 13
and December 8 all corroborate and reinforce each other and
establish a pattern of behavior from which the magistrate could
conclude that Randolph was Partin’s source of ecstasy or at least
that Apartment E, 5600 Petoskey Avenue was the situs of the
contraband and the other things identified as items to be seized as
well as the $400.” The District Court further noted that “the
magistrate had a substantial basis to support a finding of probable
6
cause to issue a search warrant for 5600 Petoskey Avenue, Apartment
E.” Therefore, the district court denied the motion to suppress.1
At the Motion to Suppress hearing before the district court,
Defendant also argued that the affidavit falsely stated that after
the controlled buy on December 8, Mr. Partin proceeded “directly”
to 5600 Petoskey Avenue, when in fact Mr. Partin reentered the fast
food restaurant where he had been eating in order to get his female
companion before proceeding to 5600 Petoskey Avenue. However, with
respect to this contention, the district court concluded that no
hearing was warranted on this issue because Defendant had not made
a preliminary showing that any information (or omission) in the
affidavit was false, or that any information was included
intentionally or recklessly or omitted with the intent to mislead.
Following a jury trial, Defendant was ultimately convicted of
(I) conspiracy to distribute and possess with intent to distribute
ecstasy in violation of 21 U.S.C. § 846; (ii) possession with
intent to distribute ecstasy in violation of 21 U.S.C. § 841; and
(iii) possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g). The jury found the Defendant not guilty of
possession of a firearm in furtherance of a drug trafficking crime
1
Because the district court concluded that a sufficient basis
existed to support the issuance of the warrant, the district court
did not reach the government’s alternative argument that even if
probable cause did not exist to support the issuance of the
warrant, the challenged evidence would nevertheless be admissible
pursuant to the “good faith” exception to the exclusionary rule.
See United States v. Leon, 468 U.S. 897 (1984).
7
in violation of 18 U.S.C. § 924(c). At sentencing, the district
court nevertheless concluded that in calculating the advisory
sentencing range under the United States Sentencing Guidelines,
Defendant’s sentence should be enhanced pursuant to section
2K2.1(b)(5) for possession of the firearm in connection with
another felony offense. Defendant was ultimately sentenced to
imprisonment of 115 months on each count, with the sentences to run
concurrently.
II.
We consider first Defendant’s challenge to the denial of his
pretrial Motion to Suppress. On this issue, Defendant contends
that the affidavit presented in support of the search warrant
application was not sufficient to establish probable cause to
search his residence. Defendant further contends that the
affidavit included a false statement or omission. Each of these
contentions will be considered in turn.
A.
Defendant contends first that the search of his apartment was
unconstitutional because the search warrant was not supported by
probable cause. When a search is conducted pursuant to a warrant,
the determination of probable cause by the magistrate who issued
the warrant is entitled to “great deference.” United States v.
8
Blackwood, 913 F.2d 139 (4th Cir. 1990). Thus, although our review
of legal questions is de novo, we are “not to conduct a de novo
determination of probable cause, but only to determine whether
there is substantial evidence in the record supporting the
magistrate’s decision to issue the warrant.” Massachusetts v.
Upton, 466 U.S. 727, 728 (1984); see also Illinois v. Gates, 462
U.S. 213 (1983). This already deferential review is further guided
by the recognition that the probable cause standard “is a fluid
concept - turning on the assessment of probabilities in particular
factual contexts - not readily, or even usefully, reduced to a neat
set of legal rules.” Gates, 462 U.S. at 232. Moreover, “[b]ecause
of the fourth amendment’s strong preference for searches conducted
pursuant to warrants, reviewing courts must resist the temptation
to ‘invalidate warrant[s] by interpreting affidavit[s] in a
hypertechnical, rather than a commonsense, manner.’” Blackwood,
913 F.2d at 142 (quoting Gates, 462 U.S. at 236 (internal
quotations omitted)).
