UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-9017

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GARY FRANK CONDREN,

Defendant-Appellant.

____________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

___________________________________________________

March 31, 1994

Before WISDOM, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

BARKSDALE, Circuit Judge:

Gary Frank Condren's sentence for being a felon in possession

of a firearm was enhanced under Sentencing Guidelines § 2K2.1(b)(5)

because illegal drugs, in addition to the firearm, were found in

his home. The only issue on appeal is the construction to be given

the "specific offense characteristic" (sentence enhancement) found

in that section: "used or possessed any firearm or ammunition in

connection with another felony offense". We AFFIRM.

I.

On January 13, 1992, Dallas undercover police officers traded

two televisions and a VCR to Condren, in exchange for five pieces

("rocks") of crack cocaine. Based on this, a search warrant for

his home was obtained; it was executed the next day. Drug
1 Condren asserts that the drawer was locked and that the

firearm was being held only as collateral for a loan made by his

then wife to their neighbors. 

2 This is the required level for a § 922(g) violation, where the

defendant also had at least two prior felony convictions for crimes

of violence or controlled substance offenses. See U.S.S.G. §

2K1.2(a)(2) (setting offense levels for firearms possession

offenses). 

3 Because Condren had a criminal history category of VI, see

U.S.S.G. Ch. 5, pt. A, the guideline imprisonment range was 140 to

175 months. But, because the statutory maximum term of

imprisonment for § 922(g) violations is 10 years, see 18 U.S.C. §

924(a)(2), the imprisonment term was adjusted downward to 120

months. U.S.S.G. § 5G1.1(a) (if guideline range exceeds statutory

maximum, the latter shall be guideline sentence). The PSR

recommended the 120 months. 

4 Condren's written objection to his offense level was to PSR ¶

11, which set his base offense level. The enhancement, however,

2

paraphernalia, including crack pipes, mirrors, and a scale were

found. And, on top of a desk in the bedroom, two rocks of crack,

which weighed .1 gram, as well as 33.3 grams of marijuana seed,

were found. Moreover, a loaded .22-caliber revolver was found in

a drawer in the desk.1 

Condren was indicted on, and pleaded guilty to, one count of

violating 18 U.S.C. § 922(g)(1), possession of a firearm by a

felon. The presentence investigation report (PSR) set his base

offense level at 24;2 and added four points pursuant to the

Guidelines section in issue, § 2K2.1(b)(5), which requires that

adjustment if the firearm was possessed "in connection with another

felony offense".3

Condren filed objections to the PSR, including to the sentence

enhancement. The enhancement objection, however, was to the wrong

subsection of § 2K2.1.4 In any event, at the sentencing hearing in
was covered (recommended) in PSR ¶ 12. And, in the objection, he

referred to the cross-reference provision of § 2K2.1(c)(2). The

objection stated that there should be "some nexus with the offense

of conviction", and that Condren objected to the enhancement

because there was no connection between "possession of a gun made

in November, 1991 [when the firearm allegedly was taken as

collateral], and on conduct alleged to have occurred in January,

1992". This may be similar to the contention made on appeal,

because, apparently, the reference to the latter conduct concerns

the possession and/or distribution of cocaine. 

As noted, the objection referred to PSR ¶ 11, and to the

cross-reference provision of § 2K2.1(c); the written objections do

not mention either PSR ¶ 12, which covered the § 2K2.1(b)(5)

enhancement that is in issue, or that section. And, although §

2K2.1(c) relates to use or possession of a firearm in connection

with another offense, as does § 2K2.1(b)(5), it was not used for

the sentence, as the Probation Officer pointed out in his responses

to Condren's objections. Rather, as also pointed out by the PSR

addendum, the enhancement was under § 2K2.1(b)(5). 

5 At sentencing, Condren was represented by a different federal

public defender than the one who had prepared the written

objections to the PSR. Condren's counsel for the first time

described his objection to the enhancement in terms of §

2K2.1(b)(5). The following colloquy occurred:

[DEFENSE COUNSEL]: ... I believe ... that in

[PSR ¶] 12 four additional offense levels were

added, because under 2K2.1(b)5 the defendant was

alleged to have possessed this weapon in connection

with another offense.

Well, that's simply not the facts here. The

only information that grants any credence to that

or even any mention of it is from the defendant's

ex-wife.... This gun has never been alleged by any

law enforcement officer or the United States

attorney to have been used in another crime. And

for that, Your Honor, we would object.

THE COURT: It appeared to me from the

presentence report that at the same time that the

defendant was possessing this gun that he was

possessing controlled substances. It would appear

to the Court that that [firearm] possession was

then during the commission of another felony. So

3

mid-November 1992, Condren's counsel objected (unsuccessfully) to

the enhancement in relation to the subsection in issue.5 
that objection is overruled.

(Emphasis added.) 

