NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0762n.06 No. 10-1573 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA,
P laintif f-App ellee,

v. TRAVI S SANTEL L E BU RTON, Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF MI CHI GAN

O P I N I O N

Before: M OORE, GRIF F IN, and WH ITE, Circuit Jud ges. KA REN NELSO N MOORE, Circuit Judge. D efe ndant-Appe llant Travis Santelle Bur ton
appea ls the district court’s application of a four- level sentenc ing enhanc ement under United States Sentencing Guideline (“U .S.S.G. ” o r “ Gu id e li n e s”) § 2K2.1(b)( 6) (2009), for possession of a firea rm in c onnection with another felony

. Bur ton argues that his sentenc e was proce durally unrea sonable beca use the g overnme nt failed to demonstrate the exis tence of another felony —namely , that Bur

ton possessed marijuana for resa le. Be cause the d i s t ri ct co u rt did not clea rly err in finding that the
g overnme nt sufficie ntly established Bur ton’s intent to distribute marijuana , we AF F IRM th e d istric t court’s a pplication of § 2K2.1(b) (6).

I. BACKG ROUND & P ROCEDURE On J uly 19, 2009, office rs rec eived a 911 call stating that a man in possession of a g un was standing near a white van outside of the L ast Chance Ba r in Be nton Har

bor, Michig an. Upon arr ival,No. 10-1573

United States v. Burton

the two responding office rs encounte red Bur ton, who exactly matched the descr iption provided by the caller , leaning into the passeng er side of the vehicle and making furtive hand g estures inside the

van. When Bur

ton turned to leave , the office rs moved to appre hend him and order ed him to remove his hands from his pocke ts. I nitially , Bur ton refuse d to comply . When Burton f inally did remove his hands, t he arresting office r saw him drop a packa g e later deter mined t o co n t ai n 1 4.5 g rams of marijuana divided into ten smaller bag s. Meanw hile, peer ing into the van, the other office r observe d the butt of a pistol in plain view beneath the front passeng er seat. After obtaining consent to sear ch the vehicle, the office rs seized the g un, which authorities later deter mined was a stolen, loaded .45 caliber semiautomatic pistol. A fede ral g rand jury returne d a single -count indictment char g ing Bur ton with being a felon in possession of a firea

rm in violation of 18 U.S.C. § 922(g ). On Dec ember 8, 2009, Bur ton pleade d
g uilty , but admitted only to constructive possession of the wea pon. Acc ording to Bur

ton, he never
actua lly possessed the wea pon, but “knew the g un was in the van, and [t hat he] had acc ess to the van to ge t the g un if [he] wanted it” to se ttle a verba l a ltercation that he was having in the parking lot. R. 41 (Plea Hr’ g Tr. at 174)

. Prior to se ntencing , the U.S. Probation Offic e pre pare d a Presentenc e I nvestig ation Report (“PSR”). Apply ing U.S.S.G. § 2K2.1(a )(4) (A), the PSR rec ommended a base offe nse level of 20. Ba sed on Bur

ton’s possession of the firea rm in conce rt with indiv idually packa g ed bag s of marijuana , the repor

t also rec ommended a four- level enhancement under § 2K2.1(b)( 6). I n a Sentencing Memorandum objec ting to the f our-leve l enhanc ement, Burton’s counse l wrote: “Mr

.
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United States v. Burton

Bur ton indicates that he has no rec ollection of possession [si c] any marijuana on the night in question. He further indicates that he was unawa re of any marijuana being prese nt, and to the extent that any marij uana was found at the scene , it must have come from some other source .” R. 32 (De f.’s Sent. Mem. at 3)

