United States v. Eliu Garcia

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 8, 2008
THOMAS K. KAHN
No. 07-13593
CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 07-80039-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
ELIU GARCIA,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 8, 2008)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Eliu Garcia appeals his 96-month sentence for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). Garcia argues that the
district erred by applying a four-level enhancement to his base offense level,
pursuant to U.S.S.G. § 2K2.1(b)(6), for possession of a firearm in connection with
another felony offense where, according to his claims, the only evidence of
facilitation was a speculative inference based on the proximity of the gun to the
drugs found in his car.1
“[We] review[] the district court’s application and interpretation of the
sentencing guidelines under the de novo standard of review, but review[] its
findings of fact for clear error.” United States v. Rhind, 289 F.3d 690, 693 (11th
Cir. 2002). “For a factual finding to be ‘clearly erroneous,’ [we], ‘after reviewing
all of the evidence, must be left with a definite and firm conviction that a mistake
has been committed.’” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137
(11th Cir. 2004) (citation omitted).
In calculating the guideline range for a firearm possession offense under
§ 922(g), a four-level increase to the base offense level is required “[i]f the
1
As is noted at the close of this opinion, there is additional evidence that supports the
district court’s determination. Specifically, Garcia made a statement from which one could infer
that he possessed the firearm to protect his drugs from theft. Furthermore, in the record excerpts
provided by Garcia, the district court judge explicitly stated that he did not rely solely on the
proximity of the gun to the drugs to find that Garcia possessed the gun in facilitation of the other
felony.
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defendant . . . possessed any firearm . . . in connection with another felony offense
. . . .” U.S.S.G. § 2K2.1(b)(6). Effective November 1, 2006, the Guideline was
amended to add the following commentary:
14. “In Connection With”.--
(A) In General.--Subsection[] (b)(6) . . . appl[ies] if the firearm or
ammunition facilitated, or had the potential of facilitating, another
felony offense . . . .
(B) Application When Other Offense is Burglary or Drug Offense.--
Subsection[] (b)(6) . . .appl[ies] . . . 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. In these cases,
application of subsection[] (b)(6) . . . is warranted because the
presence of the firearm has the potential of facilitating another felony
offense . . .
U.S.S.G. § 2K2.1 cmt. n.14 (2006) (emphasis added). “[C]ommentary in the
Guidelines Manual that interprets or explains a guideline is authoritative unless it
violates the Constitution or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38
(1993).
In cases addressing the “in connection with” language prior to the recent
Amendment, we, relying on analogous guideline provisions, have suggested that
mere possession might be enough to apply the enhancement in circumstances
where it is reasonable to assume that the defendant possessed the firearm to
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prevent the theft of property related to the underlying offense. See Rhind, 289
F.3d at 694-96 (holding that defendants possessed firearms in connection with
counterfeiting offenses where it was reasonable to conclude that the presence of the
firearms protected the counterfeit money); United States v. Jackson, 276 F.3d
1231, 1234-35 (11th Cir. 2001) (noting we have held, in addressing the “in
connection with” requirement of analogous guideline provisions, that an
enhancement is properly applied where it was reasonable to assume possession was
for prevention of theft). Although these cases were decided prior to the
Amendment, a firearm possessed for theft protection would have the potential to
facilitate the underlying offense. See Jackson, 276 F.3d at 1234-35.
Here a loaded firearm was discovered in close proximity to a few week’s
worth of Garcia’s personal use drugs. Moreover, when Garcia was arrested, he
asked the arresting officer not to take the drugs because “ they will kill me.” From
these factors, an inference could be drawn that Garcia carried the firearm to
prevent the theft of the drugs. Thus, the district court did not clearly err by finding
that the firearm was used in connection with Garcia’s felony drug possession.
Accordingly, we affirm.
AFFIRMED.
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