Based on this exchange, however, the objection to the §

2K2.1(b)(5) enhancement was arguably not raised adequately in the

district court. It was based only on Condren's assertion that he

had not used the firearm in connection with another offense,

whereas the district court's conclusion that the § 2K2.1(b)(5)

enhancement applied was based on its finding, under the

subsection's alternative ground, that Condren possessed it.

Condren's counsel never addressed the firearm possession basis for

the enhancement, which is mandated if the firearm is either used or

possessed in connection with another felony. Nor did he object to

the court's possession finding. Had he done so, the district court

would have had the requisite opportunity to further address this

point, and, therefore, possibly save this issue from being the

possible basis for a remand for resentencing. 

In short, it is arguable that the issue was not properly

preserved in district court; if it was not, it would be reviewed

here only for plain error. See, e.g., United States v. Olano, ___

U.S. ___, 113 S. Ct. 1770 (1993); United States v. Rodriguez, No.

93-7291, 1994 WL 49536 (5th Cir. Feb. 18, 1994); Fed. R. Crim. P.

52(b). In this instance, however, we fully review the issue,

because, as discussed infra at note 8, it is here (took its present

form) on instructions from our court, as contained in the order

denying Condren's counsel's Anders motion to withdraw. 

4

The district court, however, sustained Condren's objection to

not being granted a § 3E1.1 acceptance of responsibility

adjustment. As a result, and pursuant to a recent amendment that

allowed a maximum of three, rather than two, points for the

adjustment, the court reduced the offense level by three points to
6 Condren's PSR, prepared in September 1992 using the 1991

Sentencing Guidelines, recommended against an acceptance of

responsibility adjustment. Condren's objection asserted that he

should receive a full three-point adjustment, pursuant to the

amendments to the Guidelines effective November 1, 1992. 

Because Condren was sentenced on November 19, 1992, the 1992

amendments were applicable. They provide, as did the 1991

Guidelines, for a two-point adjustment if the defendant "clearly

demonstrates acceptance of responsibility". U.S.S.G. § 3E1.1(a).

Under the 1992 amendments, however, defendants whose offense level

is 16 or greater and who qualify under § 3E1.1(a) may also receive

an additional one-point adjustment, if they have "assisted

authorities in the investigation or prosecution of [their] own

misconduct". U.S.S.G. § 3E1.1(b). This assistance may be shown,

inter alia, by the defendant's timely entering a plea of guilty.

U.S.S.G. § 3E1.1(b); see United States v. Tello, 9 F.3d 1119, 1123-

24 (5th Cir. 1993) (construing § 3E1.1(b)). In awarding Condren

the full three points, the district court stated that the

additional (third) point was included because of "the timeliness of

[Condren's guilty] plea." 

7 But, again Condren could not be given a term of imprisonment

greater than the statutory maximum of 10 years. See U.S.S.G. §

5G1.1(c), 18 U.S.C. §§ 922(g), 924(a)(2). 

5

25.6 The ensuing guideline range was 110 to 137 months.7 Condren

was sentenced to 120 months imprisonment, to be followed by a

three-year term of supervised release. 

 II.

As noted, only the sentence enhancement is in issue. It goes

without saying that, in reviewing "sentences, we examine factual

findings subject to the `clearly erroneous' standard ... and ...

accord great deference to the trial judge's application of the

sentencing guidelines." United States v. Humphrey, 7 F.3d 1186,

1189 (5th Cir. 1993) (citing United States v. Martin, 893 F.2d 73,

74 (5th Cir. 1990) and United States v. Mejia-Orosco, 867 F.2d 216,

218 (5th Cir.), clarified, 868 F.2d 807, cert. denied, 492 U.S. 924

(1989)). The sentence will be upheld unless, inter alia, "`it was
8 Pursuant to Anders v. California, 386 U.S. 738 (1967),

Condren's counsel (federal public defender) filed a motion to

withdraw and supporting brief, maintaining that this case presented

no non-frivolous issues. Among other things, the brief asserted

that § 2K2.1(b)(5) had been properly applied, but it did not

address the issue raised now: the construction to be given

possession "in connection with another felony offense". Upon

receiving, from our court, the requisite notice of the withdrawal

submission, Anders, 386 U.S. at 741, Condren responded that, inter

alia, the district court had erred in enhancing his sentence for

possession of a firearm in connection with another felony for which

he had not been convicted. (As discussed in note 11, infra, a

conviction for the other felony is not required.)

Accordingly, although both Condren and his counsel addressed

the § 2K2.1(b)(5) enhancement, neither raised the issue now before

us. Moreover, as discussed, it was arguably not presented in the

district court. See supra notes 4-5. 

Of course, the duty to raise issues for appeal is usually

counsel's, rather than the court's. Indeed, under Anders, counsel

has an affirmative duty to advise the court of any non-frivolous

issues that, even arguably, could support an appeal. Anders, 386

U.S. at 741, 744; Lofton v. Whitley, 905 F.2d 885, 887 (5th Cir.