. At the April 20, 2010 sentenc ing hear ing, Bur ton’s attorney p r e s e n te d th r e e g e n e r a l a s s e r

tions
to rebut the g o v er nment’s char g e of drug distribution: 1) that Bur ton had no knowledg e of the marijuana ; 2) that no one had actua lly seen Bur ton selling marijuana , acc epting money , or eng ag ing in other activity that would indicate drug traff icking ; and 3) that Bur

ton had constructively possessed the g un only to fac ilitate a verba l argument and not to assist in the sale of illega l drug s. I n contra st, the g overnme nt prese nted testimony from the arr esting office r stating that Bur ton had intentionally dropped the marijuana just prior to arr est. Additionally , the office r testified that based on his training and experienc e with nar cotics ar rests, “usually the amount of mar ijuana pac kag ed in that nature is for distribution and not persona l use.” R. 42 (Sent. Hr’g Tr. at 15). Finally , the office r testified that it was common for one selling marijuana also to possess a firea rm. Moreove r, contra

ry to Bur ton’s version of events, the office r pointed to multipl e witness statements supporting the view that Bur ton h ad ac t u al , rathe r than constructive, possession of the firea rm while at the bar that evening

. On

cross-e x amination, howeve r, the office r admitted that he could not be cert ai n t h at a person in possession of marijuana

packa g ed in this manner wa s unquestionably selling it. Over Bur ton’s objection, the district court applied the four- level enhanc ement, deter mining Bur ton’s total offe nse level to be 24, which, in conjunction with his criminal history cate g ory of V,

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y ielded a Guideline rang e of 92 to 115 months in prison. In justify ing the enhanc ement, the judge specific ally found that the office rs observe d the drug s coming out of Bur ton’s left pants pocket “within rea sonable proxi mity of [t he] v an , ” which was “close enoug h [t o the g un] to trig g er the enhanc ement.” Id. at 20. The dist rict j udg e further ex p l ai n ed, that despite t he lack of ey ewitness testimony supporting B urton’s sale of the drug s, [w] e have, bey ond contest, the discovery of about 14 1/2 g rams of marijuana , not a g reat quantity , but nonetheless separ ately packa g ed in 10 separ ate bag s, which one would rea sonably expect to be for purposes of resa le, not fo r purposes of use. I s it a hundre d p erc ent? No, it’s not a hundred perc ent, as the office r indicates in response to cross-e x amination. But t h at ’s not what’s require d at a sentenc ing h ear ing. The standard is preponde ranc e of the evidenc e, and I do thi n k t h e preponde ranc e of the evidenc e supports all elements of that enhanc ement so that the four points here would be appr opriate. Id. at 20–21. The dist rict court then i mposed a sentence of 102 months of i mprisonment. Bur ton filed this timely

appea l challeng ing the proce dural re asonable ness of that sente nce.

II. ANALYSIS The Guidelines provide for a four- level enhanc ement “[i] f the defe ndant used or possessed
any firea rm or ammunition in connec tion with another felony offe nse.” U.S.S.G. § 2K2.1(b)( 6 ). Acc ording to the application notes, the “in connec tion with” element of § 2K2.1(b)( 6) require s that the firea rm “fa cilitated, or had the potential of fac ilitating, another felony offe nse.” Id. cmt. n.14(A). For case s involving drug traff icking , howeve r, § 2K2.1(b)( 6) applies if the firea rm is mere ly “found i n close proxi mity to drug s, drug -manufa cturing materia ls, or drug para pherna lia

. . . beca

use th e

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prese nce of the firea

rm has the potential of fac ilitating another felony offe nse.” Id. cmt. n.14(B )(ii). 1 The g overnme nt bear s the burden of establishing the fac tual predic ate for a sentenc ing enhanc ement by a pre pondera

nce of the evidenc e. United States v. Ange l , 576 F.3d 318, 321 ( 6th Cir. 2009). Bur ton argues that th e district court’s application of the four- level enhanc ement under § 2K2.1(b)( 6) for

use or possession of a firea rm in connec tion with another f elony offe nse—her e, possession of marijuana with intent to distribute—was proce durally unrea sonabl e. Bur ton has admitted to at least constructively possessing the firea rm, easily satisfy

ing § 2K2.1(b)( 6)’s firea

rmpossession require ment. Thus, the s ole i ssue on appea l is whether the g overnme nt met its burden of establishing that Bur

ton had the intent to distribute the marijuana , there by satisfy ing the fac tual predic ate f

or his eng ag ement in “a

nother fe lony

offe nse.” At sentenc ing and in his objections to the P S R , Bur ton’s theory for challeng ing the

se n te n c in g e nh a

n c e me n t rested on his asser tion that he “[did] not have knowledg e of this marijuana .” R. 42 (Sent. Hr’g Tr. at 5). Perhaps to bolster his claim on appea l, Bur ton has now prese nted a new iteration of the fac ts surrounding his arr est, claiming instead that the marijuana was his and that the indi v i d u al b ags roug hly corr esponded to his ty pical daily usag e. Consist ent wit h the facts that he
prese nted below, Bur

ton also arg

ues that h e h as “v i rt ually no history of selling drug s,” that there

wer e no witness es t o s u p port the alleg ation that he was selling marijuana , and that the g un was