The magistrate reviewing the warrant application is required
“simply to make a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit before him,
including the ‘veracity’ and ‘basis of knowledge’ of persons
supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.” Gates, 462 U.S. at 238. In addition, “the crucial element
9
is not whether the target of the search is suspected of a crime,
but whether it is reasonable to believe that the items to be seized
will be found in the place to be searched.” United States v. Lalor,
996 F.2d 1578, 1582 (4th Cir. 1993). The nexus between the place
to be searched and the items to be seized may be established by
normal inferences given all of the circumstances. Id. This nexus
may be established, for example, by information or surveillance of
a residence linking the residence to drug activity, such that it is
reasonable to believe that evidence of drug activity will be found
at the residence. See id.
Based on the information presented in the affidavit in support
of the warrant application in the present case, there was a
substantial basis on which the magistrate could have found probable
cause to believe that evidence of drug activity would be found in
Defendant’s apartment. Specifically, during a controlled buy of
marijuana from Mr. Partin on May 18, 2005, Mr. Partin told a police
operative that he could obtain ecstasy and that his source was
“outside.” Officers then observed a blue Chevrolet minivan outside
Mr. Partin’s residence at that time and checked the license plate
with Department of Motor Vehicle records, which listed the van as
being registered to Defendant at 5600 Petoskey Avenue Apartment E.
Mr. Partin did in fact obtain ecstasy shortly thereafter,
confirming that Mr. Partin could obtain ecstasy as he had claimed.
In addition, after a controlled buy of ecstasy a few weeks later on
10
July 13, 2005, officers followed Mr. Partin to 5600 Petoskey Avenue
and observed him meeting with Defendant in the blue minivan, thus
confirming the link between Mr. Partin, the Defendant, and the
minivan that was “outside” on May 18, 2005 when Mr. Partin referred
to his “source.” Officers further identified Defendant from a
Department of Motor Vehicles photograph and observed him entering
Apartment E after meeting with Mr. Partin, thereby providing an
additional link of the probable drug trafficking activities between
Defendant and Mr. Partin to Defendant’s residence. Finally,
officers initiated another controlled buy of ecstasy from Mr.
Partin on December 8, 2005. Two days prior to this controlled buy,
officers confirmed that the blue minivan was still registered to
Defendant at the same address, and they also had observed the
minivan parked outside of 5600 Petoskey Avenue Apartment E. After
the controlled buy, officers again followed Mr. Partin to 5600
Petoskey Avenue. After Mr. Partin left the apartment complex, he
was stopped, and had in his possession only $100 of the $500 given
to him during the controlled buy. We hold that given the totality
of the circumstances, and based on all of this information which
was presented to the magistrate, there was a substantial basis from
which the magistrate could conclude that Defendant was the “source”
of ecstasy referred to during the controlled buy on May 18, that
Mr. Partin returned to meet with Defendant at 5600 Petoskey Avenue
after each ecstasy sale on July 13 and December 8, that Mr. Partin
11
delivered $400 of the $500 in sale proceeds from the December 8
sale to 5600 Petoskey Avenue, and that evidence of drug activity
would probably be found at 5600 Petoskey Avenue Apartment E.
Defendant contends that officers did not have any statement
directly implicating Defendant in drug activity, and that they had
not actually observed Defendant engaged in any drug transactions.
Defendant also contends that the affidavit did not establish the
reliability of the “police operative” who engaged in the May 18,
2005 controlled buy from Mr. Partin.2 Defendant further contends
that officers did not conduct a full investigation, as reflected by
the fact that the affidavit did not include any information
regarding Defendant’s criminal history. Finally, Defendant
contends that there was insufficient information linking
Defendant’s residence to any criminal activity or suggesting that
indicia of criminal activity would be found at that residence.