1990), citing and quoting Anders, 386 U.S. at 744, and Penson v.

Ohio, 488 U.S. 75 (1988). Certainly, an issue of first impression,

such as the one we consider now, should be brought to the court's

attention.

Nevertheless, if counsel does not find a non-frivolous issue

after a "conscientious examination of the case", Lofton, 905 F.2d

at 887, the duty to examine the case for issues shifts to the

court. In such cases, 

the court -- not counsel -- then proceeds, after a

6

imposed ... as a result of an incorrect application of the ...

guidelines....'" United States v. Haymer, 995 F.2d 550, 552 (5th

Cir. 1993) (quoting United States v. Howard, 991 F.2d 195, 199 (5th

Cir.), cert. denied, __ U.S. __, 114 S. Ct. 395 (1993)); accord,

Humphrey, 7 F.3d at 1189 (quoting Mejia-Orosco, 867 F.2d at 218,

and citing 28 U.S.C. § 3742(e)(1)).

Consistent with this court's order detailing the issues to be

presented, Condren challenges the § 2K2.1(b)(5) enhancement.8 It
full examination of all the proceedings, to decide

whether the case is wholly frivolous.... [I]f it

finds any of the legal points arguable on their

merits (and therefore not frivolous), it must,

prior to decision, afford [appellant] the

assistance of counsel to argue the appeal. 

Anders, 386 U.S. at 744; e.g., Moss v. Collins, 963 F.2d 44, 46-47

(5th Cir. 1992) (citing cases), cert. denied, ___ U.S. ___, 113 S.

Ct. 983 (1993). 

Upon such review, our court found the non-frivolous issue we

now address. Indeed, research revealed no previous cases from this

circuit construing the relevant language of § 2K2.1(b)(5). United

States v. Hernandez, No. 91-8249 (5th Cir. Feb. 26, 1992)

(unpublished), construed somewhat similar language in §

2K2.1(c)(1); but, as noted, that section provides a cross-reference

provision for, inter alia, firearm use or possession "in connection

with the commission or attempted commission of another offense"

(emphasis added); Condren was not sentenced under it. As shown,

the language of § 2K2.1(c)(1) differs from that of § 2K2.1(b)(5).

Therefore, our court denied the motion to withdraw, and

ordered counsel to file a brief addressing § 2K2.1(b)(5), as

detailed below, "as well as any other non-frivolous issues

[counsel] chooses to raise". The court stated: 

A review of the record reveals that the issue of

whether the district court correctly found that

Condren's offense level should be increased by four

points under U.S.S.G. § 2K2.1(b)(5) for use or

possession of a firearm in connection with another

felony offense is not frivolous under Anders ....

Whether the evidence is sufficient to show that

Condren used or possessed the firearm in connection

with the offense of distribution of cocaine is not

a frivolous issue. Whether the presence of the

drugs and the firearm in the same room is

sufficient to show use or possession of a firearm

in connection with the offense of felony possession

of controlled substances under § 2K2.1(b)(5), as

opposed to § 2K2.1(c)(1), is not a frivolous issue.

See United States v. Hernandez ....

After the supplemental brief was filed, the case was placed on the

oral argument calendar, because of the issue of first impression.

7

is mandated if, among other things, the "defendant used or

possessed [the] firearm ... in connection with another felony
9 The section states:

If 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, increase

[the base offense level] by 4 levels. If the

resulting offense level is less than level 18,

increase to level 18.

U.S.S.G. § 2K2.1(b)(5) (emphasis added).

10 As noted, however, in objecting at sentencing to the

enhancement, Condren's counsel referenced "use", not "possession":

"This gun has never been alleged by any law enforcement officer or

United States attorney to have been used in another crime." 

8

offense".9 Condren contends that the government failed to show

that his firearm possession was "in connection with," i.e., in any

way related to, his commission of "another felony".10 Therefore,

we must first identify the other felony employed in the district

court's enhancement calculus.

A.

The PSR states that Condren possessed the firearm in

connection with distribution of cocaine: 

U.S.S.G. § 2K2.1(b)(5) requires that if the

defendant possessed a firearm in connection with

another felony offense, four-levels should be

added. The defendant was in possession of a

firearm while involved in the distribution of

crack/cocaine. Therefore, four-levels are added.

In response to Condren's written (apparent) objection to this, the

Probation Officer stated only that "section [2K2.1(b)(5)] ha[d]

been appropriately applied." 

As stated, at sentencing, except for its finding acceptance of

responsibility, the district court adopted the findings in the PSR.
11 Of course, the defendant need not be charged with or convicted

of the other felony used as the basis for the enhancement.

U.S.S.G. § 2K2.1, comment. (n.7).

