United States v. James Reed Griffin

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 02, 2008
No. 07-15080 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00043-CR-BAE-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES REED GRIFFIN,
a.k.a. "40",
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(July 2, 2008)
Before ANDERSON, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
James Griffin appeals his 210-month sentence imposed after his plea of
guilty to distribution of five grams or more of cocaine base under 21 U.S.C.
§ 841(a)(1). Griffin argues the district court improperly determined he “possessed”
a firearm for purposes of § 2D1.1(b)(1) when it was found at his girlfriend’s
apartment and he denied ownership.
We review the district court's interpretation of the sentencing guidelines de
novo and its factual findings for clear error. United States v. Jordi, 418 F.3d 1212,
1214 (11th Cir. 2005). “Possession of a firearm for sentencing purposes is a factual
finding.” United States v. Geffrard, 87 F.3d 448, 452 (11th Cir. 1996).
According to U.S.S.G. § 2D1.1(b)(1), a court should increase the offense
level by two “[i]f a dangerous weapon (including a firearm) was possessed.”
U.S.S.G. § 2D1.1(b)(1). If the government shows by a preponderance of the
evidence that the firearm was present at the site, the burden shifts to the defendant
to show that the connection between the firearm and the offense is clearly
improbable. United States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995). The
enhancement is also applied whenever the defendant possessed a firearm during
conduct relevant to the offense of conviction. United States v. Smith,
127 F.3d 1388, 1390 (11th Cir. 1997). Thus, the government need not show a
connection between the offense and the firearm, only that it was possessed by the
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defendant. Hall, 46 F.3d at 63-64.
In Hall, we held that the “proximity of the handgun to several drug-related
objects [and its location] in the house where [drug-related] conversations . . .
occurred” is sufficient to show the gun was “present.” 46 F.3d at 64. In Hall, the
gun was found in a bedroom where drug paraphernalia was located. Id. at 63. We
expanded this concept in United States v. Hansley, 54 F.3d 709, 716 (11th Cir.
1995), holding that a gun was “present” when it was located in the defendant’s
home with other drug-related items and conspiratorial conversations took place.
This was further clarified in United States v. Trujillo, 146 F.3d 838, 847 (11th Cir.
1998), where we held a gun was “present” when it was in an office of a warehouse
separated from the location of the drugs and the defendant had engaged in cocaine
transactions in the warehouse. .
In the present case, the gun was located in the same apartment where Griffin
was selling drugs. This is sufficient under Trujillo to show it was “present.”
146 F.3d at 847. Furthermore, a cell phone answered by Griffin and used to
arrange the drug sale was found alongside the gun in the bag. This puts the gun in
proximity to an item used in connection with the drug transaction, meeting the
initial standard set out in Hall for the gun to be “present.” 46 F.3d at 64.
Accordingly, we conclude that the district court did not clearly err by
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applying the two level enhancement. We, therefore, affirm.
AFFIRMED.
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