“Another felony offe nse” is def

ined as “ any

Fe dera l, state, or loca l offense , other than the 1 explos ive or fi rea

rms possession or traff

icking offe nse, punishable by imprisonment for a term exceeding one y ear , reg ardle ss of whether a criminal char g e was broug ht, or a conviction obtained.” U.S.S.G. § 2K2.1(b)(6) cmt. n.14(C). 5No. 10-1573

United States v. Burton

intended only to fac ilitate a persona l dispute. Appellant Br

. at 10–12. Bur ton also cites as signific ant a candid discussion with another inmate in which Bur ton admitted his possession of the marijuana but never indicated a

ny intent to sell it

. We revie w challeng es to the proce dural rea sonablen es s o f a sentenc e under an abuse- ofdiscretion standard. Gall v. United States , 552 U.S. 38, 51 (2007). When assessing proce dural

rea sonablene ss, we “r eview 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 fac ts war rant ap p lication of the § 2K2.1(b)( 6) enhanc ement. United States v. Taylor , 648 F.3d 417, 432 (6th Cir. 2011). “A finding of fac t will only be clea

rl y err oneous when, althoug h there may be some evidenc e to support the finding , ‘the revie wing court on the entire evidenc e is left with the definite and firm conviction that

a mistake has been committed.’” United States v. Latouf , 132 F.3d 320, 331 (6th Cir. 1997) (quoting Anderson v. City of Bessem er City , 470 U.S. 564, 573 (1985))

. Thus , “[ i ] f the district court interpre ts the evidenc e in a manner consistent with the rec ord, we are require d to uphold its decision

even if we would have rea ched the opposite conclusion.” United States v. Darwich , 337 F.3d 645, 663 (6th Cir. 2003) (citing Anderson , 470 U.S. at 573–74 (“Where there are two permissible views of the e vidence , the fa ctfinder ’s choice betwee n them cannot be clea rly err oneous.”) ). 2
Although the fac ts regarding Bur ton’s knowledg e and possession of the marijuana are 2 prese nted differ ently on appea l, Bur ton maintai n s , as he did below, that “ther e is no evidenc e to support a conclusion that it was Mr. Bur ton who packa g ed the marijuana or that he possessed it for resa le,” and that as a result, “the gove rnment di d not car ry its burden of establishing the propriety of the enhanc ement.” Appellant Br

. at 7. Be cause of the newly prese nted fac ts, the g overnme nt i n i t i ally argued that Bur

ton’s appea l should be subject to the even more defe rential plain-er ror standard of revie w. At oral argument, howeve r, the g overnme nt conce ded that in spite of the altere d 6No. 10-1573

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To deter mine intent t o d i s tribute drug s, a court can look to a number of fac tors, including “the possession of quantities of drug s too larg e for persona l use; the value of the drug s; the prese nce of drug distribution para

pherna lia, including scale s and packa g ing materia ls; the concur rent seizure of larg e amounts of curr ency ; and the purity of the drug s.” United States v. W oods , 26 F. App’x 448, 451 (6th Cir. 2001) (u n p u b l ished opinion) (citations om itted). Her e, the district court recog nized that the amount of marijuana was “not a g reat quantity ,” and appea rs to have m ad e t h e i ntent deter mination based solely on the mode of packa g ing. See R. 42 (Sent. Hr’g Tr. at 20). This finding

was supported by the office r’s testimony indicating that individual ba g s of marijuana like the ones in Burton’ s possession are usua lly associate d with drug traff icking

