United States v. Abasi Akeem Smith

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14284
JULY 31, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 08-00051-CR-ORL-19-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABASI AKEEM SMITH,
a.k.a. Hakeem,
a.k.a. Keem,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 31, 2009)
Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
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,
*
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).
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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. Kinnard, 472 F.3d 1294, 1298 (11th Cir. 2006).
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
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between the use of firearms and narcotics traffic”) (citation omitted). The district
court correctly applied the enhancement.
AFFIRMED.
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