12 Contrary to Condren's contention, the finding by the district

court that Condren possessed the firearm and drugs at the same time

is not a rejection of the PSR's finding that he possessed the

firearm while involved in drug distribution. See Sherbak, 950 F.2d

at 1099. The court's drug possession finding constitutes an

addition to, not a rejection of, the PSR drug distribution finding.

13 The PSR contained ample evidence of Condren's previous

narcotics convictions; and the district court noted that it was

aware of them. 

14 But, although counsel conceded this point at oral argument, it

was raised as an issue in the supplemental brief, filed after we

9

Thus, it adopted the finding that Condren possessed the firearm

"while involved in" drug distribution.11 See United States v.

Sherbak, 950 F.2d 1095, 1099 (5th Cir. 1992) (court need not

explicitly adopt individual findings, but may adopt PSR as a

whole).

But also, at sentencing, see note 5, supra, the district court

found that Condren possessed the firearm "at the same time that ...

he was possessing controlled substances. It would appear to the

Court that that [firearm] possession was then during the commission

of another felony". Accordingly, it found that Condren possessed

the firearm while in possession of small quantities of crack and

marijuana seed,12 and determined that this possession was a felony,

because he had been convicted previously of a narcotics offense.13

21 U.S.C. § 844(a); 28 C.F.R. §§ 76.1, 1316.91(c). As Condren

conceded at oral argument in our court, the district court did not

err in ruling that, for enhancement purposes, Condren's drug

possession was a felony.14 
denied the Anders motion to withdraw. See supra note 8. The

supplemental brief contended that the district court had

"erroneously assumed" that Condren's possession of controlled

substances was a felony. This contention was meritless. The

district court's finding was, as noted, neither erroneous nor an

"assumption". Rather, it was based properly on evidence contained

in the PSR, to which the court expressly referred. See supra note

13.

15 Obviously, because we conclude that the firearm was possessed

in connection with the drug possession, we need not reach whether

the enhancement would also have been proper based on the drug

distribution.

10

Therefore, the district court found that Condren was engaged

in both drug felonies -- possession and distribution; the

enhancement is triggered if Condren possessed the firearm "in

connection with" either. Hence, we turn to the issue before us:

the relationship that must exist between firearm possession and the

other felony; specifically, the construction to be given "in

connection with". 

B.

We first examine Condren's firearm and drug possession.15

Neither the district court nor the PSR defines the phrase "in

connection with", or otherwise discusses the construction to be

given it. But, the PSR, which the district court adopted, does use

the phrase in explaining the enhancement. In ruling against the

enhancement objection, the district court found that Condren

possessed the firearm "at the same time that" he was possessing

drugs; that the firearm possession "was then during the commission

of another felony." Similarly, the adopted PSR finding was that

Condren possessed the firearm "while involved in" the distribution

of cocaine. (The district court's findings of fact -- i.e., that
16 Condren's wife filed for divorce approximately six weeks after

Condren was arrested. In an interview with the probation officer

who prepared the PSR, she stated that Condren periodically carried

the firearm with him when he left their house. Condren objected to

the use of this statement, stating that his ex-wife had "made all

that up and has used it as vendetta to try to get him as much time

in federal court as possible." The court required that the PSR "be

supplemented to indicate the defendant's extreme disagreement with

the statements of his ex-wife." It noted, however, that "[i]t

doesn't appear to the Court that any of the statements of the wife

resulted in raising the guideline levels for the defendant." As

discussed infra, the enhancement is amply supported by the record,

regardless of whether Condren carried the firearm outside the

11

Condren possessed the firearm while engaged in both drug possession

and distribution -- are, as stated, reviewed only for clear error.)

Therefore, in imposing the enhancement, the district court

implicitly concluded that the firearm possession was in connection

with the drug possession. 

1.

"Connection" is defined as a "causal or logical relation or

sequence". Webster's Ninth New Collegiate Dictionary 278 (1990).

Condren contends that "in connection with" requires the government

to establish a "nexus" between his firearm and drug possessions,

and that it is lacking because the drug quantity -- .1 gram of

cocaine and 33.3 grams of marijuana seed -- is consistent with

personal use and too small to support a conclusion that he

possessed the firearm in order "to protect" the drugs. In

addition, giving Condren's contention a very liberal reading, he

seems to assert that the absence of the nexus is demonstrated

further by the facts that the firearm was in a drawer (allegedly

locked) and was kept only as collateral for a loan, rather than for

any purpose related to drug possession.16
house. Mrs. Condren's statement, however, undermines his possible

contention that the firearm could not have been in connection with

his drug-related activities because it remained at all times in the

desk drawer.