However, no single type of evidence is required to establish
probable cause, and our inquiry is simply whether “there is
substantial evidence in the record supporting the magistrate’s
decision to issue the warrant,” Upton, 466 U.S. at 728. Moreover,
2
The “police operative” who engaged in the May 18, 2005
controlled buy was actually Detective Shreves himself, as Defendant
acknowledges. Although the affidavit may be ambiguous on its face
as to the identity of the “operative,” it is nevertheless clear on
the face of the affidavit that the controlled buys were supervised
by law enforcement officers, and that the statements by Mr. Partin
to the “operative” on May 18 were confirmed during the later
controlled buys of ecstasy from Mr. Partin on June 23, July 13 and
December 8.
12
an affidavit may support the issuance of a warrant even if “[n]o
single piece of evidence in it is conclusive” so long as “the
pieces fit neatly together and, so viewed, support the Magistrate’s
determination.” Upton, 466 U.S. at 733. “Finely-tuned standards
such as proof beyond a reasonable doubt or by a preponderance of
the evidence, useful in formal trials, have no place in the
magistrate’s decision. . . . [I]t is clear that ‘only the
probability, and not a prima facie showing, of criminal activity is
the standard of probable cause.’” Gates, 462 U.S. at 235 (quoting
Spinelli v. United States, 393 U.S. 410, 419 (1969)). As discussed
above, given all of the circumstances presented in the affidavit in
this case, the magistrate could have reasonably concluded that
there was a fair probability that contraband or evidence of a crime
would be found in Defendant’s apartment. The fact that some
particular type of direct evidence was not presented, or that
conclusive proof did not yet exist, does not negate the showing of
probable cause here considering the totality of the circumstances.
Therefore, the Motion to Suppress was properly denied.
B.
Defendant also contends that the warrant was invalid because
the affidavit contained false or misleading information. In order
to have been entitled to a hearing on this allegation, Defendant
must have made a preliminary showing that “a false statement
13
knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit.”
Franks v. Delaware, 438 U.S. 154 (1978).3 In addition, under
Franks, even if a false statement was included in the affidavit,
the offending information must be essential to the probable cause
determination; if the offending information is excluded and
probable cause still remains, no Franks hearing is required.
Where the alleged falsity is an omission, the Defendant must show
that the affiant omitted material facts “with the intent to make,
or in reckless disregard of whether they thereby made, the
affidavit misleading.” United States v. Colkley, 899 F.2d 297, 300
(4th Cir. 1990)(quoting United States v. Reivich, 793 F.2d 957, 961
(8th Cir. 1986)).
In the present case, Defendant contends that false information
was included in the affidavit, or that the affidavit was false by
3
Defendant raises this issue on appeal in the context of his
contention that the “good faith” exception to the exclusionary rule
should not apply in this case. See United States v. Leon, 468 U.S.
897 (1984). This “good faith” exception prevents the suppression of
evidence obtained by officers acting in reasonable reliance on an
authorized search warrant even though that warrant is subsequently
found to be invalid. However, because the district court did not
reach the issue of the “good faith” exception in this case, and
because, like the district court, we conclude that the magistrate
had before him a substantial basis for concluding that probable
cause existed, we need not consider the “good faith” exception in
this appeal. Nevertheless, the district court specifically
considered Defendant’s request for a hearing pursuant to Franks
based on Defendant’s allegations that the affidavit was false or
misleading, and Defendant has raised those allegations again on
appeal. Therefore, we will consider this Franks issue as part of
this appeal.
14
omission, because the affidavit stated that after the controlled
buy on December 8, Mr. Partin proceeded “directly” to 5600 Petoskey
Avenue. Defendant, however, contends that in fact after the
controlled buy on December 8, 2005, which occurred in the parking
lot of a fast food restaurant, Mr. Partin entered the fast food
restaurant and then left with his female companion before
proceeding to 5600 Petoskey Avenue. On appeal, Defendant raises a
similar issue regarding the July 13 sale, which also occurred at a
fast food restaurant. The affidavit states that after the July 13
controlled purchase, Mr. Partin was followed from the buy location
to 5600 Petoskey Avenue, but Defendant contends that Mr. Partin
entered the fast food restaurant and ate with other individuals
before proceeding to 5600 Petoskey Avenue. Defendant contends that
by omitting this information, the affidavit misled the magistrate
into inferring that Mr. Partin was taking the proceeds from the
sale and immediately delivering them to Mr. Randolph at his
apartment. However, the district court concluded that no hearing
was warranted on this issue because there was no preliminary
showing that this information (or omission) was false or that it
was included or omitted with the intent to mislead.
