NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0195n.06 No. 11-5207 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. L AWRENCE P AYNE, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF TEN

NESSEE

BEF ORE: COOK, McKEA GUE, a nd ROTH, Circuit J udg es. *

PER CURI AM. L awr ence Pay ne pleade d g uilty to being a felon in possession of a firea rm, in violation of 18 U.S.C. § 922(g ). He now appea ls his sentenc e as proce durally and substantively

unrea sonable. F or the followingrea sons, we af firm. Acc ording to the fac ts set forth in the prese ntence repor t (PSR), l aw en fo rc ement office rs

wer e executing a narc otics sear ch war rant and saw Pay

ne run into the bathroom car rying a handgun. Pay ne threw a bag containing 20 imitation ecsta sy pills onto the floor and threw the handgun out the window. Offic ers later found $121 in cash in his pocket. Pay ne’s co-de fenda

nt, Preston Coleman, was also prese nt and was found t o be carry ing a h an d gu n , 12.37 g rams of marijuana , and $733 in cash. During the sear ch of the residenc e, office rs rec overe d 33 additional imitation ec stasy pills, a

The Honorable J ane R. Roth, Circui t J u d ge o f the Unit ed S tates C ourt of Appeals for the * Third Circuit, sitti ng by

desig nation.No. 11-5207

United States v. Pay ne small amount of marijuana , and a rifle. Pay ne was char g ed in state court with the sale, delivery , or distribution of an imit ation controlled substanc e, a f elony , but the char g e wa s dismis sed. The P SR calc ulat ed P ay

ne’s base offense level as 20 and added four levels because Pay ne possessed the firea

rm in connec tion with another felony offe nse, see USSG § 2K2.1(b)( 6), resulting in an adjusted off

ense le vel of 24. Af

ter a three -leve l adjustment for acce ptance of re sponsibili ty , Pay ne’s total offe nse level was 21, which, when combined with his criminal history cate g ory of I I I , yielded a guideline ra

ng e of imprisonment of 46 to 57 months. Pay ne objected to the § 2K2.1(b)( 6) enhanc ement, arguing that it should not apply beca use possession of a counter feit controlled substance is not a felony under Tenne ssee law. See Tenn. Code Ann. § 39-17-423 (making i t a felony to sell, deliver, or distribute a counter feit controlled substance)

. The g overnme nt acknow ledg ed that the objection raised a somewhat “n o v el i s s ue” beca use the state statute did not specific ally prohibit possession with intent to distribute a counter feit controlled substance. The g overnme nt argued, howe ver, that it was rea sonable to inf er that Pay

ne planned to sell the imitation ecsta sy pills an d t h at the g un had the potential to fac ilitate that transac tion and “whatever was g oing on in that house.” The d i s trict court overr uled Pay ne’s objection to the enhanc ement, concluding a p reponderanc e of the evidenc e showed that Pay ne intended to distribute the imitation ec stasy pills. The district court also denied Pay ne’s reque st for

a downwar d varia

nce based on his me dical conditions, inc luding AI DS a nd diabetes, and imposed a sente nce of

52 months. We revie w sentenc es for proce dural and substantive rea sonablene ss. Gall v. United States , 552 U.S. 38, 51 (2007). First, we “ensur e that the district court committed no signific ant proce dural -2-No. 11-5207

United States v. Pay ne

err or, such as failing to calc ulate (or improperly calc ulating) t he Guidelines rang e, trea ting the Guidelines as mandatory , failing to consider the [18 U.S.C.] § 3553(a) fac tors, selec ting a sentenc e base d o n cl ea rl y err oneous fac ts, or failing to adequately explain the chosen sentenc e.” Id

. I f no proce dural err or occur

red, we “then consider the substantive rea sonablene ss of the sentenc e imposed under an abuse- of-discr etion standard.” Id. A sentenc e may be substantively unrea sonable “if the district court chooses the sentenc e arbitra rily , g rounds the sentenc e o n i m p ermiss ible fac tors, or

unrea sonably weig hs a pertinent fac tor.” United States v. Brooks , 628 F.3d 791, 796 (6th Cir.), cert. denied , 131 S. Ct. 3077 (2011). When a sentenc e falls within the applicable g uideline rang e, we aff ord it a re buttable pre sumption of substantive reasona bleness. Id. When considering a challeng e to the application of a § 2K2.1(b)( 6) enhanc ement, we revie w the district court’s fac tual finding s for clea r err or and acc ord “due defe renc e” to the district court’s deter mination that the firea

rm was used or possessed “in connec tion with” another felony

. United States v. Taylor , 648 F.3d 417, 431-32 (6th Cir. 2011). Pure questions of law are revie wed de novo. Id. at 431. The g ui delines provide for a four- level incre ase if the defe ndant “used or possessed any firea rm or ammuni tion in connec tion with another felony offe nse; or poss essed or tr an s fer red any firea rm . . . with knowledg e, i n t en t , o r reason to believe that it would be used or possessed in

co n n ec t i o n with another felony offe nse.” USSG § 2K2.1(b)( 6)(B ). “[T] he enhanc ement should apply ‘if the firea

rm o r am m u n i t i on fac ilitated, or had the potential of fac ilitating, another felony offe nse . . . .’” Taylor , 648 F.3d at 432 (quoting USSG § 2K2.1 cmt

. n . 1 4 (A ))