17 The Tenth Circuit, one of the few to address "in connection

with" for § 2K2.1(b)(5) purposes, appears to have taken two

12

The phrase "in connection with" for § 2K2.1(b)(5) purposes is

not defined in the Guidelines; and, as noted, our circuit has not

squarely addressed the issue. The nexus requirement that Condren

urges is borrowed from 18 U.S.C. § 924(c) (proscribing the use or

carrying of a firearm "during and in relation to any crime of

violence or drug trafficking crime" (emphasis added)). See, e.g.,

United States v. Pace, 10 F.3d 1106, 1117-18 (5th Cir. 1993)

(applying § 924(c)); United States v. Capote-Capote, 946 F.2d 1100,

1104 (5th Cir. 1991), cert. denied, __ U.S. __, 112 S. Ct. 596

(1992) (same). Although, as the Tenth Circuit has noted, the

standard of proof required under § 924(c) "provides some guidance"

in construing § 2K2.1(b)(5), United States v. Gomez-Arrellano, 5

F.3d 464, 466 (10th Cir. 1993), we decline to adopt it as the

controlling standard.

First, § 924(c) expressly proscribes the use or carrying of a

firearm during or in relation to a drug trafficking crime or crime

of violence; in contrast, § 2K2.1(b)(5) mandates an enhancement

even if the defendant only possesses a firearm in connection with

any other felony. U.S.S.G. § 2K2.1(b)(5); see United States v.

Sanders, 990 F.2d 582, 585 (10th Cir.) (rejecting defendant's

contention that § 924(c) standard should control § 2K2.1(b)(5)

determination), cert. denied, 114 S. Ct. 216 (1993).17 
somewhat disparate positions. As discussed, in Gomez-Arrellano, 5

F.3d at 466-67, its more recent (Sept. 1993) pronouncement on the

issue, it held that 18 U.S.C. § 924(c) was "more closely analogous"

to § 2K2.1(b)(5) than was U.S.S.G. § 2D1.1(b) (enhancement when

firearm "was possessed" during drug trafficking offense). But, as

also noted, in Sanders, 990 F.2d at 585 (Apr. 1993), it had

previously "reject[ed] at the outset defendant's suggestion that"

it should apply § 924(c)'s standard to § 2K2.1(b)(5). Instead, it

analogized § 2K2.1(b)(5) to § 2D1.1. See United States v.

Brewster, 1 F.3d 51, 53-55 (1st Cir. 1993) (following Sanders).

Given this apparent inconsistency, and the fact that GomezArrellano does not hold that § 924(c)'s standard is controlling, we

do not perceive our decision in this case to create a split between

the circuits. This is especially true in light of our February

1992 unpublished opinion in Hernandez, see supra note 8, which

construed § 2K2.1(c)(1)'s similar language. Hernandez, decided

over a year before either Sanders or Gomez-Arrellano, held that,

for § 2K2.1(c)(1) purposes, primarily because the firearm was

simply found in the same room as drugs, it was used "in connection

with" their possession. Hernandez, slip op. at 2.

18 In so doing, the government also refers to the connection

required between the firearm and the other offense as a "nexus".

Although Condren uses this term to denote the relationship that 18

U.S.C. § 924(c) requires, the government uses it in a more generic

13

Second, § 924(c) is a criminal statute, requiring that the

government prove, beyond a reasonable doubt, the relationship of

the firearm to the drug trafficking crime or the crime of violence.

Pace, 10 F.3d at 1117. In contrast, because the subsection in

issue is under the Sentencing Guidelines, the relationship need be

proved only by a preponderance of the evidence. United States v.

Angulo, 927 F.2d 202, 205 (5th Cir. 1991); United States v. Kinder,

946 F.2d 362 (5th Cir. 1991), cert. denied, __ U.S. __, 112 S. Ct.

2290 (1992), cited in United States v. Mergerson, 4 F.3d 337, 343

(5th Cir. 1993), petition for cert. filed (U.S. Dec. 21, 1993) (No.

93-7246). 

The government urges that we construe the enhancement phrase

according to its literal and straightforward meaning.18 See
sense, to signify only the relationship that the guideline

requires. This use is consistent with the general definition of

"nexus", i.e., a "connection, link". Webster's Ninth New

Collegiate Dictionary 797 (1990). 

14

Sanders, 990 F.2d at 585 ("We think it appropriate to apply the

phrase `in connection with' in a straightforward and literal

fashion."). It maintains that, if we do, the enhancement will

apply, because both the gun and the drugs were in Condren's

possession at the same time and in close proximity to one another.

"In the absence of any statutory definition, we construe th[e]

phrase [i.e., "in connection with",] according to its ordinary and

natural meaning." United States v. Guerrero, 5 F.3d 868, 872 (5th

Cir. 1993), cert. denied, 1994 WL 11576 (U.S. Feb. 22, 1994) (No.

93-7360) (construing "`in connection with' a crime of violence"

language of U.S.S.G. § 4B1.4(b)(3)(A), and citing Smith v. United

States, __ U.S. __, __, 113 S. Ct. 2050, 2054 (1993); Perrin v.

