United States v. Harold Bernard Green

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 23, 2007
No. 06-16089 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-80088-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HAROLD BERNARD GREEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 23, 2007)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Harold Bernard Green appeals his eighty-four month prison sentence
imposed after he pleaded guilty to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). Green contends that the district court erred by
applying a four-level increase to his offense level for possessing a firearm “in
connection with” another felony offense, possession of cocaine, under United
States Sentencing Guidelines § 2K2.1(b)(5) (Nov. 2005).
We review de novo the district court’s application and interpretation of the
Guidelines. United States v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002). We
review its factfindings for clear error and will disturb them only if we are “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) (quotation marks
omitted).
In calculating the guideline range for a firearm possession offense under 18
U.S.C. § 922(g), a four-level increase to the base offense level is required “[i]f the
defendant used or possessed any firearm or ammunition in connection with another
felony offense; or possessed or transferred any firearm or ammunition with
knowledge, intent, or reason to believe that it would be used or possessed in
connection with another felony offense . . . .” U.S.S.G. § 2K2.1(b)(5).1 The
government bears the burden of establishing by a preponderance of the evidence
1
This provision is now codified in subsection (b)(6) of the same guideline. See U.S.S.G.
§ 2K2.1(b)(6) (Nov. 2006).
2
the facts necessary to support a sentencing enhancement. United States v. Kinard,
472 F.3d 1294, 1298 (11th Cir. 2006).
In United States v. Smith, 480 F.3d 1277 (11th Cir.), cert. denied, No. 06-
11901, 2007 WL 1750209, at *1 (U.S. Oct. 1, 2007), we addressed the meaning of
the phrase “in connection with” in U.S.S.G. § 2K2.1(b)(5). Id. at 1280. We
concluded that the phrase “should be given its ordinary and natural meaning,” and
we “expressly rejected a more restrictive interpretation” that would require “the
firearm to serve a purpose related to the crime.” Id. (citations omitted). We also
noted that in previous cases applying other guideline provisions that include the
phrase “in connection with,” we have held that “in certain circumstances, mere
possession of a firearm can be enough to apply a sentencing enhancement.” Id.
(quoting United States v. Jackson, 276 F.3d 1231, 1234 (11th Cir. 2001)).
Here, the district court found that Green may have intended to commit a
robbery with the firearm and that he may have possessed the cocaine to
“embolden” himself “prior to committing the robbery.” The district court also
found that Green may have possessed the firearm in order to protect “the small
amount of drugs that he kept for his personal use.” In light of Green’s criminal
history, which includes previous convictions for robbery and drug trafficking, as
well as the stun gun, ski mask, and ammunition found in the car at the time of
3
Green’s arrest, we cannot say that the district court’s factfindings are clearly
erroneous. Those findings are based on reasonable inferences drawn from
undisputed facts, and are sufficient to warrant the “in connection with”
enhancement in this case.
We find additional support for this conclusion in United States v. Hardin,
139 F.3d 813, 815 n.3 (11th Cir. 1998), where we affirmed without discussion a §
2K2.1(b)(5) enhancement of a defendant’s sentence for possessing a firearm in
connection with possessing methamphetamine. Our recent decision in Smith
further bolsters our conclusion. There, we held that “a preponderance of the
evidence supported the district court’s finding that [the defendant] possessed the
ammunition in connection with the other felony offenses of either cocaine
possession or resisting arrest, or both” where the only connection between the
firearm and cocaine possession charges was that the defendant committed them
simultaneously. Smith, 480 F.3d at 1280.
AFFIRMED.
4