. “Another felony offe nse” is define d as any fede ral, state, or local offe nse “punishable by impr isonment for a term -3-No. 11-5207

United States v. Pay ne exceeding one y ear , reg ardle ss of whether a criminal char g e was broug ht, or a conviction obtained.” USSG § 2K2.1(b)(6) cmt. n.14(C). Pay ne points out that, althoug h it is a felony under Tenne ssee law to sell, deliver, distribute,

or manufa cture a counter feit controlled substance, mere possession of a counter feit co n trolled substance – even with the intent to distribute – is not a felony

. See Tenn. Code Ann. 39-17-423( a)- (c)

. He argues that the evidenc e establishes only that he possessed the imitation ecsta sy pills, which is a misdemeanor. See id. § 39-17-423( d). The second clause of § 2K2.1(b)( 6)(B ), howeve r, applies when a defe ndant possessed a firea rm “with knowledg e, intent, or rea son to believe that it would be used or possessed in connec tion with another felony offe nse.” As the plain lang uag e of this clause sug g ests, the rele vant inquiry is whether , at the time that the defe ndant possessed or transfe rre d the firea rm, he knew or had rea son to know that the firea rm had the potential to fac ilitate another felony , reg ardle ss of whether that felony actua lly occur red. See United States v. Richardson , 510 F.3d 622, 629-30 (6th Cir. 2007) (McKe ague, J ., concur ring ). T h u s , t h e enhanc ement applies when the

ev i d en ce establishes that the defe ndant possessed a firea rm with the intent to possess or use it, at

some time in the future, in connec tion with another felony offe nse. See, e.g. , United States v. Noster , 590 F.3d 624, 635 (9th Cir. 2009); United States v. Fredrick son , 195 F.3d 438, 440 (8th Cir. 1999); United States v. Dodge , 61 F.3d 142, 146-47 (2d Cir. 1995). Acc ording ly , the g overnme nt was not require d to show that Pay ne actua lly committed another felony , but rathe r that he intended to use or possess the firea

rm in connec tion with a felony offe nse, i.e., the sale or distribution of the imitation ecsta sy pills.

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United States v. Pay ne P ay n e ar g ues that the g overnme nt failed to make this showing beca use 20 pills is no t a “distributable amount of ecsta sy .” But we find no clea r err or in the district court’s finding that Pay ne planned to distribute the imitation ecstasy pills. I t is improbable that Pay ne would ca

rry fake pills for persona l use, both Pay ne and his co-de fenda

nt wer e car

rying handguns and signific ant amounts of cash, and, in addition to the 20 pills that Pay ne was car

rying, there wer e 33 other imitation ecsta sy pills in the apar

tment. I n light of these circ umstances, it was rea sonable to infer that Pay ne planned to sell the imitation ecsta sy pills, and that the handgun in his pocket had the potential to fac ilitate that offe nse. See United States v. Angel , 576 F.3d 318, 322-23 (6th Cir. 2009) ; United States v. Burns , 498 F.3d 578, 580- 81 (6th Cir. 2007). Pay ne nex t argues that his sentenc e is proce durally unrea sonable be cause the di strict court relied on the “cle arly err oneous” fac tual finding that he would rec eive s u p er i o r m edica l car e in a fede ral fac ility

. I n addition, Pay ne argues that the district court may have improperly leng thened his sentenc e to ensure that he would rec eive medical car e. Be cause Pay ne did not raise this issue when
t h e d istrict court ended the sentenc ing hear ing by asking for any objections that had not been previously raised, we apply plain err or revie w. See Brooks , 628 F.3d at 796; United States v. Bostic , 371 F.3d 865, 872- 73 (6th Cir. 2004). A district court “ commits no error by discussing the opportunities f or reha bilitation wit hin prison or the benef

its of specific trea

tment

. . . prog rams,” so long as it does not impose or leng then the sentenc e to ensure that the defe ndant rec eives reha bilitative service s. Tapia v. United States , 131 S. Ct. 2382, 2392-93 (2011). Be fore imposing its sentenc e, the district court revie wed the rele vant § 3553(a) fac tors, discussed Pay ne’s prior offe nses, and explained that it was reje cting Pay ne’s -5-No. 11-5207

United States v. Pay ne reque st for a below-g

uidelines sen t en ce b ecause of his extensive criminal history

. Only afte r pronouncing its sente nce did the district c ourt note that Pay ne would likely rec eive better car e in a fede ra l fa ci l i t y than any

wher e else, a point that the district court repe ated in response to Pay ne’s statement that he “mig ht not make it out” of prison beca use of the leng th of his sentenc e. Thus, the

rec ord ref lects that the di s t ri ct co u rt based its sentenc e primarily on Pay ne’s extensive criminal

rec ord, not his need f

or medica l treatment. No pla in error occur red. Finally , Pay

ne challeng es the substantive rea sonablene ss of his sentenc e, arguing that the district court g ave too much weig ht to his crimin al h istory and insufficient weig ht to his medical condition. As noted above, howeve r, the district court consider ed Pay ne’s arg uments in favor of l en i ency , in particula

r his medical issues, but found that Pay ne’s leng thy criminal history an d t h e other § 3553(a) fac tors weig hed ag ainst imposing a lower sentenc e. Under these circ umstances, Pay ne has f ailed to overc ome t he presumption that his within-guidelines se ntence is substantively

rea sonable. For these re asons, we a ffirm the district c ourt’s judg ment.

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