United States, 444 U.S. 37, 43 (1979)). As noted in Guerrero, the

Supreme Court 

reads terms such as "used or possessed" quite

expansively in the context of firearms. For

instance, in order to prove a criminal defendant

"use[d] a firearm ... during and in relation to any

crime of violence or drug trafficking crime" for

purposes of 18 U.S.C. § 924(c)(1), the government

need not show the firearm was even "use[d] as a

weapon."

Id. at 872 (quoting Smith, __ U.S. at __-__, 113 S. Ct. at 2053-54

(internal quotations omitted)). In Guerrero, for purposes of §

4B1.4(b)(3)(A), we held that the defendant possessed firearms "in

connection with" a burglary even where they were not used to commit

the burglary, but were instead the fruits of it. Id. 
15

In addition, as noted, other circuits have looked to U.S.S.G.

§ 2D1.1(b) (enhancement for possession of firearm during drugtrafficking crime) for guidance in interpreting § 2K2.1(b)(5). See,

e.g., Gomez-Arrellano, 5 F.3d at 466 (10th Cir. 1993); Sanders, 990

F.2d at 585 & nn. 2-3 (10th Cir.), followed by Brewster, 1 F.3d at

54 & n.4 (1st Cir.). They acknowledge, however, that § 2D1.1, like

18 U.S.C. § 924, is an imperfect analogy to § 2K2.1(b)(5) for at

least two reasons. 

First, § 2D1.1 mandates an enhancement whenever, in a crime

involving the manufacture, import, export, trafficking, or

possession of drugs, "a dangerous weapon (including a firearm) was

possessed". Arguably, this language requires less of a

relationship, or specific connection, between the possession of the

weapon, and the drug offense. That is, § 2D1.1(b)(1) contains no

language requiring that the possession of the weapon be "in

connection with" (§§ 2K2.1(b)(5), 4B1.1(b)(3)(A)), or "in relation

to" (18 U.S.C. § 924(c)) the other offense. Second, unlike §

2K2.1(b)(5), the commentary to § 2D1.1 sets a standard by which to

judge the relationship between the firearm and the drug offense:

the enhancement applies unless it is "clearly improbable that the

weapon was connected with the offense." U.S.S.G. § 2D1.1, comment.

(n.3); Sanders, 990 F.2d at 585 (noting "explanatory vacuum"

accompanying § 2K2.1(b)(5), and declining to extend § 2D1.1's

"clearly improbable" standard to it).

Nonetheless, similar policy reasons militate in favor of the

enhancement provided by both § 2D1.1(b) and § 2K2.1(b)(5).
19 We reiterate that the enhancement is required not only for

use, but also simply for possession, of a firearm in connection

with another felony. U.S.S.G. § 2K2.1(b)(5). 

16

Sanders, 990 F.2d at 585; Guerrero, 5 F.3d at 872 & n. 9

(discussing Sanders in context of analogy between § 2D1.1(b)(1) and

"in connection with" language of § 4B1.4(b)(3)(A)). As does the

original commentary to § 2K2, the commentary to § 2D1.1 "explains

the enhancement for weapons possession ... as reflecting `the

increased danger of violence'" that exists when guns and drugs are

present together. Sanders, 990 F.2d at 585 (discussing and

comparing U.S.S.G. App. C, amend. 374 comment. (backg'd) (original

commentary to § 2K2) with U.S.S.G. § 2K1.1(b)(1) comment. (n.3)).

Simply stated, the enhancement in issue reflects the

undeniable fact that "[p]ossession of firearms obviously increases

the danger of violence whether or not such weapons are actually

used .... [I]t makes little difference how the [defendant] obtained

[the] firearms." Guerrero, 5 F.3d at 873 (emphasis in original).

As much as in a drug trafficking crime, e.g., Capote-Capote, 946

F.2d at 1104, or a crime of violence such as burglary, Guerrero, 5

F.3d at 873, this rationale applies in cases involving possession

of a firearm while in possession of drugs.19

Section 2K2.1(c)(1) presents another useful, if imperfect,

standard for comparison. As noted, it provides, as does §

2K2.1(b)(5), for an enhancement "[i]f the defendant used or

possessed any firearm or ammunition in connection with" another

offense. It specifies, however, that the firearm must be used or

possessed in connection with "the commission or attempted
17

commission of another offense". U.S.S.G. § 2K2.1(c)(1) (emphasis

added). The requirement that the firearm possession be in

connection with the commission of another offense appears to

mandate a closer relationship between the firearm and the other

offense than that required for § 2K2.1(b)(5) purposes. 