Having reviewed the district court’s decision, we conclude
that the district court did not err in finding that no Franks
hearing was required on this issue. As noted in the affidavit, all
of the controlled buys were made under police control and
15
supervision. Although Mr. Partin entered the restaurants on July
13 and December 8 after engaging in the drug transaction on each
occasion, nothing in the police reports or evidence presented would
indicate that officers observed any other actions by Mr. Partin
related to the sale proceeds before he went to 5600 Petoskey
Avenue. In addition, it is undisputed that on both December 8 and
July 13, Mr. Partin went straight to 5600 Petoskey Avenue after he
left the restaurant where the controlled purchase had occurred.
The fact that he entered the restaurants to eat or to retrieve his
companion before leaving is a minor, immaterial omission in the
circumstances, and does not render the information in the affidavit
false or otherwise create a false or misleading impression.
Moreover, Defendant has made no showing that the affiant, Detective
Shreves, made the omission with “the requisite intent to mislead.”
Colkley, 899 F.2d at 301. Thus, because Defendant did not make any
preliminary showing that the affidavit included any false statement
or omission made with intent to mislead or with reckless disregard
of whether it thereby made the affidavit misleading, no Franks
hearing was required, and the district court’s determination on
this issue is affirmed.
III.
Finally, Defendant challenges the calculation of his advisory
sentencing range under the U.S. Sentencing Guidelines. In
16
calculating the applicable advisory guideline range under the U.S.
Sentencing Guidelines the district court included a 4-point
enhancement under section 2K2.1(b)(5) for possession of the firearm
“in connection with” another felony offense. Defendant contends
that there was not sufficient evidence to establish that the
firearm was possessed in connection with another felony, as
evidenced by the jury verdict finding him not guilty on the charge
of possession of a firearm in furtherance of a drug trafficking
crime. Defendant contends that the evidence established instead
that he possessed the firearm to protect his family against a
recent “spate of violence,” including a recent shooting into his
apartment, and not in connection with any other felony.
To support an enhancement under section 2K2.1(b)(5), the
Government must prove by a preponderance of the evidence that the
Defendant possessed the firearm and that the firearm was possessed
“in connection with” another felony offense. United States v.
Nale, 101 F.3d 1000 (4th Cir. 1996); United States v. Garnett, 243
F.3d 824 (4th Cir. 2001). This requires that the firearm had some
purpose or effect with respect to the felony, that is, that the
firearm facilitated or had the potential to facilitate the offense.
United States v. Blount, 337 F.3d 404 (4th Cir. 2003) (adopting
standard set out in Smith v. United States, 508 U.S. 223 (1993),
involving use of a firearm “in relation to” a drug trafficking
crime under 18 U.S.C. § 924(c)). While the presence of the
17
firearm cannot be the result of accident or coincidence, it is
enough if the firearm was present for protection or to embolden the
actor with respect to the other felony. See United States v.
Lipford, 203 F.3d 259, 266 (4th Cir. 2000). The section
2K2.1(b)(5) enhancement is designed to apply “if, in addition to
committing a firearms offense within the scope of § 2K2.1, [the
defendant] commits a separate felony offense that is rendered more
dangerous by the presence of a firearm.” Blount, 337 F.3d at 406.
In making the Guideline calculations in this case, the
district court had before it evidence that the loaded pistol was
located in Defendant’s bedroom in his dresser drawer, near the
ecstasy pills, marijuana, and currency from Defendant’s drug sales.