. Bur ton cites our unpublished opinion in United States v. W oods as support for his contention that the fa ct o f i n dividualiz ed packa g ing alone is insufficient to support an infere nce of intent to distribute. I n W

oods , we reve rsed a district court’s application of § 2K2.1(b)( 6), concluding that the fac tors milit ating in fa v o r of the defe ndant’s intent to distribute—individualiz ed packa g ing, the
prese nce of a g un, and t h e d efendant’s arr est in a drug are a—we re “equa lly consistent with the purchase of marijuana as they [ were] with the distribut ion of marijuana .” 26 F. App’x at 451

fac tual prese ntation, Bur

ton’s overr iding objection to the sufficie ncy of the g overnme nt’s evidenc e rema ins the same and there fore permits application of the “cle arly err oneous” standard. I n revie wing for clea r err or, howeve r, we will not fault the district court for failing to acc ount for a version of the fac ts Burton ne ver pr esente d at sentenc ing. We ther efor e base our revie w only on the evidenc e as it was prese nted to the district court and will not consider previou sly unasser ted fac ts reg arding Bur ton’s persona l use. 7No. 10-1573

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(empha sis added)

. I ndeed, those same fac tors also serve d to support that defe ndant’s testimony that the marijuana

was for his own use rather than f or re sale. Id. at 450–52. The pivotal fa ct in W

oods , howeve r, was that the defe ndant actua lly asser ted that the marijuana was for his own use and pr esente d testimony to support his a lleg ation. Woods testified that he was a daily drug user, that he had purcha sed the 7.5 g rams to make three “blunts” for his own
use, that the drug s wer e individually packa g ed when he purcha sed them, and that he was on his way home from his deale r when pol i ce m ad e t h e traff ic stop. Id. at 450. I n contra st, Bur ton never so much as sug g ested to the district court that he possessed the marijuana for his own use or that he had

rec ently purcha sed the marijuana alre ady packa g ed in that manner. A lthough the PSR did c ontain

a para g raph supporting Bur ton’s fre quent marijuana use, there was no testimony or other evidenc e
at sentenc ing to sug g est that this particula r packa g e of ten bag s of marijuana was purcha sed for that
purpose. Cf. United S t a t es v. S h i p man , 107 F. App’x 354, 356 n.2 (4th Cir. 2004) (unpublished opinion) (distinguishing W oods beca use Woods testified about his persona l use), vacate d on Booke r grounds , 543 U.S. 1114 (2005). I nstead, Bur ton’s attorney stated only that Bur ton “does not have knowledg e o f t h i s marijuana ,” and that he “didn’t find any statements or evidenc e indicating that

someone saw Mr. Bur

ton selling marijuana or passing it to any one or acc epting money from any one

or any thing like that which would be indicative usually of traff icking .” R. 42 (Sent. Hr’g Tr. at 5–6). Thus, the di strict court was left t o weig h Bur ton’s rathe r i ncre dible claim that he kne w nothing of the marijuana ’s orig ins ag ainst the g overnme nt’s evidenc e indicating 1) that the marijuana had fallen from Bur ton’s pocket just befor e his arr est and 2) that its mode of packa g ing and proxi mity to a

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firea rm g ener ally supported the conclusion that Bur ton was likely eng ag ed in drug traff icking at that time. Ba sed on these fact s an d the lack of any cre dible contra ry evidenc e, we cannot say that the district court clea

rly err ed in concluding t h at it was more likely than not that Bur ton intended to distribute the marijuana

. 3
III. CONCLUSION Be cause the district court’s application of the four- level enhanc ement under U.S.S.G. § 2K2.1(b)( 6) was not proce durally unrea sonable based on the evidenc e prese nted at sentenc ing, we AF F IRM the judg ment of the district cour t.

As an alterna

tive basis for aff

irmance , the g overnme nt argues that Bur ton’s sentenc e can be 3 u p h eld on the g round that Bur ton’s simple possession also qualifies as “anothe r felony offe n s e” under § 2K2.1(b)( 6). Be cause the g overnme nt did not prese nt this argument to the district court to permit fac tual finding s on its merits and beca use we can proper ly uphold B urton’s sentenc e on the basis of his intent to distribute the marijuana , we decline to addre ss this possibili ty

. Cf. United States v. Richardson , 510 F.3d 622, 628 ( 6th Cir. 2007). 9