In other words, for § 2K2.1(b)(5) purposes, the connection

could be even more remote and require less proof. Yet, in the only

case from this circuit to address the issue (Hernandez, discussed

supra at note 17,) we did not require a specific showing of a close

relationship between the firearm and the drug possession. There,

as noted, we affirmed a § 2K2.1(c)(1) enhancement based primarily

on "undisputed evidence that the firearm was found in the room with

the marijuana". Hernandez, No. 91-8249, slip op. at 2

(unpublished) (emphasis added). At bottom, in Hernandez, the

simple physical proximity of the firearm to the drugs allowed the

district court properly to "conclude that the firearm was used in

connection with the possession of the marijuana." Id. (emphasis

added). 

In addition, it is well to remember that a sentencing

enhancement is being construed; a "specific offense

characteristic". Therefore, obviously, the purpose to be served by

such an enhancement must guide our giving effect to the ordinary

and natural meaning of the subsection. Specific offense

characteristics, such as those described in § 2K2.1(b), represent

the Sentencing Commission's attempt to consider "real offense"

aspects of the underlying offense. United States v. Manthei, 913
18

F.2d 1130, 1134 (5th Cir. 1990), citing and quoting U.S.S.G. Ch. 1,

Pt. A, intro., 4(a); see also U.S.S.G. Ch. 1, Pt. A, intro., p.s.

(3) (Guidelines attempt to establish "proportionality in sentencing

through a system that imposes appropriately different sentences for

criminal conduct of differing severity"). The Guidelines state

that, although they are "closer to a charge offense [rather than a

real offense] system", they 

take account of a number of important, commonly

occurring real offense elements such as role in the

offense, the presence of a gun, or the amount of

money actually taken, through alternative base

offense levels, specific offense characteristics,

cross references, and adjustments.

U.S.S.G. Ch. 1, Pt. A, intro. p.s. 4(a); see also U.S.S.G. § 1B1.3,

comment. (discussing consideration of relevant conduct in

determining sentence). Specific offense characteristics represent

an integral part of the Guidelines' "return[] ... to an earlier

philosophy that the punishment should fit the crime...." MejiaOrosco, 867 F.2d at 218. 

Chapter Two of the Guidelines relates to offense conduct; its

Part K -- including § 2K2.1(b)(5) -- pertains to offenses

"involving public safety", such as arson, use of explosives or

firearms, and transportation of hazardous materials. Section 2K2.1

provides offense levels for unlawful receipt, possession, or

transportation of firearms or ammunition. In 1991, the specific

offense characteristic represented by the subsection in issue was

added to the Guidelines (enacted in 1987). It was one of several

changes to § 2K2 that reflect increased concern about firearms,

crimes of violence, and drug offenses. Needless to say, the
19

unlawful use or possession of firearms represents an ever

increasing assault on public safety; it is a clear and present

danger. For example, 15,377 of the 22,540 murders in the United

States in 1992 were committed with firearms, of which 1,144

concerned drugs. 1992 FBI Uniform Crime Rep. for the United States

20.

Finally, § 2K2.1(b)(5) mandates that if the resulting offense

level -- after the enhancement is applied -- is less than 18, it

must be increased to that level. U.S.S.G. § 2K2.1(b)(5); see note

9, supra. This is yet another indication that the enhancement

represents an intention to impose a significantly heavier sentence,

regardless of the other offense (felony). 

Under the ordinary and natural meaning of "in connection with"

as found in § 2K2.1(b)(5), especially as informed by the above

discussion, we cannot credit either Condren's contention that the

quantity of drugs involved was too small, or the possible

contention that the source of the firearm was too unrelated, to

support the enhancement. 

a.

As to the quantity, it must be kept in mind that Condren was

actively involved in distributing cocaine; it would be more than

reasonable to infer that he would know, or assume, that other

persons would know, or assume, that he kept drugs in his home, and

that he would be concerned that those persons might seek to steal

them. (No authority need be cited for the fact that theft is a
20 At oral argument, Condren's counsel argued that to allow the

enhancement on the claimed unconnected firearm and drug possessions

in this case will open the door to similar enhancements for any

felony so long as a firearm is also possessed, offering as examples

felonies not generally associated with firearms, such as bank

fraud. Needless to say, this assertion, which was not presented in

Condren's briefs and therefore arguably need not be addressed, has

some facial appeal, but no merit. The connection between the

firearm and the other felony must be proved.

21 With regard to this issue, Condren cites United States v.

Aguilera-Zapata, 901 F.2d 1209 (5th Cir. 1990) (defendant pleaded

guilty to possession with intent to distribute over 100 kilograms

of marijuana; district court applied § 2D1.1(b)(1) because codefendant possessed loaded revolver, and this court remanded to

determine whether co-defendant's possession of weapon was

reasonably foreseeable to defendant); United States v. Molinar20

close and ever present partner of illegal drugs, either to steal

the drugs, or to steal money or other items to purchase them.) 