The district court also had before it evidence that Defendant
engaged in drug sales from his residence where the firearm was
located. The district court found that Defendant had been a drug
dealer for some time and kept his drug supply at his residence
where the loaded pistol was found. The district court specifically
concluded that Defendant possessed the firearm for the purpose of
protecting his drugs and his drug trafficking assets. These
findings of fact are not clearly erroneous and support the
conclusion that Defendant’s possession of the firearm had the
potential to facilitate his felony drug trafficking offenses, by at
least providing protection and emboldening the Defendant.
18
Defendant contends that the Presentence Report used the wrong
standard in assessing the enhancement by concluding that it was
“not clearly improbable” that Defendant possessed the firearm while
he engaged in the drug trafficking offense. Defendant notes that
this is the standard that applies with respect to section
2D1.1(b)(1), which provides an enhancement for drug trafficking
crimes where a dangerous weapon is possessed. See Nale, 101 F.3d
at 1004 (contrasting section 2D1.1(b)(1) and section 2K2.1
standards). However, although the Presentence Report included a
reference to the section 2D1.1(b)(1) standard, the district court
did not apply that standard, and instead found that the Government
had presented sufficient evidence to support the enhancement under
the applicable section 2K2.1(b)(5) standard, specifically that the
Government had established that Defendant possessed the firearm in
connection with his felony drug trafficking, by possessing the
loaded firearm in his home where the drugs and drug proceeds were
located with the purpose of protecting his drugs and his drug
trafficking assets.
Defendant also contends that the enhancement is improper given
his acquittal on the charge of possession of a firearm in
furtherance of a drug trafficking crime under 18 U.S.C. § 924(c).
However, it is well established that a sentencing court may
consider the broad context of a defendant’s conduct in determining
an appropriate sentence, including conduct underlying an acquitted
19
charge, so long as the conduct has been proved by a preponderance
of the evidence. See United States v. Watts, 519 U.S. 148, 152
(1997) (holding that Double Jeopardy Clause did not bar
consideration of acquitted conduct in sentencing); see also United
States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005) (holding
that the Supreme Court’s decision in United States v. Booker “does
not suggest that the consideration of acquitted conduct violates
the Sixth Amendment as long as the judge does not impose a sentence
that exceeds what is authorized by the jury verdict” and instead
“sentencing judges can continue to consider relevant acquitted
conduct when applying the Guidelines in an advisory manner”). In
the present case, the district court engaged in the requisite fact-
finding by a preponderance of the evidence, computed the advisory
guideline range, and then considered the resulting advisory
guideline range along with the other sentencing factors in 18
U.S.C. § 3553(a) in imposing sentence in this case. We find no
error and therefore affirm the sentence imposed by the district
court.4
4
Defendant’s sentencing was on March 27, 2006, and the
Sentencing Guidelines in effect on that day were applied.
Effective November 1, 2006, section 2K2.1(b)(5) was renumbered and
became section 2K2.1(b)(6) with a new Application Note 14, which
provides that this enhancement applies if the firearm “facilitated,
or had the potential of facilitating, another felony offense” and
applies “in the case of a drug trafficking offense in which a
firearm is found in close proximity to drugs, drug-manufacturing
materials, or drug paraphernalia” because “the presence of the
firearm has the potential of facilitating another felony offense.”
This new Application Note adopts the standard articulated in Smith
20
IV.
For all of the reasons discussed above, we conclude that
Defendant’s Motion to Suppress was properly denied, and his
advisory Guidelines sentence was properly calculated. We therefore
affirm the judgment of the district court.
AFFIRMED
v. United States, 508 U.S. 223 (1993), requiring that the firearm
have facilitated or had the potential of facilitating another
felony offense, which is the same standard previously adopted in
this Circuit, and the new Application Note would not affect the
application of the enhancement in the present case.
21