Therefore, as discussed infra, it would likewise be more than

reasonable to infer that Condren possessed the firearm in order to

protect even the small amount of drugs kept, or intended, for his

personal use. See United States v. Martinez, 808 F.2d 1050, 1057

(5th Cir.) ("Firearms are `tools of the trade' of those engaged in

illegal drug activities."), cert. denied, 481 U.S. 1032 (1987). In

any event, § 2K2.1(b)(5) does not specify that a certain amount of

drugs are required to support the enhancement. Indeed, it is

mandated whenever a firearm is possessed in connection with any

other felony, regardless of whether it involves drugs. U.S.S.G. §

2K2.1(b)(5).20 

Moreover, Condren's assertion that § 2K2.1(b)(5) is not

applicable, in this case, because only a small amount of drugs was

involved, and was kept only for his personal use, is unsupported by

the case law he relies on.21 The § 2D1.1 cases Condren cites are
Apodaca, 889 F.2d 1417, 1424 (5th Cir. 1989) (presence of Uzi

rifle, handgun, and ammunition "at the time when a considerable

quantity of marijuana was seized on the premises" supported 18

U.S.C. § 924(c) conviction); United States v. Robinson, 857 F.2d

1006, 1010 (5th Cir. 1988) (jury could reasonably conclude that

possession of firearms was integral part of felony of possessing

cocaine with intent to distribute, where availability of firearm

increased likelihood that criminal undertaking would succeed).

21

inapposite; that they happen to involve larger quantities of drugs

than does this case is perhaps due to the fact that § 2D1.1

pertains specifically to offenses involving drugs, including drug

manufacture, import, and trafficking.

In contrast, as noted, § 2K1.1(b)(5) enhancements may be based

on any felony, including, as here, felony possession of a small

amount of drugs. See Sanders, 990 F.2d at 583, 585 (enhancement

applied where defendant possessed firearm in connection with drug

trafficking; defendant was carrying 7 grams of cocaine, 33.7 grams

of heroin, and assorted drug paraphernalia); see also United States

v. Rivera, 898 F.2d 442, 445-46 (5th Cir. 1990) (leaving open

possibility that, on remand, defendant could receive enhanced

sentence under § 2D1.1(b) for possession of firearm during

possession of as little as .37 grams of heroin).

b.

As to the possible contention that the firearm was simply

collateral for a loan, instead of being possessed for Condren's

drug-related activities, we reiterate that the enhancement

provision speaks to the real and obvious increase in the risk of

violence (threat to public safety) through the mere possession of

firearms in connection with drugs. See Guerrero, 5 F.3d at 873.
22 As noted, Condren asserts that the drawer was locked. He does

not, however, contend that he could not unlock it, or that the

firearm was otherwise unavailable to him. The record does not

contain evidence on either point, except for his stating to the

probation officer that the drawer was locked. 

22

This increased risk obviously exists regardless of whether the

weapons are used, and regardless of how, or why, they were

obtained, or for what other reasons they are possessed. Id.

2.

We turn now to the findings of fact and conclusion of law

concerning the connection. As stated, a finding is upheld unless

it is clearly erroneous -- it is implausible in light of the record

as a whole. E.g. United States v. Martinez-Moncivais, No. 92-5593,

1994 WL 38657 at *8 (5th Cir. Feb. 11, 1994) (citing United States

v. Sanders, 942 F.2d 896, 897 (5th Cir. 1991)).

Condren's firearm "was found in the same location where drugs

or drug paraphernalia [we]re stored or where part of the

transaction occurred." United States v. Hooten, 942 F.2d 878, 882

(5th Cir. 1991) (construing § 2D1.1, and citing cases). It was in

close "physical proximity to narcotics", Gomez-Arrellano, 5 F.3d at

466-67 (10th Cir. 1993) -- in a drawer of the very desk where the

drugs were found. Furthermore, it was fully loaded. Regardless of

how it came into Condren's possession, it was readily available to

him to protect his drug-related activities; and, based on our

review of the record, the district court implicitly finding this

was not clearly erroneous.22 

Therefore, the district court did not err, as a matter of law,

in concluding that the firearm possession was "in connection with"
23

the drug possession. See Hernandez, No. 91-8249, slip op. at 2

(concerning § 2K2.1(c); "From the undisputed evidence that the

firearm was found in the room with the marijuana, the court could

conclude that the firearm was used in connection with the

possession of the marijuana."); United States v. Thomas, 12 F.3d

1350, ____ (5th Cir. 1994) (under 18 U.S.C. § 924(c), government

need only show that gun was available to provide protection to

defendant's drug activity); and Pace, 10 F.3d at 1117-19

(construing 18 U.S.C. § 924(c) and quoting Capote-Capote, 946 F.2d

at 1104 ("Weapons in the home may facilitate a drug crime because

the defendants could use the guns to protect the drugs".) (emphasis

in Pace; citations omitted)). 

III.

Accordingly, the court correctly applied § 2K2.1(b)(5). The

sentence is 

AFFIRMED.